Tag: retirement home

30 Nov

Are retirement homes vicariously liable for the misconduct of their employees?

Doreen So Continuing Legal Education, Elder Law, Estate & Trust, Ethical Issues, General Interest, Litigation, Uncategorized Tags: , , , , , 0 Comments

 

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. Curry1999 CanLII 692 (SCC), [1999] 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!

Doreen So

 

27 Nov

Are personal support workers and caregivers fiduciaries?

Doreen So Elder Law, Estate & Trust, Ethical Issues, Executors and Trustees, General Interest, In the News, Litigation Tags: , , , , , , , , 0 Comments

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).

Thanks for reading!

Doreen So

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01 May

Financial Abuse of the Elderly

Ian Hull Elder Law, Estate & Trust, Ethical Issues, In the News, News & Events, Uncategorized Tags: , , , , , , , 1 Comment

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. (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.”

Thanks for reading,

Ian M. Hull

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