Refusal to define death disappoints lawyers

A Superior Court justice has decided the question is moot when it comes to which death certificate for an Orthodox Jewish man is valid.

Lawyers in Ontario say they are disappointed with a decision by Justice Glenn Hainey in Ouanounou v. Humber River Hospital on Nov. 9, because it does not provide further clarity about how to accommodate people whose religious beliefs about death are different from common medical views.

“I’m disappointed that the court decided not to render a ruling upon the merits of the application,” says Hugh Scher, founder of Scher Law PC in Toronto, who represented Ouanounou’s family. Instead, the decision focused on whether or not the question of which of Ouanounou’s death certificates is valid was moot.

This means the case cannot give the medical community further guidance about how to best accommodate people whose religious beliefs say that someone remains alive even if a doctor has declared them brain dead, says Scher.

Scher says he is not able to say if there will be an appeal. Any appeal, he told Law Times, would be on the basis of whether or not the issue is moot.

Hainey’s decision describes the case as “tragic.” Shalom Ouanounou was a devout Orthodox Jew who had an asthma attack at home on Sept. 27, 2017 and was then transported by ambulance to Humber River Hospital, the decision says. He was put on life support, and, on Sept. 30, 2017, critical care doctors declared him brain dead and a coroner issued a death certificate.

Hainey’s decision says the family objected to this because “in accordance with Shalom’s and their religious beliefs, Shalom was not considered to be dead under Jewish law until he stopped breathing and his heart stopped beating.”

According to the Nov. 9, 2018 decision, after doctors declared Ouanounou brain dead, the family requested a court order that Ouanounou remain on life support and his death certificate be rescinded, among other things. On Nov. 1, 2017, Hainey granted an interlocutory injunction ordering life support to continue until all issues in the case could be heard. In February 2018, arguments were presented about whether or not the death certificate should be rescinded and if the Consent and Capacity Board should have jurisdiction to adjudicate and determine disputes where applicants challenge the definition of brain death.

“Shalom was an Orthodox Jew, and in his belief, life only ends when his heart stopped beating,” says Charles Wagner, a partner at Wagner Sidlofsky LLP in Toronto. Wagner represented B’nai Brith of Canada League for Human Rights, Vaad Harabonim of Toronto and the Centre for Israel and Jewish affairs, Jewish organizations that intervened in the case.

“According to his beliefs, the removal of life support is tantamount to murder,” says Wagner.

Ouanounou experienced irreversible cardiac and respiratory failure on March 8, 2018, Hainey’s decision says. The family found a Jewish doctor who was willing to issue a death certificate, and Ouanounou was then buried, the decision says.

Hainey then asked the parties to submit applications about whether or not the question about which death certificate was valid is moot, he wrote in the decision. The parties held “the application is not moot because there is still a live issue between the parties,” Hainey’s decision says. But he disagreed.

“These issues are now academic,” Hainey wrote. “Shalom’s death is undisputed and there is no need for the Consent and Capacity Board to consider his treatment.”

John Campion, a partner at Gardiner Roberts LLP in Toronto, who represented intervener Euthanasia Prevention Coalition on a pro bono basis, says constitutional cases like this could potentially “change the goalposts as to when the proper definition of death is extended.”

Maintaining life support is “a costly effort,” he says, “but the cost in the circumstance is justified.”

Hainey’s decision says he declined to comment on the issue because, in his view, the court decided the issue of medical definitions of death when Justice Lucille Shaw issued her decision in the McKitty v. Hayani case in June. In it, Shaw was being asked to determine if Taquisha McKitty, a Christian, was indeed dead after doctors declared her brain dead. She has been on life support in Brampton, Ont. since September 2017.

Shaw ordered McKitty be taken off life support. However, that decision is being appealed, and McKitty remains on life support.

Scher is representing the McKitty family, and he says the appeal will be heard in December.

Daphne Jarvis, a partner at Borden Ladner Gervais LLP in Toronto, who represented Humber River Hospital, says the hospital is “pleased that Justice Hainey has relied on and affirmed the clarity and the breadth and depth of Justice Shaw’s reasons for decision in the McKitty case. Both have confirmed the long-standing recognition in law that death is a fact based on medically objective criteria and not on the subjective beliefs of patients and families.”

Erica J. Baron, a partner at McCarthy Tétrault LLP in Toronto, who represented the doctors in this case, declined to comment because she is also representing doctors in the McKitty case.