Category: Ethical Issues
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.
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In a recent decision of the Superior Court, Justice Mew found that,
“In appropriate circumstances, I conclude that the relationship between an elderly resident of a retirement home and a personal support worker can also be a fiduciary one”.
Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, is a civil proceeding that was commenced after Ms. Gibson-Heath, a personal support worker, was criminally convicted of stealing $229,000.00 from Clifford Hoyle, an elderly resident of the retirement home where Ms. Gibson-Heath worked. Ms. Gibson-Heath was sentenced to 18 months of imprisonment and a restitution order was made for her to pay the shortfall between the full amount stolen and any amounts recovered by the Crown.
At the time of the proceeding before Justice Mew, Ms. Gibson-Heath was a discharged bankrupt and the Estate Trustees of the Estate of Clifford Hoyle were seeking an order that the restitution order survives Ms. Gibson-Heath’s bankruptcy and a civil judgment in the amount of the shortfall amongst other relief. Justice Mew determined that the restitution order survives Ms. Gibson-Heath’s bankruptcy pursuant to section 178(1)(a) of the Bankruptcy and Insolvency Act but he also went further to consider whether section 178(1)(d) would also apply as it relates to “any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others”.
Justice Mew’s analysis can be found at paragraphs 16 to 19 of his reasons. Of note, his Honour commented as follows,
“Ms. Gibson-Heath’s role was to look after Mr. Hoyle. To act in his best interests. As an elderly gentleman, who was already in the early stages of dementia when he started to reside at Fairfield Manor East at the end of 2006, Mr. Hoyle was undoubtedly vulnerable to any abuse of the trust that he placed in those who cared for him.”
Ms. Gibson-Heath did not respond to this proceeding and Justice Mew also found that this was an appropriate case for substantial indemnity costs due to Ms. Gibson-Heath’s fraudulent conduct (click here for the costs decision).
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The answer is no according to Borges v. Santos, 2017 ONCJ 651.
In Borges v. Santos, a garnishment proceeding was commenced by Maria, who was entitled to child support from Antonio. Maria sought to garnish a trust that was established from the Estate of Antonio’s mother. Pursuant to the Will of Antonio’s mother, the Trustees were given an absolute and unfettered discretion to pay any part of income or capital for Antonio’s benefit and to keep Antonio’s comfort and well-being in mind in exercising their discretion. In this case, the Trustees also happened to be Antonio’s brother and sister as well as the gift-over beneficiaries of this Trust such that they will be entitled to all income and capital that were not distributed to Antonio 21 years after their mother’s death.
In one of her arguments, Maria contended that the Trust was not truly discretionary because of the non-arm’s length relationship between the Trustees and Antonio since they were siblings. The Court in case clarified that Tremblay v. Tremblay, 2016 ONSC 588, “does not stand for the proposition that all familial relationships between trustees and beneficiaries automatically demonstrate that the trust is under the control and hence the property of the beneficiary” for the purposes of the Family Law Act.
Interestingly, Antonio gave evidence in this proceeding that he wanted the Trustees to honour his child support obligations to Maria, although they chose not to comply with his wishes. Ultimately, as obiter, the Court also asked the Trustees to consider making a distribution to Antonio for his comfort and well-being by supporting his son, Christopher, while acknowledging that he could not order them to do so.
For those of you who are interested in the essential elements of a Henson Trust, click here, for a previous blog on this topic by Ian Hull.
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I have blogged about assisted suicide in the past with reference to the Canadian television show Mary Kills People. The availability of assisted suicide continues to be a subject of public interest as each province deals with the implementation of the outcome of Supreme Court of Canada decision in Carter v. Canada (Attorney General).
As reported by The Globe and Mail, one particular doctor has removed himself from a roster of doctors who will administer assisted deaths because of changes to the physician fee schedule in British Columbia. Notwithstanding his support for assisted death, Dr. Jesse Pewarchuk of Vancouver Island wrote a letter to his colleagues to explain that the new fee schedule made “medical assistance in dying” economically untenable for his practice.
