 This sitting of the Supreme Moot Court of Dalhousie at Calvax with the Honourable Justice Timothy Gabriel, the Honourable Justice Duncan Beverage and Ms. Narnia Petronia is now presiding, is now open. All persons who have anything to do with it, draw near and give your attendance and he shall be heard. God save the being. Good evening everyone. My name is Camille Caverhan and I'm the Dean of the School of the School of the Gold and it's my pleasure to welcome you all to this special Moot, which by my calculation has been in place for about 95 years. I'd like to begin by acknowledging that Dalhousie University is located in Vietnam in the ancestral and non-cedive territory of the late mom, year old, treaty people. We also recognize that African Nova Scotians are a state of people whose histories, legacies and contradictions have enriched that part of my mom's Nova Scotia for over four hundred years. I'd also like to welcome and say a warm thank you to the bench for this evening. This evening our judges are the Honourable Justice Duncan Beverage, the Nova Scotia Court of Appeal, the Honourable Justice Timothy Gabriel, Supreme Court of Nova Scotia and Ms. Melody Kacrunia, president of the Nova Scotia Barista Society. And of course tonight's participants, we certainly can't forget to introduce Dan Handley, Nicole Larstie, Jack Bennett, Leandra Bowman and Emma Boston. Now the Smith Shield began in 1927 and it is the most prestigious mooting event at the School of Law. I want to extend thanks to the law firm, Historic Calvary, for their continued funding of this event. And this evening we have Historic Calvary's representative, Sarah Walch, class of 2016, who's come back to represent Historic Calvary this evening. I want to also thank Professor Joshua Shaw for preparing this year's problem and also Associate Dean Lucy Ego and her assistant Danielle Hill for organizing this event. I'd like to warn you all that the event is being audio and videotaped. I'd ask you also please to take a moment now to turn off your electronic devices. Please put your phones on mute. After the event there will be bonus and a man that you can join us on the third floor will probably launch for a reception and for those of you who don't know where it is, just follow the crowd and you'll probably be fine. The creator of the problem as I mentioned Professor Joshua Shaw, he's now going to say a few words about the problem and we will then turn things over to the guest. Sorry I don't have much space here but I'm going to try and make it work and also to make sure I'm on the microphone. Good evening, eminent jurists, faculty, staff, students and other members of our community. It is an honor to stand before you to introduce the 2022 Smith's Shield Moat Competition. My name is Joshua Shaw and I'm a Shulik Fellow at Shulik School of Law, Dalhousie University and alumnus of this school. I'm so very delighted to return to Halifax in this teaching role, teaching tort law and jurisprudence to juris doctor students and acting as faculty members supervising this Smith's Shield Moat. I'm a jurisprudent or to put that a little bit more plainly, a legal theorist who focuses on laws affecting the use disposal of dead bodies and body parts. Doing so requires me to be familiar with laws of public health, medical law and the common law of torts and property, as well as some other more historical at this point notions of law. I hope in part that today's root problem demonstrates the utility of such research area and how problems classically explored in jurisprudence or legal theory can be consequential. The case under appeal is Studley and Cape Prudence Catholic Hospital. It is a fictional case written by me, but in our fictional world the Supreme Court of Nova Scotia rendered a decision favouring the defendant, the hospital dismissing Ms. Marge Studley's claims to her amputated arm. Ms. Studley appealed the trial decision to the Dalhousie Supreme Moat Court, a court that is not concerned with standards of review, but just so happens to have appellate jurisdiction over matters arising in the also made up region of Cape Prudence, Nova Scotia. By way of introduction I think it is helpful to consider the legal history. In 1614 in the Haines case the dead body was reportedly described by justices of the sergeants in as being by the lump of earth it hath no capacity. The absence of capacity meant that title to a shroud did not fest in the individual wrapped in it, but remained with whom placed the property there. To that English jurist Sir Edward Koch, Matthew Hale, William Blackstone added that the case also stood for another rule, no property in a corpse. For these jurists the dead body lacked capacity of a different kind too. Not only did the dead body fail as a subject of rights of common law, it was also not an object suitable as property. Rather the dead body was of ecclesiastical cognizance alone. Sir Edward Koch is perhaps the first jurist in the common law tradition to articulate the rule, noting in 1644 that cadavers are Nellius in bonus, the property of no one, and that in burial the cadaver is given up to the worms. In 1736 in Sir Matthew Hale's treatise the history of the pleas of the crown, the dead body is again Nellius in bonus. Sir William Blackstone later described a similar rule in volume two of his commentaries, apparently drawing upon the circumstances of the 1614 decision of the Haines case. Writing, and I quote, stealing the corpse itself which has no owner, though a matter of great indecency, is not to felony unless some of the grave cloths be stolen with it. The heir has a property interest in the monuments and us kitchens of his ancestors, yet he has none in their bodies or ashes, nor can he bring any civil action against such as indecently at least if not impiously violate and disturb their remains when dead and buried. Close quote. The rule, no person has property in corpses, was reportedly applied in the 1749 case of XLB in Haineside, dismissing a civil suit brought against a physician who disinterred the remains of two infants. Other decisions are reported to have invoked the no property rule in the 19th century, but the first written decision invoking the rules in its established form was in the 1882 case of Williams and Williams, involving a dispute over whether the deceased could, by means of their testamentary wishes, direct for the cremation of their remains. As a result of such rule, no person by will or other instrument can legally dispose of their body after death. In place of the common law, especially the law of property, it was ecclesiastical law, church law, a once dominant parallel system of law in England responsible for both spiritual and non-spiritual matters that regulated the dealings of human tissue. Ecclesiastical law has receded from ordinary public life with municipalities and corporations often stepping in to administer the rights of death, but the no property rule has been preserved, such as the case throughout common law jurisdictions, drives in part from this English legal tradition, like Canada, creating a strong presumption against alternative forms of disposing the dead or other biological matter. Exceptions have since formed in the common law, albeit limitedly. Those exceptions factor in the appeal you are about to hear, potentially answering two questions post the Dalhousies have pre-moved to court. Number one, is an amputated armed property that a patient can request back from hospital? Number two, if it is property but cannot be returned, can the patient receive damages? This case might seem odd, far-fetched or academic and extraneous. This is usually how people respond to my research area. But at least for the moment, I urge the suspension of judgment and ask you to listen carefully to the arguments to be made in this moot. The fictional case of Studley and Kate Prudence Catholic Hospital is based on interviews I did for my dissertation, with individuals whose tissues were taken from them, disposed in ways contrary to their wishes. One interview in particular has especially inspired the scenario we are considering. That interview was with a young man whose experiences mirrored much of Ms. Studley's situation. As my interview with this young man closed, he expressed hope that his participation in my doctoral dissertation might help others, similarly without limbs or tissues falling in accident, but who desire their return to help them feel whole, to restore a sense of autonomy, to maintain dignity. He did not want others to have to face hospitals, but in his case he reached a settlement with a hospital and did not pursue a claim in court. He considered himself lucky because his lawyer told him there was no hope in hell that he would succeed because of that no property rule. But he still felt a sense of injustice, if not for himself anymore, at least for others who may not be so lucky. The case of Studley and Kate Prudence Catholic Hospital is dedicated to all my interview participants, but especially this young man whose tenacity, whether we agree with him or not, is a testament to the importance of law always in tandem with claims to social justice. The facts of the case are as follows as it was reported in the lower court decision, and ordinarily this wouldn't be stated by someone like me, but I think for all your benefits you can follow along with the arguments I should set out those facts. The appellant was leisure boating in Kate Prudence in July 2017 when she suffered a severe injury in an accident and was taken to hospital operated by the respondent. She was admitted and underwent surgery, which included amputation of her right arm. Sometime during her recovery in hospital, the appellant asked a nurse employed by the respondent to arrange for the burial of the arm. The appellant also asked if it would be possible to obtain the arm later after its burial, in case she wanted it relocated somewhere important to her. The nurse noted that he had not received such a request before, but he would check what the respondent could do. The respondent did not have a practice in place for the burial of non-reproductive tissues, but arranged for the burial of the arm in a mass grave with multiple fetuses and infant babies on its land. Another nurse employed by the respondent followed up with the appellant and informed her that it would be buried according to the usual practice in a communal grave. The appellant did not make any further inquiries at this time and authorized the burial as described. With the appellant's authority, the respondent endeavored to lawfully dispose of the appellant's arm. The arm was buried as described in a communal grave. That grave was subsequently consecrated in accordance with the diagease, cannons, because the respondent is a Catholic institution. The burial site is a churchyard adjacent to the respondent hospital and generally not subject to Nova Scotia's cemetery and funeral services act. The churchyard includes multiple communal graves, which the respondent alternates between for the use of deceased fetuses and infant babies, as well as dozens of individuals