“The courts, and society in general, need to be vigilant to the abuse of the elderly and the vulnerable. ” – #41

While a large number of the so-called “baby-boomer” generation are becoming elderly and more reliant on third parties for their basic needs, we should be vigilant to the abuse of the elderly and the vulnerable in our daily life. A recent decision of Superior Court of Quebec drew our attention to the elder abuse issue. In this case, an elderly woman was financially abused and forced to be transferred to a residence out of her own community without her consent and without any prior notification. The Court found the Defendants had violated the elderly woman’s numerous Charter rights. This article intends to analyze the justification of the awards in moral damages and punitive damages in elder abuse matters. 

Key Facts

On or about March 28, 2013, the defendant A fabricated a false mandate given in anticipation of incapacity of an elderly woman. The Defendant A staged a scene in a coffee shop together with two witnesses and asked the elderly woman to sign the alleged Mandate. However, the signed document was actually related to her lease.

In order to homologate this False Mandate, co-defendant A mandated a doctor (Co-defendant E) and a social worker (the co-defendant C) and her husband (co-defendant D) to prove that the elderly woman was in permanent and total incapacity.

The doctor, Co-defendant E claimed that in order to evaluate the capacity of the elderly woman, she visited an “elderly woman” at her place under the guidance of the Defendant A. Co-defendant E stated that she had met with an old woman whose appearance was “quite frightening”. She looked old, overweight with a wild look, dirty hair that looked sticky with excrement in it, strong body odour. Co-defendant E stated that the women she met spoke only Russian. She spoke something over and over again during their meeting. However, during the trial, the Co-defendant E was “blown away” when she saw the elderly woman in dispute. Although the two elderly women had the same hair and body shape, they could not be the same person. The elderly woman in dispute spoke not only English but also French. She was able to participate actively in back-and-forth conversation fluently.

On or about December 19, 2013, the False Mandate was homologated by the Deputy Clerk of the Superior Court.

As a consequence, on January 7, 2014, all of the money in the bank accounts of the elderly woman (474 174.87$) was transited to the account of Co-defendant D, husband of the Co-defendant C.

On February 2, 2014, the Defendants A and B entered into the domicile of the elderly woman without her consent and caused a mischief to the door. They took photos of the apartment and the elderly woman in order to obtain a Court Order to force the removal of the elderly woman. Police officers were called, the accused were arrested and released.

On February 12, 2014, the elderly woman was forced by an order of the Court obtained by the Defendants to leave her house. The elderly woman was transferred to a residence out of her own community, Ukrainian Villa. She was not allowed to use the telephone or have visitors. She said that she would commit suicide if she stayed forced to stay there.

At the end of February 2014, the elderly woman received help from the Police officers in order to leave the residence.

At the end of year 2014, the Superior court declared the False Mandate null and void. During that trial, the experts on the mental capacity of elderly woman concluded that she was capable to make personal decisions and manage her assets.

On December 6, 2016, the elderly woman died. The elderly woman was fully reinstated in her rights and she received her money back (474 174.87$) before her death.

Defendant A was found guilty and convicted for obstruction of justice, various forgery-related offences, mischief and unlawful presence in a dwelling house with intent to commit an indictable offence.

The Succession of the elderly woman, in continuance of her proceeding, claimed that Defendants colluded together in an unlawful and intentional interference of her Charter rights, and this with a view to financial gain.

Applicable Laws

Art. 1457 C.c.Q. is the general provision of extra-contractual liability at civil law. Art. 1457 (1) (2) C.c.Q. provide that a person endowed with reason, who fails in the duty to abide by the rules of conduct incumbent on him, is liable for any injury he causes to another by such fault and is bound to make reparation for the injury.

Art. 1 Charter of Human Rights and Freedoms provides that every human being has a right to personal security, inviolability and freedom.

Art. 4 Charter of Human Rights and Freedoms provides that every person has a right to the safeguard of his dignity.

Art. 5 Charter of Human Rights and Freedoms provides that every person has a right to respect for his private life.

