This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
By Kimberly Gale and Matthew McEnery
Organ Donation in Other Provinces
On April 12, Nova Scotia’s legislature unanimously passed the Human Organ and Tissue Donation Act, legislation that presumes consent for organ donation. With that the province became the first jurisdiction in North America to pass such legislation. Following the story of Logan Boulet, victim of the Humboldt bus tragedy who gave six others the gift of life by donating his organs, it is unsurprising that organ donation has found its way into public eye.
Canadian law grants substantial testamentary freedom in terms of real and personal property to individuals in the disposition of their estate. This, however, is not true in respect to the human remains of the deceased.
Common law has long upheld the “no property” rule” which states that the human body cannot be held as property. A testator may choose to state in his will how he wants to be buried, but ultimately it is the executor’s discretion to determine how and where to the bury the deceased.
In contrast, Quebec has a long history of recognizing human remains as property. In today’s Civil Code, Article 42 reflects the civil law approach to testamentary disposition of human remains stating that if individuals choose to dispose of their remains by will, the executor is bound by their instructions. However, the case of Robinette v. Cliché  J.Q. no 463, in which the executor scattered her husbands’ ashes against his wishes, illustrates the limitation of Article 42 as no sanction exists.
In British Columbia, testamentary freedom operates alongside the no property rule through the Cremation, Interment and Funeral Services Act. The legislation moves beyond the historical principles and allows for the ultimate discretion of the executor in determining disposal of the deceased’s remains. For example, the consideration of a deceased’s religious beliefs under s. 5(5) which has been dismissed in Ontario court cases. Section 6 provides an individual with testamentary freedom and “is binding on the person so under section 5 has the right to control the disposition of those remains.”
Organ Donation in Ontario
The Act is a departure from Ontario’s common law approach but appears to lack the “teeth” in terms of enforcement as with Article 42 in Quebec. When the testator is silent in his or her wishes, the Act encourages litigation to decide.
In Ontario despite the no property rule, the Trillium Gift of Life Network Act has embraced the notion of greater testamentary freedom over organs, tissues, fluids and the human body.
Part II of the Act facilitates contributions from deceased donors by allowing an individual to consent to organ donation and medical research before death as noted in s. 4(1). Under s. 4(3), the testator’s wish to donate is legally binding.
This gifting of one’s organs is directly in opposition with the no property rule. The legislation as a whole is also unusual because any language regarding gifts is inexorably connected to the gift being an object of property, since only gifts can be donated. Under the Act, human remains or organs have been expressly excluded from being considered as objects or property capable of being gifted.
While Nova Scotia has legislated the presumed consent route, we do not believe that this is fitting for Ontario based on the models presented above. While Nova Scotians can opt out of organ donation, the Civil Liberties Association has raised concerns regarding the province’s power over personal autonomy. While the Act in Nova Scotia is not expected to be proclaimed for 12 to 18 months to allow time for planning, public education and training for health care workers, Ontario will have to wait to analyze a new provincial model. Ontario has the foundation to properly empower Ontarians to save lives by donating much needed organs to those in need.
Striking the Right Balance
That being the case, if Ontario is ever to pursue legislative reform the province should look to B.C.’s Funeral Services Act for guidance.
Considering the Trillium Gift Act and Nova Scotia’s bold step, Ontario should follow the model in place in B.C. and increase the testamentary freedom of its residents by allowing Ontarians the final say over the disposal of their remains. Through better education and public awareness, Ontario can increase its donorship while not treading on historical common law principles or risking personal autonomy.
Matthew McEnery is an LL.M candidate at Osgoode Hall and summer law student at Gale Law.