marked graves for past members of the Cape Prudence Catholic community. Injuries are often life-changing. The appellant, until the accident, was a competitive rower and became depressed following the procedure, which was treated with a high dose of antidepressants and therapy. One year after the procedure with the help of friends, the appellant sent a letter to the defendant thanking the surgical team for their care in assistance with the burial of the limb. She also acknowledged the letter that she needed more time to decide what to do with it. The respondent did not reply to the letter. It was not until April 2022, after about four more years of therapy, that the appellant contacted the respondent to ask for the communal grave. The location of the arm within the grave and whether she could have it disinterred. Initially, the appellant planned to have the arm reburied in a municipal cemetery near Halifax. She testified that this was her plan when she asked the respondent's employee to arrange for the arm's burial. At some point in time, in the intervening five years, she reconsidered that plan. Instead, the appellant wanted the arm to be sent to a local taxidermist to remove the soft tissues, to clean and articulate the bones, and create a decorative piece for her home. She also testified to having other ideas as to its use, but that she was confident her latest plan was the best one. The appellant shared her latest plan with the respondent when she requested a disinterment in April 2022. The respondent reported and the appellant acknowledged that she also mentioned she considered other uses of the arm. The respondent declined, stating that it was not possible as the arm was mixed with the remains of the fetuses and infants, and they did not want to disturb their eternal repose. The hospital further cited public health concerns with disinterment, noting that the arm was likely in a significant state of decomposition and their concern with the appellant's shifting plans for its use and disposal. Following the news, the appellant's depression worsened, and she lost her employment as a rowing instructor, which was already challenged by the injury. This compounded her anguish over the loss of her competitive status in rowing as an athlete. The appellant commenced an action with the Supreme Court of Nova Scotia in this fictional scenario. Don't go looking for the actual case, it doesn't exist, and doesn't reflect the views of the Nova Scotia judiciary. Brought this action in court against the respondent claiming the arm was her personal property and had been taken unlawfully. Under the tort of Detnu, she sought recovery of the arm. In the alternative, if not Detnu, she claimed she was owed damages under the tort of conversion, for the respondent's wrongful disposal or interference with her property by burying the arm in a manner that prevented its disinterment. The lower court dismissed both claims and leave to appeal to this honorable court was granted. We will now hear the arguments of that appeal before the court behind me, and that's all I have to say. Thank you. So this is the appeal of March Studley and Cape Print Foods Catholic Hospital. Mr. Bennet and Ms. Baumann here. Here for your health, good evening to you both. Nicole Arske and Emma Walsson here for the respondent, good evening to you both. Whenever you're ready, Ms. Baumann. Chief Justice, Justice's, good evening. My name is Jack Bennet, counsel for the appellant, Ms. March Studley, and I'm joined by my colleague, Ms. Leandra Bowman. My friends, Ms. Nicole Arske and Ms. Emma Walsson represent the respondent, Cape Prudence Catholic Hospital. The facts for this matter are found on pages five and six of the appellant's factum. Subject to this honorable court's wish to hear a recitation of those facts, I propose that we proceed directly to argument. For a vast majority of Canadians, it's difficult to imagine the trauma experienced by Ms. Studley when she lost her right arm to an emergency amputation by the respondent hospital. And yet, it's harder still to understand how justice is now served by a law which denies Ms. Studley the opportunity to possess that lost arm and engage its utility through, so as to express her personal identity safely and privately in the comfort of her own home today. While there are many issues underpinning this appeal, in this broader light, this case requires us to consider the extent to which it's appropriate for the common law to restrict vulnerable individuals such as Ms. Studley from fulfilling expressions of their personal identity. Ms. Studley appears before this honorable court to obtain a remedy in debt new or in the alternative conversion for the injustice caused by the hospital's ongoing withholding of her lost arm. It is the appellant's position that we live in a modern society where our interests, our values, and our laws stand upon the foundations of rights and human dignity. And accordingly, we submit that this injustice cannot go on. Therefore, we submit and we urge this honorable court to allow Ms. Studley's appeal. In my submissions, I will be addressing the first issue which concerns the trial judge's error in dismissing Ms. Studley's action in debt new. My colleague, Ms. Bowman, will be addressing both the sub issue of abandonment and the issue regarding the action in conversion. By way of overview, the test for debt new follows two distinct stages. At the first, Ms. Studley as claimant must show that she has a better personal property interest in the arm than the hospital. In this case, the trial judge aired enrolling that the arm could not be subject to such an action because per the application of the no property rule, the arm cannot be personal property because it is not a chattel. Subsequently at the second stage, Ms. Studley must then show that she requested the arm and that the hospital refused her request. These facts are not contentious. However, the trial judge made an additional error in ruling that the hospital no longer has possession of the arm, given its burial, or in the further alternative that they had a lawful excuse to deny Ms. Studley's claim, given the gravesite's consecration and the alleged identification and public health challenges associated with its disinternment. I intend to proceed by addressing each stage of the test consecutively and we'll conclude by briefly stating the relief the appellant seeks under the action in debt new. To begin at the first stage, we submit that the arm is a chattel by virtue of it being an exception to the historic no property rule. The rule generally stands for the proposition that human corpses cannot be property. This is a historic common law rule which continues to be applied today subject to certain developments which have enabled a flexibility allowing for exceptions to the rule. The first of such exceptions were found over 100 years ago in the case of Dudaward, but now such a finding is based on a contextual analytical framework outlined and applied in Yearworth. To be clear, Dudaward, like early applications of the rule before it, is no longer guiding law. This honorable court should follow the approach outlined and applied found as set out in Yearworth. As discussed by the court in that decision, their approach is applicable to other contexts where the rule is sought to be applied and Yearworth has been followed in leading Canadian decisions such as JCM and LAM. Though the item in this case may be novel in that it's a separated arm, the approach which we apply is not and it's on the application of such a framework that we submit the arm is personal property. The relevant factors include the applicability of the purposes of the rule, the attributes of the arm as in relation to other chattels, the balance of public policy interests engaged by Ms. Dudley's claim, and of course Ms. Dudley's significant personal interest in the arm itself. To focus on one of these factors, the arm's attributes we submit strengthen the appellant's position because they reflect features common to other chattels and they particularly they reflect all of the determinative features identified in Yearworth. My friend takes the position that the arm's acute resemblance of its human source favors application of the rule, however with respect to my friend we submit this argument fails for two reasons. First and perhaps most generally, the question of whether the rule applies is not determined by any single factor. Such a conclusion requires a contextual analysis that weighs and balances a multitude of factors as they may be relevant. Just as an exception cannot rely on one factor, neither can the application of the rule in a case such as this. But the second reason this argument fails, and this is perhaps more particular, is that there is no principle supporting the position that physical resemblance to human body parts provokes application of the rule. Beyond the fact that this ignores the reality that body parts can take different appearances, if this were a determinative factor it would then follow that prosthetic devices, wigs, cosmetic eyelashes and nails, even movie props which resemble human body parts would then also absurdly not be property. We do agree that there is weight to be given to the physical characteristics of the arm and considering whether it is an exception to the rule. However the the characteristic which is important in this case is the arm's separated condition and the chain of social meaning which flows from this condition. In other words, because the arm is separated it's clear that it can be possessed and therefore alienated and therefore it follows that it can be owned. In Nova Scotia when we consider the broader legal context the existence of the human organ and tissue donation act reflects this social understanding as it is the donation act which acknowledges and endorses in some cases the alienability of human body parts. And we would submit that the recognition of property rights in relation to this physical condition is appropriate and necessary because property rights will function to protect such items from undue abuse and state interference. This brings us nicely to the factor of public policy. My friend suggests that allowing Ms Dudley's claim will increase the risk of commodification of human material and while this policy consideration would be troubling if proven it is insufficient on its own to deny Ms. Dudley's claim for three reasons. First and perhaps most simply allowing Ms. Dudley's claim will not impact or create a commodified market for human material and allowing such an appeal is not an endorsement of this type of market. In fact this risk is tested for in the contextual approach applied through the Yearworth precedent as it considers Ms. Dudley's use of the arm and in this case her use is personal. It is for private display as taxidermy so as to reflect her identity and express through this act her human dignity. She has no intention other words of conveying it or selling it. Second the concern for the risk of a commodified market is insufficient to deny Ms. Dudley's claim because such a risk is already