Are retirement homes vicariously liable for the misconduct of their employees?
As a part two of blog from Monday, November 27, 2017, Justice Mew was also asked to consider the question of whether the owner of the retirement home was vicariously liable for the actions of Ms. Gibson-Heath. To recap, Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, is about a personal support worker who was criminally convicted of stealing $229,000.00 from Clifford Hoyle, an elderly resident of a retirement home. Ms. Gibson-Heath was an employee of the retirement home when she stole from Mr. Hoyle.
Justice Mew was asked to determine this issue in the context of a motion for summary judgment. The motion record contained affidavits from Robert Regular, the sole director, officer, and shareholder of the retirement home, and Margaret Hoyle, one of Mr. Hoyle’s daughters. Ms. Hoyle’s affidavit spoke to how her father was placed in the retirement home on a permanent basis after breaking his hip and his dementia had worsened. Ms. Hoyle also spoke to how she had no input with respect to the personnel who will be taking care of her father while he is a resident of the retirement home. On the other hand, the affidavit from Mr. Regular spoke to how he was not involved with selecting Ms. Gibson-Heath as Mr. Hoyle’s person service worker. Mr. Regular also spoke to how the retirement home does not purport to offer or provide assistance with the management of a resident’s property or assets.
Justice Mew considered the leading case on vicarious liability for intentional torts, Bazley v. Curry, 1999 CanLII 692 (SCC),  2 SCR 534, which was a case that dealt with the liability of a non-profit organization in the context of the sexual abuse that one of its employees had perpetrated against a resident of one of its facilities. The Supreme Court of Canada test was restated in paragraph 41 of Justice Mew’s reasons and in applying this test, he commented as follows,
“an important consideration when determining whether [the retirement home] should be vicariously liable for Ms. Gibson-Heath’s actions will be whether the additional care services she provided to Mr. Hoyle were an extension of, or associated with, her employment by [the owner of the retirement home] or whether what she was providing was, to use the language of the rental agreement, “extra nursing care” which would have been the responsibility of Mr. Hoyle or his family to obtain, organise and pay for. Such evidence would assist the court in determining the extent to which the employer created or enhanced the risk of the wrong complained of and, hence, the application of the subsidiary factors described by McLachlin J. in Bazley v. Curry.“
Ultimately, Justice Mew could not determine this question summarily based on the record before him and a case conference was ordered to discuss the appropriate next steps regarding the issues against the retirement home. Costs of the motion, as it relates to the summary judgment motion against the retirement home, were reserved to the trial judge after considering the Parties’ costs submissions.
Thanks for reading this week!