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Court okays=
span>
lawsuit against lawyers for alleged ‘deceit’
By Cristin Schmitz<=
br>
The Lawyers Weekly
Ottawa
September 14 2007
Alberta’s top court has permitted the fat=
her
of a Jehovah’s Witness teenager who died of leukemia to sue, on behal=
f of
his daughter’s estate, the Watch Tower Bible and Tract Society of Can=
ada
lawyers who he alleges advised her to reject the blood transfusions prescri=
bed
by doctors.
[Hughes
Estate v. Gnam, Brady and Watch Tower
Society et al.]
The estate’s claims for alleged
“misrepresentation and deceit”– which are vigorously deni=
ed
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 fa=
vour
of the defendant lawyers and the Watch Tower Society which struck some of t=
he
claims.
Speaking generally, Justices Peter Martin, Jack
Watson and Frans Slatter=
span>
commented in their per curiam judgment
released Aug. 31 that “it is not at all clear to what extent a religi=
ous
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 beli=
ef
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 di=
es?
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, complai=
ns of
statements he alleges the two defendants made to his 16-year-old daughter. =
Gnam represented Bethany, and Brady represented her m=
other,
in the unsuccessful appeal of a 2002 court order that made Bethany a tempor=
ary
ward of the state on the basis that her religiously-motivated refusal of th=
e 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. “ThatR=
17;s
well beyond my role as a lawyer and I think that would be improper
conduct.”
Gnam
called it ”a very worrisome development=
221;
that a lawyer’s religious beliefs should be used to attack his
professional representation of a client. Under Canadian law judges and lawy=
ers
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 t=
he
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 pres=
sure
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 ar=
ound
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 lif=
ted
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 Albe=
rta
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 r=
uled
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 wro=
ng
and contrary to scientific knowledge.”
The Supreme Court of Canada has ruled definitiv=
ely
that the law does not permit courts to adjudicate on the validity of religi=
ous
beliefs, she noted. “Mr. Hughes asks this court to interpret the cont=
ent
of a religious precept,” she reasoned. “This request is not
But the Court of Appeal ruled last month that C=
harter
jurisprudence makes it clear that the right to freedom of religion “i=
s a
very personal and subjective right.”
“Freedom of religion does not include any
right to impose religious beliefs on third parties” and “is sub=
ject
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.<= o:p>
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 religi=
ous
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 “disfellowshipp=
ed”
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-order=
ed
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 roles̶=
1;
as counsel for his wife and daughter, and as lawyers&nb=
sp;
who act for, and are members of, the Watch Tower Society which conde=
mns
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 c=
ame
into Bethany’s life when she was 16 years of age. She says to me
‘Mr. Gnam, represent me. I don’t wa=
nt
blood transfusions but I want treatment’. And I do the job.’ And
further, to make this whole idea preposterous, i=
s 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 misrepresentat=
ions
pleaded are that the lawyers falsely represented that blood transfusions ar=
e an
experimental treatment, and that such treatment is ineffective. “Ther=
e 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 transfusion=
s 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.”
The Lawyers Weekly