sufficiently mitigated by existing legislation including the donation act and the criminal code which prohibit the selling of human material except for under very limited circumstances. And finally this risk is insufficient to deny Ms. Dudley's claim because the property interest at issue vests solely with Ms. Dudley. This is tested for through another contextual factor applied through Yearworth which considers both the origin of the arm and the benefit of the arm and in this case both of those attached solely with Ms. Dudley demonstrating for us that the property interest vests solely with her it cannot be conveyed or attached to anyone else. Indeed it is Ms. Dudley who carries the only rights in relation to the arm's use. However this said even if the risk of commodification was compelling the framework as articulated in Yearworth must require that this public policy concern be balanced with the public policy benefits of allowing Ms. Dudley's claim. As as the court found in JCM medical sciences certainly demands the allowance of exceptions to the rule and our very understanding of what the body can be has changed in the 400 years since 1614 when Haynes case first proposed or first founded the origins of the no property rule. In fact as noted in Dudaward the no property rule emerged at a time when the common law still held the reality of witchcraft and we would submit that this balancing of public policy begs perhaps an ultimate question. What is so wrong about allowing an amputee to possess privately display and cherish an amputated significant body part? Surely no public benefit adequately serves to justify the done the denial of this opportunity. Council where we can make good about the passage of time in this case it's not a situation where the arm has been preserved and it's in its original state for five years it's been decaying so if you're saying that arm is a channel surely at some point it ceases to be a shadow when does that when does that happen in your analysis? Thank you Justice for this question allowing me the opportunity to address the issue of decay. It is possible that at some point in the continuum of time the arm will cease to exist by nature of it being buried however in this case there are simply no facts and no evidence to support such a destruction. Well there has been time since the initial amputation until Ms. Studley's claim to the hospital absent sufficient expert evidence possibly or where any facts which demonstrate that the arm no longer exists it is in this type of speculation is should be insufficient to allow at least at the first stage that Ms. Studley has proven that the arm is a chattel and is her personal property however the question certainly does provoke perhaps broader considerations or related considerations at the second stage of the test which in this case asks whether the hospital has a lawful excuse to deny Ms. Studley's claim and certainly the hospital has relied upon alleged public health challenges or limitations related to the disinternment of the arm after so much time and given its burial in a mass grave. However is our position that such challenges are insufficient lawful excuses for a variety of reasons the first being the existence of the neighbor duty which generally speaking requires that the possessor of a neighbor's property in this case the hospital possessing the arm do not do any action which usurps the owner's uh possible future or proprietary rights which in this case is what the hospital has done both by consecrating the grave site without Ms. Studley's permission or knowledge and burying the arm in a mass grave. Thank you for a second sir. Didn't the hospital do exactly what Ms. Studley asked it to do? That is to bury the arm now consecration I don't think I've seen no evidence in the record that consecration creates a bar for the disinternment of the arm maybe I'm wrong you can point it out to me but didn't the hospital do what Ms. Studley asked the hospital thank you Chief Justice for the question the hospital to Ms. Studley's knowledge at the time obliged her direction they took the arm and they buried it in the hospital's graveyard and they did so informing Ms. Studley that it would be buried according to regular practice in a communal grave what Ms. Studley did not know was that the hospital actually had no policy and no normal practice for burying body parts and she did not know that the nature of the grave would then be relied upon or would then prohibit the return of the arm at a later date and in fact when her instructions for burial were first delivered she made it evident that that was her intention and so the challenges which the hospital relies upon now cannot be seen to be lawful excuses vitiating Ms. Studley's claim at the second stage of the dead new test because these conditions these restrictive conditions were foreseeable and intentionally created by the hospital alone to hold otherwise and allow these excuses would be akin to Ms. Studley going to a bank and asking the bank to put her wallet in a safety deposit box the bank obliging but sealing the box in concrete without her knowledge and then when Ms. Studley returns asking for her wallet the bank pointing to the concrete and saying I can't get your wallet anymore this of course would be different if the restrictive conditions were created by a third party or were unintentional or unforeseeable but that is not the case at hand. How can the nurse even assuming that that was about the request was sufficient to close the bail on condition of her hospital. How was the nurse able to find the hospital to that request upon her? Well thank you Justice and we submit that the the relationship between the hospital and Ms. Studley following the amputation was created and was binding more than by more than just the first employees communications with Ms. Studley. They were affirmed by a second employee which came back to discuss the handling of the arm and they were it was further implied that this agreement existed by the hospital choosing not to respond to Ms. Studley's follow-up letter which she wrote in the midst of therapy and rehabilitation with the assistance of her friends thanking the hospital for taking care of her arm in the interim. Indeed the hospital did take the arm and they did follow her direction to bury it temporarily and understanding that my my time my submissions are nearing an end and I believe this factual matrix brings us to a final theme of Ms. Studley's claim which strengthens the appellant's position which is her personal human dignity and its relationship to the arm. Ms. Studley intends to use the arm as an item in her home taxidermy and articulated to reflect for her both her identity going forward and the identity lost as she's no longer able to participate both as a coach and as a competitive rower and this use is both private and safe in other words it is lawful there's no infringement of public decency because of the private use and it's a connect it's a it's an intention closely tied to her fulfillment of human dignity. I counsel to her dignity though not affected by her decision to have it buried and left there for five years is that not weak in the argument but it's integrally tied to her identity. Thank you Justice and in the case in the facts of this case understanding of course the year with framework is discretionary it's important to recognize that Ms. Studley was going through tremendous rehabilitative period in the interim time. It was not until she made her the request to the hospital for its final disinterment which preceded this action where she was ready and my friend relies on the fact perhaps as alluded to in your question that her plans for the arm have changed but this alone this fluctuation alone is an insufficient reason to intervene in her right to claim the arm as a chattel because the use of the arm well first of all the arm was not it did not meet its final disposition it has this ongoing utility the utility is safe and that it's going to be taxidermied and the utility is private and for these reasons Justice is acknowledging that my time is expired I wish to urge this honorable court allow our appeal we seek an order compelling the respondent to return the arm to Ms. Studley it is our position which reflects the interest the law's interest in giving central value to personal identity and human dignity and subject to any further questions these are my submissions I appreciate that the bench has asked you a number of questions have been taken up a bit of your time so but you mentioned that thinking your submissions that the criminal code prohibits selling human material so you're suggesting that if the arm was returned to Ms. Studley and then she did she had a taxidermied or mounted or whatever then she decided she wanted to sell it you're saying there's something that's prohibiting her from selling that arm it's her chow if you win what prohibits her from selling thank you Chief Justice for allowing me to clarify this point to be clear the donation act prohibits the selling for valuable consideration of most human material subject to few exceptions and it's my understanding that the criminal code prohibits actions upon human material which may be undignified or contrary to public decency and therefore while the circumstances of this claim and and the success frankly of Ms. Studley's appeal on this issue does not rest on whether her future conveyance of the taxidermied arm would be contrary to law or not it is relevant to note that her intended utility for the arm is lawful and poses no harm to anyone whether private or public thanks thank you Chief Justice thank you justices good evening Chief Justice justices having established for my co-counsel that Ms. Studley does retain a property interest in her amputated arm the question then becomes whether she can recover for the loss of that arm through the defendant hospital's wrongful disposal of it in an action for conversion it is our submission that the trial judge aired in finding that Ms. Studley intended to abandon her arm which is relevant both in debt new and conversion and that consequently the hospital's burial of the arm amidst other human remains contrary to her wishes would meet the test for conversion there's no principled basis why conversion should not apply in the context of human biological matter considering changes in society and science and the development of the common law alongside these changes furthermore the trial judge aired in finding that this property loss doesn't allow for the calculation of damages again changes in societal context served to refute the trial judge's simple assertion that there is no market value in the limb or an amputated limbs and additionally this decision does not address the evident deterioration of Ms. Studley's psychological health following the loss of her property or the arm to begin with the subissue of abandonment both the appellant and the respondent agree that Stuart versus Gustafson is the leading Canadian authority in this doctrine this case presents with a comprehensive description of different factors that