Art. 6 Charter of Human Rights and Freedoms provides that every person has a right to the peaceful enjoyment and free disposition of his property, unless the law provides otherwise.

Art. 48 Charter of Human Rights and Freedoms provides that every aged person has a right to protection against any form of exploitation, including financial exploitation and that such a person also has a right to the protection and security provided to him by the persons acting in their stead.

Art. 49 Charter of Human Rights and Freedoms provides that the court may condemn the person guilty of unlawful and intentional interference to punitive damages.

Art. 328 C.C.P. provides that the court should determine the share of each persons who are found solidarily liable for injury if the evidence permits.

Analysis of the Court

Do the facts justify an award in moral damages? In punitive damages? If so, for what amounts?

I. Moral Damages

Plaintiff seeks a solidary condemnation in the amount of $600,000 in moral damages against Defendants A, B, C and D.

1. What are moral damages?

The Supreme Court of Canada provides the definition of moral damage in Quebec (Public Curator) v.  Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 SCR 211:

“Moral prejudice has been defined as including loss of enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice. […] It is undeniable, nonetheless, that moral prejudice is a real prejudice.”

The Supreme Court of Canada has indicated that there are three different approaches to assess moral damages. In para. 105 of Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168,  the Supreme Court states:

“The conceptual approach measures loss “based on an appreciation of the objective seriousness of the injury […] The personal approach ‘seeks to evaluate, from a subjective point of view, the pain and inconvenience resulting from the injuries suffered by the victim’ […] The functional approach seeks to calculate the cost of measures that could provide solace to the victim […] These approaches ‘apply jointly, and thereby encourage a personalized evaluation” of non-pecuniary damages’ […]”

The Supreme Court of Canada also indicated that the $100,000 limit provided by the Andrews trilogy does not apply to claims which are unrelated to bodily injury (para. 146, Hinse v. Canada (Attorney General), [2015] 2 SCR 621).

2. What is the appropriate amount to be awarded as moral damages in the present matter?

2.1 Personal Approach

In the present case, the elderly woman lost her civil rights and was forcibly removed from her home to a residence where she was isolated from friends and acquaintances, while losing control over all of her assets through fraud, deception and misrepresentation by the defendants. The preponderance of proof demonstrates that the elderly woman was very distressed by the events as this unpleasant experience reminded her of her horrible experience in Nazi concentration camp in her youth.

2.2. Conceptual Approach

The Court states that the term exploitation indicated in Art. 48 Charter should not be interpreted restrictively to financial abuse only (See also Art. 53 Charter). Accordingly, the use of the elderly woman’s money against her will, contrary to their interests or without consent would constitute exploitation within the meaning of Article 48 Charter (See also Plan d’action gouvernemental pour contrer la maltraitance envers les personnes aînées). 

In the present case, given the age and physical restrictions of the elderly woman, she was vulnerable. Besides, the bankers testified that on an objective bases, it was unusual to see mandatories remove so quickly all existing funds from the mandator’s accounts.

2.3 Functional Approach

Given that the elderly woman has deceased since the institution of proceedings, it is difficult to calculate measures which would have provided her solace. The Court notes that the functional approach will likely play a less important role in the evaluation of damages in cases of elder abuse than it might in other cases.

The Court states in para. 411 that “the amount to be awarded should not be so excessive and disproportionate as to defeat the purposes of an award in moral damages. However, it should not be so limited as to constitute a licence to abuse the elderly”. Having taken into consideration of all the appropriate factors and evidence, the Court is of the view that an award in the total amount of $200,000 in moral damages is appropriate in the present circumstances.

The interest and the additional indemnity provided by Art. 1619 C.c.Q. on the compensatory and moral damages are to be calculated as of the date of filing of the initial originating demand, being November 24, 2016.

II. Punitive Damages

The Plaintiff seeks a solidary award of $2,000,000 in punitive damages against the Defendants according to Art. 49 Charter.

