As spring approaches, so do thoughts of moving. Many seniors choose to move into a private residence that offers various services. It is important to remember that such a residence is operated as a business. If it stops earning money, it may close.
How do we balance the rights of the residents with the rights of the owner?
The right of seniors and the handicapped to protection against any form of exploitation is set out in the Quebec Charter of Human Rights and Freedoms. Exploitation can be physical, psychological, social or moral. On one side is profit and power, on the other, the vulnerable person. It can be difficult to determine who is vulnerable.
The charter acts as a new dimension of law that limits injustice by introducing an element of morality in relationships with seniors and others considered vulnerable. What constitutes exploitation can be difficult to define, but once assessed can result in compensation for damages as well as punitive or moral damages. The values the charter seeks to protect must be balanced against the objectives of the particular law on which a party is basing his claim.
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A seniors residence was closing because the building required expensive repairs, the employees had gone on strike, and the business was no longer profitable. Although the residents had been made aware of the situation the previous year, there had been no mention of closing. In April, the administration made the decision to close. The residents were advised in May and had to move by June.
Each resident was visited by a team holding a written agreement that offered an indemnity of three months rent, any social or nursing services required, assistance in finding alternate lodging and full payment of all moving expenses. In return, the resident relinquished any further claims against the owners. Most residents signed.
One went to the rental board. He had originally refused to sign but was told he had no choice as the building was closing and there would be no electricity or water after June 22. He did sign, moved and deposited a cheque from the owners of more than $4,000. He said he thought the agreement wasn’t valid and that the Human Rights Commission would do something about it. The Quebec Civil Code provides for a six-month notice when an owner wants to take over the tenant’s property but there is no provision for a situation where a residence closes. The plaintiff alleged the agreement was invalid on the ground of exploitation under the charter.
The rental board said there was no exploitation. The owner had carried out all his obligations under the agreement and the plaintiff had deposited the cheque without protest. The six-month notice provision in the Civil Code was not the equivalent of a six-month indemnity.
The plaintiff could have refused to sign and exercised his rights to claim damages later on. He appealed and lost.
Exploitation exists when someone in a position of control profits from acts detrimental to the interests of a vulnerable party. In the case of a senior who, a month prior to his death, loaned $25,000 to the daughter of a friend and signed a contract stating that in the event of his death the loan would be forgiven, the contract was declared invalid. The judge invoked the right of seniors to protection against exploitation, held the man was vulnerable and unable to make a clear decision when he made the loan.
The borrower should have realized this and her behaviour in accepting the loan and contract constituted abuse. She was ordered to repay the full amount as well as punitive damages in the amount of $500.
Exploitation was also held to exist when the family of a 90-year-old noted that several cheques for amounts ranging from $74 to $560 had been made to the order of the senior’s personal hairdresser over a two-year period. Some of the cheques represented payment for services rendered. The explanation provided by the haridresser for others, totaling more than $5,000, was not accepted by the court. She had no written proof and the client had passed away. She was ordered to repay the amount to the estate of her client. In addition, the judge found that the hairdresser had exploited her client and taken advantage of their long-standing relationship. She was ordered to pay $500 in moral damages.
An 81-year-old was cared for and lived with her daughter. The Human Rights Tribunal found her to be vulnerable because of her lack of cognitive capacity, reduced mobility and total dependence on her daughter for her basic needs.
Everything went well until the daughter acquired a boyfriend.
The tribunal believed that the boyfriend was in a position of strength with regard to the mother and that the daughter was unable to protect her mother against his manipulative behaviour. The tribunal decided that there had been an appropriation of funds from the woman. The right of all seniors to be protected against all forms of exploitation was invoked and the boyfriend was ordered to repay the money he had taken as well as punitive damages in the amount of $2,000, as he had known what he was doing and had done it for his personal benefit.
Moral damages are awarded when a charter-protected right is violated. The amount will vary with the vulnerability of the victim. Punitive damages are meant to act as a punishment for reprehensible behaviour in the illicit and intentional violation of a right protected by the charter and to discourage repetition by the guilty party as well as by third parties of such behaviour.
Don’t be a victim; be vigilant, not vulnerable.