can apply to a finding of abandonment but what we would emphasize and what the case does emphasize as well is the high burden of proof that rests on respondents who wish to advance this type of defense in order to support the inference that they would have a court make that is in this case that Ms. Studley intended to abandon her amputated arm effectively the Stuart decision uses the language of a total desertion and absolute relinquishment and so understandably courts have been reluctant to make this finding in absence of almost overwhelming evidence because there are strong public policy reasons that militate against removing a property interest held by someone without their express intention or express statement to do so and so to that effect even when an owner has been described as being careless for example in the exercise of their property interest or has ignored certain attempts by defendant possessor to contact them the court has still found in certain instances in favour of the owner and so it is clear from the application of that case law to the facts before us that Ms. Studley maintained her intent throughout to retain ownership or her ownership interest in her amputated limb this is evident from two important interactions that we would bring to the court's attention the first took place at the beginning of this timeline of events in the immediate recovery or in Ms. Studley's immediate recovery while she was still staying at the hospital and at this time she asked one of the respondents employed nurses whether they could arrange to bury the arm yes but also whether it would be possible to retrieve the arm at a later date in order to relocate it to a place that was personally important to her another nurse later said that they would bury it according to the usual practice as my co-counsel mentioned in a communal grave and Ms. Studley authorized the burial on this description but it's worth noting a few things from this first interaction the first being that her state of mind is relevant in an abandonment analysis this was found to be relevant for example in publicic which was a case in which the owner was suffering from certain psychiatric issues at the time when abandonment was alleged and here Ms. Studley was in recovery from a very traumatic injury causing her physical trauma obviously but also psychological effects and so it would explain why Ms. Studley took some time in deciding on the final outcome of her arm but also why in the first instance she refrained from making further inquiries in the immediate aftermath of this amputation around her former part this former part of her body which was inextricably linked to her state of mind at that time and was the cause of her feeling differently than she might have prior to it yes she didn't receive an answer though to the question of whether or not she'd be able to retrieve it and the fact that she didn't insist upon an answer to that question doesn't that show a bit of a difference on her part rather I would point again to that specific context of her state of mind and I would also note that she further didn't receive a denial that that wasn't possible and given that the hospital had received this request it doesn't seem unduly onerous on them as a public institution and an institution that holds this higher standing vis-a-vis a vulnerable patient to have at least provided a clear answer in that in that respect and as mentioned by my co-counsel the nurse or the second nurse further didn't explain the exact circumstances of the burial notably that they didn't have you know that the hospital didn't have a true policy with regards to disposing of non-reproductive tissues and also that it would be mixed you know rather tragically with the remains of deceased infants and fetuses and so this is important we would submit because it raises the issue of whether misstudy properly authorized the burial that did in fact take place and it's also relevant in the sense that she one could say she did not receive proper notice from the hospital that she would not be able to retrieve her limb because the hospital did not provide her with a complete answer to her first initial question and then following that first interaction there was a second communication between Ms Studlee and the hospital one year after that initial conversation in which she expressed that she did need more time to figure out what to finally do with the limb and what's relevant here too to your question as well just as Petrunia is that the hospital didn't actually respond to that letter which would have further offered her them an opportunity to tell her that they did not intend to return the arm to her and it also this fact supports her belief that she could ultimately retrieve the limb the main takeaway from these interactions overall is that they're undeniable indications that Ms Studlee intended to retain her ongoing property interest in the arm and drawing that conclusion the court cannot find abandonment yes certainly but just to follow up on this was posed I have a variation of what I posed to your colleague let's suppose the nurse said yes we will do it let's suppose she came to me again how does that nurse speak for the institution the hospital is a large institution nurses have interacted with patients all the time and she knew that the hospital had never never received a request that like that before by virtue of what the first printer stole to her so even if she had done yes how can she speak how can that nurse speak for the institution and how can her request of her part to the nurse as soon as she received this she it's granted in the affirmative how can she impose that obligation on the hospital and how can the nurse accept that obligation on the hospital well it's worth noting that on the facts there were two separate nurses so in that sense there was a time a stretch of time during which that first nurse made inquiries as to what the ultimate outcome would be so in that sense there was time there to speak to higher ups who could speak on behalf of the entire hospital I mean individuals do represent hospitals sometimes have to make representations as to their policies and further more there are certain things that exist or policies that exist structuring the relationship between medical professionals and patients in which nurses or individual doctors by virtue of their professional designation are acting on behalf of a profession at large or on behalf of their hospital I'm thinking of informed consent for example so in that sense we would submit it's not unduly onerous here for to ask that a nurse make inquiries that would be properly representative so the respondent advances and this was brought up in questioning that misstudy took time before arriving at a final decision as to what to do with her arm and in that we would submit that there is very little recognition by the respondent that she expressed her intent to retrieve the arm as mentioned on two occasions and that the hospital failed to offer suitable responses and there is also very little recognition or empathy towards the fact that misstudy was in a vulnerable depressed state which is relevant in this context furthermore that the respondent seeks that she would have made specific inquiries around ways of preserving it or freezing it in the interim seems unduly onerous when they were in fact best placed to offer her guidance in that respect by virtue of their position so overall a finding of abandonment amounts to rescinding an individual's personal property right which runs contrary to the principle of autonomy that underscores Canadian property law and which is engaged here in the form of bodily autonomy so this justifies the high burden of proof on the respondent advancing this defense and with respect we find that the evidentiary record doesn't support the finding that they did displace this burden so having found that Ms Dudley didn't abandon her arm a simple application of a traditional conversion analysis can apply to her situation that is she retained her right to immediate possession over the arm and the hospital's disposal of the arm in a manner that did not accord with her wishes to recuperate the arm in future amounted to a substantial interference with that right further we find that it isn't inconsistent with property doctrines that misstudy be able to recover for the loss of the arm under the tort of conversion I would mention the case of Moore from California appeal court mainly the dissenting reasons as they express certain principles that might be applicable in the case of Ms Dudley here namely the judges emphasize fundamental fairness that is that play when an individual undergoes a medically required procedure and then a part of their body is extracted or removed and as a result they lose decision-making capacity over that what was far formerly part of their body and another aspect that is interesting from those reasons for there are purposes is how the courts describe or how the dissenting judges describe the courts rule in developing the common law to adapt to new contexts and circumstances that come up within society at large the majority in Moore unfortunately for the claimant was reticent to exercise that rule but it's clear from the jurisprudence advanced by my colleague for example or the year worth decision that Canadian courts and other courts have not been so reticent in recognition that these issues are live and have impact within individuals lives today the respondent advances several times that such issues are best left to the legislature however we would submit that the legislature isn't always as reactive to current issues and that the law evolves with society and sometimes courts are best suited to keep up those changes additionally as mentioned by my colleague there is a legislative framework in place that does structure the way in which we deal with human biological matter and so the legislature can always make policy decisions in this area but in the meantime where a claim like Ms Dudley's isn't precluded by that legislative framework she should not be precluded from receiving a remedy this leads into the issue of damages and in that sense the trial judge dismissed outright the idea that there was a market value in an amputated limb based on the decision from 1996 the decision of Mason which dealt with it's worth noting human ashes and with respect with the rapid development of science and medical study for example that is no longer a well-rounded assumption for example the bones and tissues in the arm could have been used for medical study even though Nova Scotian legislation forbids exchange of body parts for valuable consideration as mentioned by my colleague with exceptions this is a policy directive that intervenes in existing in an existing market so it does not mean that the market does not exist and moreover we're relating this primarily to a market around medical and scientific study and not those unsavory practices advanced by my friend on behalf of the respondent my friend advances at paragraph five of the response or 55 apologies of the respondents fact