Court okays lawsuit against lawyers for alleged 'deceit'

Lawyers Weekly/September 14, 2007

Ottawa: Alberta's top court has permitted the father of a Jehovah's Witness teenager who died of leukemia to sue, on behalf of his daughter's estate, the Watch Tower Bible and Tract Society of Canada lawyers who he alleges advised her to reject the blood transfusions prescribed by doctors.

The estate's claims for alleged "misrepresentation and deceit"– which are vigorously denied by the two defendant lawyers – venture into terra incognita at the crossroads of lawyers' religious beliefs and duties and their professional obligations.

"The boundaries of freedom of religion are too unclear to warrant striking out" the plaintiff's claims, the Alberta Court of Appeal wrote in reversing, in part, a decision below in favour of the defendant lawyers and the Watch Tower Society which struck some of the claims.

Speaking generally, Justices Peter Martin, Jack Watson and Frans Slatter commented in their per curiam judgment released Aug. 31 that "it is not at all clear to what extent a religious adherent can convince another person to take actions for religious reasons that will cause him or her bodily harm or even death, even if the religious belief is sincerely held.

"Assume, as an example, that a religious adherent persuades a third-party diabetic that he or she should stop taking insulin, and that divine intervention will cure him or her. Assume further that the diabetic follows this advice and dies as a result. Can it be said that the estate of the deceased would have no cause of action against the religious adherent? If the religious adherent withheld antibiotics from a sick person, either in favour of a divine healing, or in favour of traditional herbal remedies, is the religious adherent immune from an action if the patient dies? Cases... show the answer to these questions is far from clear."

The suit was commenced by Lawrence Hughes, administrator ad litem of the estate of Bethany Hughes, against Shane Brady and David Gnam of W. Glen Howe and Assocs. in Georgetown, Ont., the firm which does much of Watch Tower Society's legal work.

Hughes, who is divorced from Bethany's Jehovah's Witness mother, Arliss, complains of statements he alleges the two defendants made to his 16-year-old daughter. Gnam represented Bethany, and Brady represented her mother, in the unsuccessful appeal of a 2002 court order that made Bethany a temporary ward of the state on the basis that her religiously-motivated refusal of the blood transfusions risked her life and thus demonstrated that she was incapable of exercising independent judgment about her medical care.

Gnam told The Lawyers Weekly neither he nor Brady made the alleged misrepresentations to Bethany or her mother. "As a lawyer my role is to take the instructions of the client and represent them in court or represent them in a legal forum, and so my religious beliefs, whatever they might be, whether in agreement with my client's or opposed to my client's are irrelevant and so it certainly would not be my responsibility to try to convince my client of my religious beliefs," he said. "That's well beyond my role as a lawyer and I think that would be improper conduct."

Gnam called it "a very worrisome development" that a lawyer's religious beliefs should be used to attack his professional representation of a client. Under Canadian law judges and lawyers are presumed to be acting as judicial officers in compliance with their professional standards, he said. "We have never wanted to be in the situation in Canada where we ask the judge: 'What religion are you?' Or, for example, do we need to know if a lawyer representing a gay person is gay? Does that impair, or enhance, the ability to represent the person? We just don't go there."

Gnam suggested religious prejudice lies at the root of the allegations which are proceeding to court.

"If you are a Jehovah's Witness it's presumed, you are stereotyped to be, putting pressure on people. If I was a Jehovah's Witness, it's presumed that I am putting pressure on Bethany because she is a Jehovah's Witness."

However, Calgary's Jennifer Pollock, who argued the appeal pro bono as one of several lawyers who have assisted the self-represented Hughes at no charge, said the case raises thorny issues around conflicts of interest, and the extent to which religious freedom encompasses actions taken in "non-religious areas" such as the provision of legal and medical advice.

"I would say the veil of religion was lifted by the [appeal] court," Pollock suggested. "I think that for lawyers they should consider their position and the conflicts that they are placed in these matters. Certainly this [decision] should give lawyers caution."

