With our ageing population and shift in demographics, there is a growing awareness of elder abuse and in particular elder financial abuse. In many cases such incidents remain unreported and unresolved; however, where the Court does become involved, it can not only provide a remedy but also lay the groundwork for further policy development.

Background

In Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, Justice Mew considers the issue of default summary judgment as against a retirement home employee, and a personal support worker (“PSW”), who stole $229,000.00 from an elderly resident of the home where she was employed. The theft only came to light after the resident’s death. The PSW pled guilty to criminal charges and received a sentence of 18 months’ imprisonment and a restitution order for $229,000.00 less any amounts recovered. Sometime after the theft, the PSW filed for bankruptcy and received an automatic discharge. In addition to considering whether default judgment could be awarded, the Court had to decide whether such judgment would survive the PSW’s bankruptcy discharge.

The Plaintiffs (the deceased’s estate trustees and two daughters) also sought summary judgment as against the retirement home which employed the PSW, on the grounds that it was vicariously liable for her actions.

Will a Civil Order survive a Bankruptcy Discharge?

The Bankruptcy and Insolvency Act, RSC 1985, c.B-3 sets out certain debts that are not released by a bankruptcy discharge as follows:

178 (1) An order of discharge does not release the bankrupt from:

(a) any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence, or any debt arising out of a recognizance or bail;

(d) 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; … [emphasis added]

As such, it is clear that a restitution order is exempt from release based on subsection 178 (1)(a). Hence, Justice Mew saw no reason why a civil judgment for the remaining balance should not be entered as against the defendant.

In the alternative, the Plaintiffs advanced the argument that a surviving civil judgment should be awarded because the PSW acted in a fiduciary capacity. This argument was based on the undefended allegations set out in their Statement of Claim.

Justice Mew noted, “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.”

After reviewing the relevant law on the characteristics of a fiduciary relationship, the Court concluded that the “relationship between an elderly resident of a retirement home and a personal support worker can also be a fiduciary one, and that the circumstances deemed to have been acknowledged by [the PSW] evidence the existence and breach of a fiduciary duty”.

The Plaintiffs were therefore entitled to a surviving judgment for the amounts claimed under the exceptions set out in sections 178 (1) (a) and (d).

Vicarious Liability of the Retirement Home

In support of the summary judgment motion, the Plaintiffs filed an Affidavit signed by one of the deceased’s daughters. The defendant retirement home filed what Justice Mew described as a “carefully crafted” Affidavit signed by the sole director and shareholder of the retirement home. Notably, neither of the affiants were cross-examined on their Affidavits.

There was a significant discrepancy between the Plaintiffs’ evidence and that of the retirement home. The Plaintiffs claimed that the retirement home had arranged the PSW services while the retirement home maintained that it had nothing to do with arranging for the additional care and that as a matter of policy it would have been up to the family of the resident to arrange for such services. There was insufficient evidence to support either version of events.

The Court further noted that the leading case on vicarious liability for intentional torts is Bazley v. Curry, [1999] 2 SCR 534 wherein Justice McLachlin, set out the guiding principles for determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive. The fundamental question in such cases involves whether the wrongful act is sufficiently related to conduct authorized by the employer to justify a finding of vicarious liability. Where there is a significant connection between the creation or enhancement of the risk and the wrongful act, even if unrelated to the employer’s desires, a finding of vicarious liability is appropriate.

After reviewing the law on summary judgment motions, Justice Mew noted that while a Motions Judge may presume that parties have put forward their best evidence, caution ought to be exercised by a court where it is being asked to apply a legal principle where precedents are inconclusive in their guidance. Extra vigilance is justified where gaps or deficiencies in evidence may have a bearing on the application of the law.

Ultimately, Justice Mew declined to rule on the issue given the gap in evidence and the potentially far-reaching implications of such a decision. However, it was further emphasized that evidence would be helpful in reaching a conclusion, leaving the door open to potential exposure for vicarious liability.

Conclusion

A civil judgment may survive a bankruptcy discharge where a fiduciary duty has been breached through fraud, misappropriation or theft etc.. Moreover, as this case demonstrates, the relationship between a PSW and a retirement home resident can be a fiduciary one. A retirement home does have potential exposure to vicarious liability for the actions of its employees-Just not in this case-at this juncture.