and that there is no market value in amputated limbs particularly those that have not been preserved however the market value is to be assessed at the time conversion took place which is around the time Ms. Dudley was still in recovery and so presumably if the hospital took some interim steps to preserve it which one assumes they would have based on their concerns for biohazards then the arm would not have been in an advanced state of decomposition as they now allege for a moment isn't it it's almost in the impression that damages would be assessed at the time of the ball the hospital buried the arm had missed up these wishes they refused to return it to her five years later right isn't that the is that the date of the ball in this case the date of the wrong would be the date of conversion and as our submission that that conversion occurred when the hospital buried it in such a manner as to later make it impossible for her to retrieve it or so they now allege so they were supposed to preserve the arm in some fashion before varying it well certainly the manner in which Ms. Dudley framed her requests seemed as over or suggests that she was advancing burial as a manner of preserving it temporarily now she might have not had the knowledge to of the deterioration of the limb but in that instance it kind of comes back to those points that I advanced earlier where the hospital could have either offered her guidance in respect of how to best preserve the limb or if they were unable to do so at least make that clear to her and finally my friend further advances what are essentially floodgates arguments that this would unleash some sort of black market in human body parts but as mentioned there are legislative frameworks that prevent this and ultimately her claim arises because she had a medically necessary amputation and wished to retain her right to exercise her decision-making capacity over her body and so this does not run contrary to the policy directors underpinning the legislative framework regardless of the amount of market value however nominal there is a clear basis as well in Canadian jurisprudence for the idea that individuals should be able to receive some amount for the mental anguish that accompanies the loss or interference with certain items of property and so from that perspective the trial judge aired in failing to consider misstudy psychological deterioration which is evident on the facts following the hospital telling her that she could no longer retrieve the arm. Council, I have two questions relating to that. One is if we're to value the chattel at the time of conversion at that point you know it seems that it was the years of therapy that led to some of the anguish resulting in that arose from the decision not to return the arm so does that how does that factor into the value of the arm at the time of the conversion when it was initially married? I'm not sure that I comprehend. Was her mental anguish really made out at the time of conversion if it would happen at the time that the arm was married? Well she wasn't aware that the conversion happened when it did happen and in that sense but in that nevertheless I think there's a chain of causation between the conversion her becoming aware of it and then a further deterioration of her mental health so while they might not have been aware of you know her depression or clinical clinical issues it's very clear on the fact there was a further deterioration after she became aware of that wrong that was exercised seven years earlier. So to finish with a point that has kind of underscored this entire claim the remedy for Miss Studley's claim serves both the purpose of normal compensation for interference with the property right but equally it serves the deeper purpose of acknowledging the wrong that was suffered by Miss Studley from the point of view of her human dignity and her right to autonomy and deciding how to exercise decision-making capacity over once over limb that once formed a part of her physical person but also her personhood as a competitive rower and rowing instructor. In summary the appellant Miss Studley has a clear property interest in her amputated arm as established by my co-counsel and consequently the respondents refusal to return it to Miss Studley amounts to detainee or where the court finds that the arm is irreversibly degraded by the respondent's action conversion as such fairness demands that she receive a suitable remedy in the form of damages or return of the limb. Unless there are any further questions from this honorable court I would allow my friends to make their submissions. Thank you very much. Thank you. Good evening Chief Justice Justices my name is Nicole Arsky my co-counsel is Miss Emma Lawson and we are here today on behalf of the respondent Kate Crudence Catholic Hospital. Together we will submit that both of the appellant's actions in debt new and conversion must fail with respect to the amputated arm. Any other conclusion by this court would undermine its long-standing recognition in the note of the no property rule would bring doubt to our foundational conceptions of persons and their natural rights and would deviate from the court's history of leaving contentious and highly complex moral issues to the legislature to balance. As such this court should uphold the Nova Scotia Supreme Court's decision to dismiss both of the appellant's actions. I will be making our submissions on the first issue that is that the debt new must fail with respect to the amputated arm. My submissions consist of three primary points first that debt new is not available to the appellant because the arm is not a chattel second that notwithstanding any characterization of the arm as a chattel the actually must nevertheless fail because the hospital no longer has actual possession of the arm and finally that the hospital has a lawful excuse for not returning the arm. I will now proceed to my first point which begins at paragraph 12 of the respondents factum. Arm is not a chattel due to the operation of the no property rule. Counsel agrees that the no property rule recognized as early as the 17th century in the Haines case provides that there's no property in a human body. Accordingly individuals cannot direct their body to be disposed of in a certain way as only property can be disposed of by will. Now justices there's no justifiable reason for not applying the no property rule to the case at bar. Indeed my friend agrees that determining the rules applicability requires in part an inquiry into the purposes of the no property rule the concerns that the rule seeks to address and whether those purposes are engaged in the present case. On this point my friend agrees that the purposes of the no property rule are twofold. First it recognizes that persons in their communities are to be afforded dignity thus requiring that human bodies be disposed of in a dignified manner. It also recognizes that unburied bodies pose a risk to the public health and thus ensures that bodies be disposed of in a timely manner. I submit that both of these purposes are clearly engaged in the case at bar so as to necessitate the application of the no property rule. Dissenturing the arm would run contrary to the rules requirement that bodies be disposed of in a dignified manner. As the Supreme Court of Newfoundland and Labrador recently noted in Chaffee most societies and cultures regard disinterment as a forbidden act as it offends the basic moral premise of allowing bodies to rest in peace. In other words the mere act of disinterment offends our notion of dignified disposal. In the present case disinterment of the arm is particularly offensive to this notion due to the fact that it was buried in a communal grave with numerous babies and fetuses. Its disinterment then would disturb the repose of those buried within thus affronting their dignity and the dignity of the community who appeals to their memory. Such concerns then demonstrate that the rules dignity purpose is readily applicable to the case at bar so as to preclude the arms characterization as a chattel. Secondly the arms disinterment similarly engages the no properties rules public health purpose. Having been buried five years prior the arm is in a likely state of decomposition and indeed it is further more mixed in with other decomposing human matter. Disintering any such remains as the Nova Scotia Supreme Court took judicial notice of has the potential of reintroducing hazards to the environment and to the public thus creating concerns for the public health. These concerns are even more heightened by the uncertainty of what would happen to the arm upon its disinterment. While the appellant states that she now plans to preserve the arm as taxidermy she has acknowledged that over the years she has modified her plans for the arm as she considered other uses for it. This maybe goes back to your argument about the human dignity but your friends would say that she didn't have any she was informed that the arm might be buried in the memory that it was with fetuses and infant babies and that's I think you would probably agree that that's not a typical way in which you would expect maybe body parts to be disposed out so is it really is it her fault that the hospital chose to bury it in that way and does that really factor into the test here? Justice I would respectfully submit that it does not factor into the test because the no property rule stipulates that when we're concerned with our conceptions of dignity we're not looking at what the individual wishes in regards to the manner of their body or in this case their body parts disposition and this is because we conceive of the dignity purpose as applicable to a standard of public decency. We are not concerned with what the individual views as dignified and indeed the Nova Scotia Supreme Court in Crouch underlined this this this important notion in recognizing that different people have different conceptions of what can constitute a dignified manner of disposition and this instead would lead to endless litigation on this point which would in itself in their words be unseemly and indignified so it's not a matter of whether the appellant knew the how the communal practice would be engaged because she in herself did not have a right to bury her own arm. This had to be done by the hospital in order to preserve public health and to preserve human dignity so the choice was not available from the forefront. Whether she's still alive now to direct what should happen with that moment. Indeed and I would point specifically to Crouch where it is emphasized by the Nova Scotia Supreme Court that a testator may express their wishes as to the manner that they wish their body to be disposed of and indeed I think we can all agree that one's final resting place is sentimental and is significant and yet the law does not oblige an executor to commit those wishes and that individual is just as alive as the appellant is in this case has the capacity to make that wish and yet our law finds that we don't have to respect that wish because of public health and dignity concerns