Bethany died in September of 2002, seven months after being diagnosed with a very aggressive form of cancer, and two months after doctors stopped her court-ordered chemotherapy, which was supported by blood transfusions, because the treatment wasn't working. By then she had had 80 blood transfusions.

With respect to Hughes's subsequent civil suit, the Court of Appeal overturned, in part, a decision last year by Alberta Queen's Bench Justice Patricia Rowbotham (who has since been elevated to the appeal court). Justice Rowbotham struck out Hughes's allegations that the two lawyers, who the appeal court described as Jehovah's Witness "elders", engaged in deceit and misrepresentation by telling Bethany that "blood transfusions... would not help cure her cancer and intentionally misstated to Bethany that a chemotherapy/blood transfusion treatment protocol for her leukemia was experimental when in fact it was not."

Justice Rowbotham ruled that the plaintiff's claims of deceit and misrepresentation should be struck out because "the crux of the statement of claim is that the beliefs of the Jehovah's Witness regarding blood transfusions are wrong and contrary to scientific knowledge."

The Supreme Court of Canada has ruled definitively that the law does not permit courts to adjudicate on the validity of religious beliefs, she noted. "Mr. Hughes asks this court to interpret the content of a religious precept," she reasoned. "This request is not justiciable and those portions of the statement of claim which raise those allegations are struck."

But the Court of Appeal ruled last month that Charter jurisprudence makes it clear that the right to freedom of religion "is a very personal and subjective right."

"Freedom of religion does not include any right to impose religious beliefs on third parties" and "is subject to those limitations that are justifiable in a free and democratic society," the appellate court stipulated.

"Whether religious views provide a defence to, or justification for, misrepresentations that cause bodily harm or death should only be decided on a full factual record," they further held.

Alluding to the test for striking pleadings as disclosing no reasonable cause of action, the appeal court concluded that it was "not 'plain and obvious' that a sincerely held religious belief would be an answer to a claim where application of the religious doctrine is said to have caused a death."

Hughes, who says his approval of Bethany's treatment regime led to him being shunned by his wife and other children, as well as being excommunicated and "disfellowshipped" by his Jehovah's Witness congregation, contends, in essence, that the Watch Tower Society, the two lawyers, Bethany's minister, as well as a number of doctors and medical centres who treated her after her court-ordered treatment failed, conspired in the wrongful death of his daughter.

With respect to Brady and Gnam, he alleges the lawyers were "unable to differentiate their roles" as counsel for his wife and daughter, and as lawyers who act for, and are members of, the Watch Tower Society which condemns blood transfusions. With respect to Bethany's medical treatment, they were therefore unable to give "objective and reasonable advice" in her best interests, he contends.

Gnam adamantly denies that. "Our position has always been I was not Bethany's minister, never was, never gave her religious advice of any kind, not my role," said Gnam. "I came into Bethany's life when she was 16 years of age. She says to me 'Mr. Gnam, represent me. I don't want blood transfusions but I want treatment'. And I do the job.' And further, to make this whole idea preposterous, is that Bethany was not represented by just me, but I am the only [one] that's sued." Bethany was also represented, in appeals, by "eminent counsel" David Day and Eugene Meehan, he noted. "I think everybody accepts that neither Mr. Day nor Mr. Meehan are Jehovah's Witnesses."

The appeal court stressed that the estate's pleadings do not require any examination of the "truth" of the defendants' beliefs about blood transfusions since the misrepresentations pleaded are that the lawyers falsely represented that blood transfusions are an experimental treatment, and that such treatment is ineffective. "There is no indication on the record that either of these topics are the subject of any religious belief of the respondents," said the Court of Appeal. "The record indicates that the respondents are opposed to transfusions as a matter of faith, not because they are experimental or ineffective."

The appeal court also admonished that "the objective validity of the belief of the respondents that blood transfusions are prohibited by scripture is not an issue in this litigation, will not be the subject of discovery or production, and will not be an issue at trial. This is so even though the respondents may raise their sincerely held beliefs as a defence or justification."

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