According to Kelly Grant of the Globe and Mail,
“Under the new fee schedule, B.C. physicians will now be paid $40 for every 15 minutes, up to a maximum of 90 minutes, to conduct the first of two eligibility assessments required by law. Each of the assessments has to be provided by a different clinician. That works out to $240, a significant increase from the $100.25 interim assessment fee that has been in place in B.C. since shortly after assisted death became legal.
For second assessments, the time is capped at 75 minutes.
In the case of providing an assisted death, the province has set a flat fee of $200, plus a home-visit fee of $113.15.”
Within the same article, it was reported that Ontario does not have specific billing codes for this type of medical service at this present time.
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Last week, Ian blogged on the Retirement Homes Regulatory Authority, financial abuse of the elderly, and the competency of elderly individuals to make financial decisions. As stated last week, it is unclear what the responsibilities are of a retirement home in cases where there have been loans between a resident and the licensee.
The recent Licence Appeal Tribunal decision of 2138658 Ontario Ltd. ola Seeley’s Bay Retirement Home v. Registrar, Retirement Homes Regulatory Authority is the first case to look at financial abuse in the context of the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”). This case involved the Retirement Homes Regulatory Authority’s revocation of Seeley’s Bay Retirement Home’s licence on the basis of the alleged financial abuse of three residents, and a former resident.
The Tribunal determined that the former resident offered to grant the licensee a second mortgage, however, the resident had independent legal advice and a proper written mortgage, and as such, no financial abuse was found.
The Tribunal found financial abuse of one out of the three residents. For the first two residents, the Tribunal did not find financial abuse as they were a couple that had a long-term 25-30 year relationship with the licensee. The couple offered a loan to the licensee but he had counted the loan toward the couple’s rent and had paid off the loan at the time of the hearing. The Tribunal found that this was a trade-off, and that people who are competent to manage their own affairs ought to be allowed to make independent financial decisions, and found the loan to be “a matter of friendship and faith”.
The Tribunal found financial abuse of the third resident. Resident three lived in the home for 6 years prior to her death, and was determined to be capable. She managed her own finances and had no close family. The licensee began approaching her for money, which he applied to her rent, yet continued to borrow money beyond the amount paid of rent. There was nothing in writing, no records of the payment, and the resident had no independent legal advice. In 2016, the resident’s health began to deteriorate and she was worried that she would not be able to cover her expenses due to the amount of money she had lent to the licensee. She approached the licensee about repayment and the licensee took no action. The loans were outstanding upon the resident’s death. The Tribunal found this amounted to financial abuse as it was found to be “misappropriation” of resident money under the Act, pursuant to Regulation 166/11 and section 67.
In considering all of the claims against the residence, the Tribunal found that the loans raised concerns about the licensee’s ability to operate the home with honesty and integrity. This was exemplified due to the third resident’s dependency on the home. Moreover, the Tribunal noted that in the third case, there was harm to the resident’s peace of mind along with a risk that she would not be able to pay for her own long-term care.
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The Retirement Homes Regulatory Authority was established in 2010 by the Ontario government under the Retirement Homes Act, 2010, S.O. 2010 Chapter 11 (the “Act”), and acts as a licensing body for retirement homes in Ontario.
The fundamental principle of the Act is to ensure that a retirement home is “operated so that it is a place where residents live with dignity, respect, privacy and autonomy, in security, safety and comfort and can make informed choices about their care options.”
Section 67 of the Act states:
- (1) Every licensee of a retirement home shall protect residents of the home from abuse by anyone.
(2) Every licensee of a retirement home shall ensure that the licensee and the staff of the home do not neglect the residents
Section 67 encompasses financial abuse as well. According to Regulation 166/11 of the Act, financial abuse is defined as “any misappropriation or misuse of a resident’s money or property.” Pursuant to the Act, a licensee must establish a trust fund if they are in charge of money from a resident; however, the Act is silent with respect to loans between a resident and the licensee.
Due to the normal process of aging, financial decision-making ability naturally declines and, as such, it is important that places of trust, such as retirement homes, avoid situations that may lead to financial abuse. Residents of a retirement home are dependent on the operator of the home for housing, safety and care. This dependency creates an expectation of trust between the staff and the residents. Moreover, many elderly individuals may lack mobility, suffer from visual impairment, or may not have family that comes and visits them, resulting in more of an increased attachment or trusting relationship with individuals at the residence.