and so I would submit that it would not be clear why the appellant would be given more testamentary freedom over the disposition of her arm but not an individual creating a will trying to choose their final resting place. I would respectfully submit that the arm is not analogous to the reproductive matter that is considered in the Yearworth exception and so that exception is not applicable so as to characterize the arm as a chattel and this is because the court in Yearworth was particularly concerned with aiding individuals who were endeavoring to use assisted reproductive technology which in itself is a socially valuable service and so they imbued property rights with that reproductive matter in order to ensure that others couldn't intentionally interfere with that matter which had a specific use. Now looking at the Yearworth principles the court found that the plaintiffs had ownership of their sperm because they had willfully generated their sperm for the specific intention of later using it for their benefit that being reproductive purposes but this is not analogous to the nature of the arm separation from the appellant in this case indeed the appellant did not generate her arm her arm has always been a physical attribute fixed to her body which surgeons ended up removing due to a very unfortunate accident but that manner is important because what Yearworth is trying to establish is that people should be able to use their reproductive matter because they had intentionally generated it here the right to use that arm does not arise because the severance of the arm did not have as its sole object to be preserved as taxidermy so no right to use it as such can arise in the present case just on a last point in answering that question I would also submit that it is important to look at the public policy purpose that was grounded in Yearworth the fact that we recognize even in Canadian society that it is important for people if they choose to want to have a family to have that option if they are not able to and so we found a way in order to imbue property interests into sperm to allow this to happen but this does not necessarily encourage the general application of property law to our body parts so a robber in Cape Breton is out voting suffers an accident taken to the Cape Breton hospital regional hospital and the surgeon says we're going to have to remove your arm to save your life and they have to move at the at the wrist or the elbow or the shoulder and the patient says oh look I don't I don't like here I don't like the options but I'll accept your opinion and gets cut off at the elbow and then she's and then they're going to dispose of what's left of our arms she says no no don't do that I want that arm I want I want to fly to the hospital of the QE tube in LFX where they have specials and I want to see if they'll be attached and the hospital up there is no front people that's not your arm anymore we're going to dispose in the hospital do that or she says no that's that's my arm well justice I would submit that the the big differentiation from this case is that perhaps in in this case if the hospital was able to preserve the arm in a way so as to allow its flight to the other hospital that doesn't engage the public health purpose which would otherwise preclude characterization of the arm as a chattel in this case and it perhaps also wouldn't engage the dignity purpose because the the individual in that case is not purporting to use her arm as an object or any other way that would otherwise perhaps concern us instead she was she would be hoping to reaffix that arm to herself so I think with very guided discretion and and work between both of the hospitals that doesn't necessarily engage a proprietary interest in fact we could perhaps classify that as the individual engaging her right to personal security which is a right to be able to enjoy her limbs enjoy her body enjoy her life and enjoy her health if there is a practical means of allowing that arm to be reaffixed to that body without engaging the dignity and public health purposes I would submit Chief Justice that that perhaps could very well take place under of course very guided rules and discussions now on that final note of characterizing arm or in this case not characterizing the arm as a chattel I do want to briefly mention that there are significant public policy considerations to be made that militate against the recognition of the arm as a chattel recognizing property interest in body parts would commodify bodies as things that can be owned severed bought and sold and this in turn devalues the very dignity of the person which the no property rule seeks to protect imbuing a person's body parts with proprietary interest runs contrary to our notions of persons and their natural rights as we necessarily abhor the notion that people can be owned or constitute property it is concerning that objective object objectification of a body part will extend beyond that part so as to encapsulate its human source and given the little political will to change our state of affairs this honorable court should not depart from the no property rule so as to overturn hundreds of years of precedence now I'll now turn to my second point of my submissions which is that the appellants action in debt and you must fail because the hospital does not have possession of the arm and for the court's ease my argument starts at paragraph 30 of the respondents factum now my friend agrees that the cases of o'connor and doodward provide that the arm by virtue of its burial now forms a part of the freehold and is in essence part of the land that forms the churchyard using the words of the Haynes case the arm is now but a lump of earth this is significant because the indivisibility of the arm as a discrete thing from the land means that the hospital does not have actual possession of the arm instead it has possession of the church lot and the land therein indeed even if the court were to characterize the arm as a chattel at this point or as property it would only amount to property amounting to freehold which necessarily is not a chattel now given that the tort of debt and you necessarily concerns itself with the wrongful detention of a chattel I would submit then that the arm is not available for an action in debt new and cannot form the subject of a successful action so I would submit that the hospital no longer has actual possession of the arm now turn to my final point which is that the hospital has a lawful excuse for not returning the arm to the appellate and this argument begins at paragraph 35 of the respondents factum hospital has a lawful excuse for not disinterring the arm because it has a statutory duty to quickly and safely dispose of biohazardous waste under Nova Scotia's environmental laws indeed the environmental act prohibits entities from handling their hazardous waste in a manner that could cause an adverse effect on the environment and hospitals are specified by the Nova Scotian government as institutions that typically use and produce such hazardous waste now the arm in question is anatomical waste that contains blood a potentially infectious source and so it constitutes biohazardous waste accordingly requiring the hospital to disinter the arm would be to require it to breach its obligations accordingly the hospital's refusal to return the arm can only be described as a lawful excuse as its refusal is rooted in the hospital's endeavor to comply with its legal obligations and to refrain from prohibitive conduct subject to any other questions I'd like to take a brief moment to conclude my submissions in some this honourable court should uphold the decision of the Nova Scotia Supreme Court to dismiss the appellate actions in debt in you with respect to her arm breaking with the several hundred years of recognition that there's no property in a human body will have serious ramifications on Canadian society and our conceptions of persons and their bodies in times of increasing diversification as well as division within the human population it is more important than ever to hold dear or societal obligation to respect the dignity of each person and their body should there come a time that Canadian society believes that such dignity can coexist with bodies being impugned with propriety interest it is necessary that such recognition be made by the legislature rather than the judiciary so as to reflect the political will behind that change and with that I conclude my submissions thank you very much good evening Chief Justice Justices my name is Emma Vossen and I represent the respondent Kate Prudence Catholic Hospital on the second issue in this appeal which concerns the quantification of damages under the tort of conversion I will also be addressing the issue of abandonment in so far as it pertains to the issues of both debt new and conversion Justices this case is about fairness autonomy and dignity but these ends cannot be achieved if the subjective wishes of a single plaintiff are allowed to override the current state of the law which is designed to protect vulnerable populations and to ensure justice for all fairness cannot be achieved when subjective and imprecise measures are used in the calculation of damages and in doing so render the law uncertain and unknowable autonomy is further endangered when the increased commoditization of the human body in its parts makes individuals and groups subject to exploitation in an unregulated markets and human dignity is undermined when we treat amputated body parts as things which can be sold profited from and sued over it is the responsibility of this honorable court to consider whether it will allow such injustices to perpetuate in our legal system or whether it will uphold the current state of the law in a manner that promotes fairness autonomy and dignity for all concerned as my colleague miss arsky has argued the Nova Scotia Supreme Court did not air in holding that debt new does not apply to the appellant's arm because the arm is not a chattel and the hospital was not in wrongful possession of the arm if this honorable court rejects the respondents position with respect to the first issue of debt new it must nevertheless dismiss this appeal because as is relevant to both the issues of debt new and conversion the appellant abandoned her arm to the hospital if this honorable court finds that the arm was not abandoned a claim in conversion must still fail for three primary reasons and the first is that there is no market and strong policy considerations counsel against the imposition of a market value for amputated limbs the second is that an award of damages based solely either on sentimental value without an accompanying market value or for mental anguish without meeting a criteria of reasonable reasonable foreseeability in this case cannot be considered absent a read absent a reconstruction of the law of conversion and finally I would suggest that any reconstruction of the law of conversion is best left to the legislature as the body best positioned to strike a meaningful balance between plaintiff's rights and the