3. What constitutes unlawful and intentional interference stipulated in Art. 49 Charter?

The Supreme Court of Canada indicates in para.164 of Hinse v. Canada (Attorney General), [2015] 2 SCR 621:

“…There will be unlawful and intentional interference within the meaning of the second paragraph of s. 49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence.

In other words, the person should be intentional in terms of the consequence of the interference. Such intent exists when one knows the extremely probable consequences of their interference.

The Court considers that the Defendants intended to cause the obvious consequences of their wrongful conduct and, clearly had fully knowledge of at least the extremely probable consequences of what their conduct would cause. This gives rise to punitive damages.

4. What amount of punitive damages would be appropriate in the circumstances?

4.1 What is the objective of awarding punitive damages?

The Supreme Court of Canada describes the objective of punitive damages in the following manner in paras. 47 to 53 of Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64:

An award of exemplary damages seeks to punish a person who commits an unlawful act for doing so intentionally and to deter that person, and members of society generally, from repeating the act by condemning it as an example […]”

The Supreme Court of Canada confirms that punitive damages serve three functions, namely punishment, deterrence and denunciation.

Moreover, it is worth to note that “punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the reparatory damages is wholly or partly assumed by a third person.”

Although the Defendants in the present case all received various forms of punishment for the respective roles, namely criminal conviction and radiation by the professional order for several years and harsh criticism in media coverage, the punishment objective envisaged by the Charter is separate from other forms of punishment.

Although the Defendants in the present case has returned all the money eventually pursuant to Court Orders to the elderly woman, this conduct does not constitute an act made through kindness or remorse.

Although the Defendants in the present case has caused such a severe harm on the elderly woman’s life, none of them has ever appeared to understand the seriousness of their unlawful conduct during the hearings in front of the Court.

4.2 What amount of punitive damages would be appropriate in the circumstances?

Although the Court could express its outrage at the egregious conduct of the defendants through an award of substantial amount of money (See para. 47 of Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64 and Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595), punitive damages must be awarded with restraint (See para. 135 of Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168).

Then, the Court takes the patrimonial situation of the Defendants into consideration. The Court emphasizes that the Plaintiff should not be expected to carry the burden of proof to establish the Defendants’ ability to pay as debtors. In fact, it should be a shared burden. In the present case, the Defendant strategically limit their input concerning their patrimony to general and vague commentary. The Court states that this strategy is not favorable to them. As stated in para. 213 of the Supreme Court of Canada’s decision on Richard v. Time Inc., [2012] 1 S.C.R. 265, the lack of evidence in this regard “in no way means that they are immune from a possible award of damages”.

In Quebec, the punitive damage awards generally varied between $5,000 and $250,000. The larger amounts were usually awarded against corporations and rarely against individuals, unless quite wealthy.

Accordingly, the punitive damages to be awarded are as follows:

– Defendant A: $100,000

– Defendant B: $50,000

– Defendant C: $75,000

– Defendant D: $75,000

These damages will bear interest and the additional indemnity provided by law as of the date of the judgement.

Reflection

在社会中,许多孤寡老人很不幸地沦为他人剥削利用的对象。有些老人无儿无女,有些老人则被安置在疗养院。有些老人常年承受着病痛折磨,有些老人则往往被孤独折磨得精神失常。而在这个弱势群体里,有些老人正经受着财务上的剥削抑或是肉体和精神上的折磨。作为法律执业者,我们有责任采取有效的行动保护这些老年人,及时止损不法行为,并为受害人挽回损失。 (Marie Beaulieu, L’exploitation financière des personnes aînées : prévention, résolution et sanction; Éditions Yvon Blais)

En outre, la valeur de l’indemnité accordée pour la perte non pécuniaire fut plafonnée par la Cour suprême du Canada, en 1978, à un montant de 100,000$ pour une personne ayant une incapacité totale permanente, lorsque la perte découle d’un préjudice corporel. Cependant, ce montant doit être ajusté en fonction de l’inflation de sorte que ce plafond dépasse aujourd’hui environ 350,000$ (Voir Paquette (Succession de Groulx-Paquette) c. Plante, 2020 QCCQ 6074).

(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. 😊)