Where a retirement home resident is competent, the issue of whether financial abuse exists will depend on the circumstances surrounding the home. For example, it is a possibility that a perfectly competent retirement home resident may have a friendship with a staff member of the residence, and desire to give them a monetary loan or gift as a sign of friendship.
It is important not to assume that every case of an elderly person in a residence providing a loan to staff is financial abuse, as assuming vulnerability in adults may lead to paternalism. Furthermore, pursuant to the Quebec case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. N. (R.), 2016 CarswellQue 13351, there is a “need to balance the protection of aged persons against exploitation, on the one hand, and the scrupulous need to respect their autonomy in exercising their legal rights on the other hand.”
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Will there ever be a time when artificial intelligence may be used as corroborating evidence in estate litigation?
Estate litigators are familiar with section 13 of the Evidence Act, which states that, “an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence”.
Couple this requirement with the advancement of posthumous artificial intelligence.
According to a recent article on CNN, an AI start-up has been extracting information from the online presence of a deceased person. Information gained from text messages, tweets, and Facebook posts were used to create a computerized chatbot based off the deceased’s personality.
According to the CNN author, several conversations were had with the deceased (as a chatbot), and believed that the deceased’s ethos was well captured. In fact, the author notes that one such friend of the deceased was texting with the chatbot for 30 minutes without realizing that the discussion was with the chatbot.
It is interesting to wonder whether AI will ever develop to the point where a litigator will rely on information from a chatbot as corroborating evidence.
Other interesting blogs discussing estates and technology can be found here:
As an estate planner and a lawyer, it is important to remember that when creating an estate plan, familial relations may turn negative. It becomes crucial for estate planners to ensure that their instructions are complete, in order to protect themselves in the case of a family fight.
Often, in the process of a married couple jointly retaining a lawyer to prepare their wills, “mirror wills” are prepared. Mirror wills typically provide for all estate assets to pass to the surviving spouse.
An issue arises in the case of a lawyer who prepares mirror wills and one of the spouses decides to make a change, adversely affecting the other spouse. What are the lawyer’s ethical obligations?
Pursuant to the Rules of Professional Conduct, Rule 3.3-1 states that a lawyer has an ethical obligation to hold in confidence all information concerning their clients, and Rule 3.4-1 creates an ethical obligation to avoid conflicts of interest.
It is important, therefore, that when acting for a married couple, the lawyer outlines his or her ethical obligations, and specifically, if applicable, outlines that they are acting in a joint retainer. Rule 3.4-5 outlines the ethical obligations of a lawyer in the case of a joint retainer:
Before a lawyer acts in a matter or transaction for more than one client, the lawyer shall advise each of the clients that:
(a) the lawyer has been asked to act for both or all of them;
(b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.
While outlining the joint retainer rules to a client, it is important that the lawyer considers what they would do in the case of one of the spouses asking the lawyer to alter a mirror will. While the lawyer could refuse to draft a new will, the requesting spouse may be able to find another lawyer to do the will, and the lawyer will still have the issue of whether or not to tell the disadvantaged spouse. This may give rise to a conflict of interest.
The second Commentary to Rule 3.4-5 specifically contemplates and guides the lawyer acting for a married couple as to what should happen in this scenario. Simply put, any subsequent communication to change the will by one of the spouses would be “treated as a request for a new retainer and not as part of the joint retainer.” The lawyer would therefore have a duty to decline the new retainer unless the other spouse consented to the change.
The critical issue is that this possibility must be conveyed to the spouses at the outset of the joint retainer.
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This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss the purchase of estate assets by an estate trustee, and some steps that should be taken in the event of a purchase to ensure compliance with fiduciary obligations.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Mary Kills People is a brand new Canadian television show starring Caroline Dhavernas. Mary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide. The series premier took place on January 25, 2017. According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.
As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional. This landmark decision originated in proceedings before the British Columbia Supreme Court. In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide. The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life. In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen. However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record. See Carter v. Canada (Attorney General),  B.C.J. No. 1897, for this particular evidentiary ruling.
While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.
Click here for the Season 1 teaser of Mary Kills People.
Happy reading (and watching)!