protection of potential defendants with respect to abandonment I would note that the parties agree that the applicable test is that which is outlined in stewart v gustison and it reports that where the intent to give up one's chattel is at issue abandonment may be inferred based on the passage of time the nature of the property the nature of the transaction and the owner's conduct if I might turn first to the passage of time I would note that there is no indication the appellant's arm was preserved in any manner and thus it was subject to decomposition immediately following its detachment from the human body and therefore there was a heightened element of timeliness with respect to the appellants retrieval of the arm if she did not intend to abandon it now furthermore the case law suggests that there is needs to be an evidence of ongoing intention or ongoing interest in order to protect one's property interest where abandonment is concerned and I would note that in this case the appellant authorized the burial of her arm and she would ask no further questions at the time it was not until yes both agree the stewart and the staffs of that decision uh just as a key look uh says the act of abandonment is essentially a question of fact to be included by the party relying on the principle of abandonment the sites of freedoms the burden of proof is that it is an owner's one with the owner's actions the owner's action do not really manifest the intention to surrender ownership but I understood your last comment was that she didn't give any indication that she wished to maintain ownership aren't you reversing what stewart says thank you for your question justice I would not suggest that I am going against what the court said I would rather suggest that the appellant did not by not asking or by authorizing the burial and not asking any questions it was that aspect of her authorization that is indicative of not an ongoing interest her vague reference a year later in the letter which she sent to the hospital thanking them primarily for their surgical care and assistance in which she made a vague reference to needing more time to decide to do with the art what to do with the arm and then follow up five years later post amputation when she asked about the communal grave the location of the arm within the grave and whether disinterment was a possibility I would suggest that we cannot take those actions into account because they are not indicative of her state of mind at the time when she authorized the burial at the time when she authorized the burial this is I would suggest is relevant to the nature of the transaction factor specifically under stewart v. Gustafson and that says the account state of mind at the time of conversion which in this case would be at the time when the appellant authorized the burial and subsequently when the win was buried is exactly what is at issue and I would bring us back if I might to the conversations that the appellant had with both the first nurse and the second nurse and when the appellant spoke with first nurse when she made her when she made her original request with respect to whether the arm could be buried and whether there was a possibility of disinterment she was specifically told by the first nurse that he had never received such a request before but he would check to see what the hospital could do she heard from the second nurse in her conversation that the arm would be buried in accordance with the usual practice in a communal grave and I would suggest that when a person makes a request that somebody has never heard of before it follows that that request is new unique or hasn't been previously contemplated by the person receiving the request whereas in contrast the usual practice would indicate an adherence to a status quo or a standard so therefore when the appellant heard that her request was going forward in accordance with the usual practice this would have been indicative that no special arrangements were being made with respect to her original request and it was armed with that information that the appellant authorized the burial and made no further inquiries so I would suggest that any actions after that point in time cannot be considered so abandonment happened at the time even when she was in the hospital initially that's correct with respect to abandonment I would also suggest that the case law points to the fact that where the cost of returning an item to its original state is worth more than its market value abandonment is inferred now an example that is given in the case law is that of a dilapidated non-functioning motor vehicle that is left either in a parking lot or on the side of a highway now when the cost to restore that vehicle to a state of roadworthiness is greater than its market value abandonment is inferred and there was nothing to suggest that an amputated limb is not subject to that same principle in fact in this case where the cost of preserving or transforming via taxidermy or privately burying the arm is arguably greater than its market value which in this case for a non-functioning decomposing limb is arguably zero and thus ordinarily abandoned to health care providers as a result the nature of the appellant's chattel is highly conducive to a finding of abandonment I've already just discussed Ms. Dudley's conduct but I would note on that subject that my friend on the other side suggests that the appellant's medical issues would serve as justifiable grounds for her vague reference later to needing more time to decide what to do with the arm and I would suggest that while the circumstances surrounding the appellant's depression following the necessary medical amputation are unfortunate as I mentioned earlier her state of mind following the burial cannot be considered I would suggest that if the state of mind was to be considered after her authorization this would be to suggest that patients who voluntarily authorize the burial of their limbs after speaking with hospital personnel are not intended or not presumed to have an intentionally abandoned their limbs and this means that there is nothing to prevent patients from coming back days weeks or years later and flooding a hospital with claims of debt new and conversion thus only unduly disadvantaging hospitals who act on otherwise valid authorization of patients and this idea is also contrary to the principle of finality and the duty to enact a dignified burial that is embedded in both the common law and statute law if I might make one final note on the issue of abandonment I would suggest that or I would note that the appellant suggests that the principle of notice which underlies the patient's abandoned property act should apply in this case not withstanding that section four one does not apply with respect to the use and disposal of human tissue but this argument overlooks two points the first being the first two conversations that the appellant had with the nurses at the hospital which in and of themselves constituted sufficient notice but I would suggest that it also ignores the fact that biomedical waste which includes human body parts must be disposed of in accordance with provincial territorial and local legislation and therefore any requirement for sufficient notice and the means by which it should be provided should be set forth by the legislature because in this case judicial intervention would be to overlook the hierarchy of governance that we currently have in our medical system and it would it would be unlikely that it would result in fairness and outcomes without accompanying guidelines for instance one hospital might put in a policy that allows for temporary storage or preservation of a limb thus allowing a patient to change their mind following initial authorization but another hospital might put forth policy mandating immediate burial and leaving the patient with no recourse and if there are such discrepancies in procedure this would unfairly disadvantage patients the majority of whom are not contemplating their preferred manner in which they would like to dispose of their limb as they are being either rushed to the hospital or having an amputation procedure with little to no discretion over where that amputation procedure is to occur so I would suggest that a national approach to waste management and practices is required if the sufficient notice principle is to be supplemented or is to supplement the steward factors with respect to this abandonment analysis but in the absence of yes so just to go back to your your argument paragraph 50 that the appellant did receive ample notice given that she had specifically requested that it be buried in a manner in which she'd be able to later retrieve it wouldn't sufficient notice have been that it was being buried in a manner that she would not be able to retrieve it should the hospital not have given her that notice that it could not be returned I would suggest that because it was a new nurse and who had not originally heard that request and who was then describing the hospital standard practice to the appellant where the appellant asked no further questions that was indicative of her intent to abandon and I would suggest in that case that the hospital where the hospital doesn't have perhaps a social worker on staff who needs to be in the room with the appellant or the person who is making such a decision that is something that as well should be left to the legislature to implement a policy that is sufficient for hospitals across the board and where discrepancy in policies wouldn't unduly disadvantage a patient who is at one hospital and perhaps has a social worker versus another patient who doesn't have any support and so in conclusion on the point of abandonment I would just note that in the absence of such legislation the hospital was not required to provide any notice that other than that which they already did and an inference of abandonment can be properly made based on an analysis of the steward factors I would note that notwithstanding these considerations of abandonment if this honorable court decides that the appellant did not abandon her arm then an action and conversion must still fail and it must fail firstly because there is no market and no accompanying market value on which to base an award of damages in conversion the intentional tort of conversion treats the defendant as one who is the recipient of the forced sale of a child so in order for the goods to be returned is not made what is at issue is the compensation that is to be made to the plaintiff for the value of the good and in order to determine what the value of the good is there should be a market on which that determination can be made as was noted by the trial judge there is no such market for amputated limbs nor is there an ascertainable market price nor an identifiable pool of arm's length buyers interested in the purchase of amputated limbs I would note that the lack of a role for expert evidence in this case is also indicative of the fact that there is no established market for amputated limbs other examples in the case law for example where a ring is at issue in conversion use the opinion of an expert gemologist to determine what the value of that ring was in another case a fur dealer is used to determine the commercial value of a grizzly hide but in this case not only is it uncertain who would be the expert with respect to amputated limbs but there is also that question of what assessment criteria would be used to determine the market value of a decomposed limb because while something such as a ring maybe looked at and assessed based on its cut color quality and care it there are no such identifiable criteria for an amputated limb this marks the appellant's arm as remarkably different from tangible goods which are capable of being monetized I would also point out that there are a number of policy considerations which weigh heavily in favor of judicial abstention from the imposition of a market value one need only look at current legislation to identify the government's clear intent intend to prevent the commoditization of humans and their body parts so for instance if we look at section 27 one of the human organ and tissue donation act which states that no person shall buy sell or otherwise deal in directly or indirectly for valuable consideration any human organ tissue or body for use in transplantation education or scientific research and I would specifically note that it is this term valuable consideration which is a broad term that is used by seven of the thirteen provincial and territorial legislatures which indicates an intent for donations to be premised on a basis of altruism now this legislation effectively prohibits any exchange whether it be from a nominal sum to a large sum that might otherwise incentivize the commercialization of the body and its parts now there's no reason to conclude that the same principles would not apply to an amputated limb particularly where the risk of exploitation that is apparent in the human organ market is easily translatable to a hypothetical market in amputated limbs and I would suggest that ultimately the way in which we treat amputated body parts has implications for the way we think about and treat people when human body parts are capable of being sold profited from and sued over there is that risk that the objectification of the body part will extend to the human from which it has been severed or detached and therefore the commodification of the appellant's amputated arm would not restore her dignity and self-worth but rather it would have the heightened effect of undermining the appellants and not only her inherent value and dignity but that of all amputees who risk being objectified as the human source of a monetized body part wouldn't it be to compensate her for her loss if it's made out that it is a channel and that the hospital did not have a lawful excuse for not determining it so they've converted it it may be difficult to quantify it it may be difficult to have an expert the maybe expert available records fixed damages all the time with little and no evidence and difficulty with assessing damages doesn't work with that assessment so why couldn't a court say well there's no market for this we don't want to encourage a market for it you've been wrong and we're going to assess damages of five thousand ten thousand dollars some number so that she would feel vindicated that she lost her arm unnecessarily yes i appreciate your question and i would suggest that there are key factual differences in this case which make a remedy in conversion impossible and so if we consider that an established market value is out of the question then we are turning to the area of general damages and so we would be concerned with i would suggest either the sentimental value or emotional attachment that the appellant has to the arm which is recognized or we would deal it be dealing with her mental anguish as a result of not being able to have that arm back if i might turn first to sentimental value i would suggest that the law cannot provide a remedy in this case because subjective value by its purely subjective nature is an assessment of value that is not shared by every individual and thus it is liable to create uncertainties in the law that the law is intended to redress and rather construct so for instance i would signal i would signal that it is unclear again what measure would be used to gauge the appellant sentimental value with respect to the arm for instance if we were to use her testimony with respect to her emotional attachment to the arm that would be insufficient because that would mean that and it would result in inequitable compensation for plaintiffs who have lost similar pieces of property but were then awarded damages based on the strength of their sentiments so this would be unfair i would speak to the point of mental anguish by noting that this also fails to meet the criteria specifically under the tort of conversion because under the tort of conversion where general damages are taken to account in some cases where an exception has been made there has been willful misconduct on the part of the defendant i would suggest that this case does not fall into that exception because here we would be essentially punishing the defendant for acting on the authorized burial of the appellant and they did so without undue influence or coercion or without a recognized fee for their service so damages in this case where they are made in part to compensate the plaintiff but also to punish a defendant with respect to general damages would not be sufficient if i might have one moment to just wrap up that point i would suggest that with respect to reasonable foreseeability the decision to award damages our general damages in mason which was a tort of conversion hinged on the court's consideration of reasonable foreseeability so the question that we would be asked here was whether the hospital whether it was reasonably foreseeable to the hospital that the appellant would suffer that mental anguish as a result of not being able to retrieve her arm and in this case i would suggest that it was the hospital could not have been fully aware of that given that the appellant did authorize the burial without asking any further questions and there was no indication at that point in time of her mental distress or of the fact that she was suffering from depression or would need to undergo therapy in the future and as i mentioned earlier her subsequent inquiries read the arm cannot be factored in because this would essentially undermine the principle of reasonable foreseeability that being that it must be reasonably foreseeable to the hospital at the time of the alleged wrongdoing i realized that i have gone over my time so i will just conclude by saying that subject to any further questions these are my submissions thank you so as appellants you do have the right to apply if you choose as optional and the if you do exercise that right then it's limited to responding to matters that the respondents have raised in their argument and we decline to exercise the robot at this time if you don't exercise it now it's not i will accept your election thank you very much we have the panel thank you very much for your very informative written and oral submissions the decision of the court is reserved the panel now retired to the dean's office to consider the competition thank you okay and also the i have to confess when i first started reading the problem i thought what certainly was my panel members we read some of the cases that were cited by the parties and it does engage some very very important issues and it will be to occur on some sometime soon and the panel also is very impressed with the quality of written and oral arguments by all the participants you're all worthy of being here and making these very difficult decisions i'm going to announce the winners of the prizes and then my my panel members will provide some feedback to each council who participated the the runner-up prizes of Leonard Dean Kitt's qc prize is valued at 250 dollars donated by mr kitt's and it's awarded to the runner-up uh the smith shield competition the it was a tough time up there in the in the panel room but we managed to reach you know the midi and the andrew boland and voss and our leaders of Leonard kitt's prize congratulations to have is that this is a book prize and it has a value of 250 dollars the winners of the of the competition at the as kitt's price for advocacy doesn't say anything wondering about that but we weren't able to get any uh reliable information but congratulations to jack benna and michael arske for that prize just for the individual assessments before do that i'll credit him my remarks by saying that uh it's a justice beverage indicated this was very close you were all very very able advocates and uh the the difference between the two prize recipients was extremely close it was a very very engaging uh discussion at the end of the conference um i've been mrs voss and i'll start with you first i thought you were very capable in the presentation of your argument you were calm and measured you maintained very good eye contact and your arguments flowed very logically you made a good connection between the factum and your argument or if you slipped a little bit wasn't your answers to some of the questions and now how you handle them but that's a skill even the most of the college advocates many years of experience in the court oftentimes have to develop with and your difficulty wasn't really all that much it was just a little bit uh in terms of how you responded to some of the questions and in one case i think you might have uh misstated the law and rapism in relation and maybe for one particular case but overall a one congratulations thank you very much mrs steve i thought that your uh your demeanor and your uh measured uh case of your argument was exceptional i thought that you dealt with the questions uh that were posed to you by the animal with a plong uh and yet at the same time uh you were able to actually integrate them into your argument further in your argument that you were making uh it was almost a seamless transition it was very well done the two of you did an excellent job and i would have mentioned giving some feedback to the both of you um also an excellent job and really enjoyed listening to your arguments um mr vett great delivery um excellent pace and excellent clarity um your answers to questions were uh were right along and you laid out your argument very well um and you were very composed and very clear argument and very responsive in your delivery and uh it's both been really like with the unification bench and delivery was also very calm and composed which i really appreciated you clearly needed argument very well um had a great pace and i like the way to be trained for argument you know so as well um and with you dealt with that question from the bench very so i saw work on the video and enjoyed it i want you all to understand that the decision of the bench uh is on reserve and uh it will always be on reserve you may hear so hopefully you gather out there and socialize a little bit up there as well thank you