Court File and Parties

COURT FILE NO.: CV-18-76800 DATE: 2018/07/06 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE

In the matter of the Substitute Decisions Act, 1992, S.O. 1992, c. 30

RE: Leopold Edwin Siberg by his litigation guardian Maria Amati, Applicant AND: Bruyère Continuing Care Inc. o/a Saint-Vincent Hospital, Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Arthur Ayers, for the Applicant Roberto Ghignone, for the Respondent

HEARD: June 14, 2018 and July 4, 2018

Reasons for Decision

[1] The applicant brought a motion for a mandatory injunction. She sought two orders. The first was an order that she have unrestricted access to her husband for whom she is the attorney for personal care and property. The second was an order that video cameras she had installed in her husband’s hospital room not be interfered with and not be obstructed.

[2] At the conclusion of the hearing I indicated that the applicant had not met the test for injunctive relief under s. 101 of the Courts of Justice Act. On the other hand, I indicated that I would consider an order for preservation of evidence under Rule 45 of the Rules of Civil Procedure.

Context of the Dispute

[3] The underlying dispute is most unfortunate. The applicant, Mr. Siberg, in whose name this proceeding was commenced, is a patient in Saint-Vincent Hospital in Ottawa. St. Vincent is a “Group F” Public Hospital owned and operated by Bruyère Continuing Care Inc. and providing care for chronically ill patients. It is common ground that the applicant should not be in that facility as he has been designated as a patient requiring long term care. He has been in the hospital for over two years awaiting transfer to a long-term care facility and he is housed in a unit of other patients who are in a similar situation.

[4] Mr. Siberg is 89 years of age, has advanced dementia and a number of medical conditions requiring medical and nursing attention. For example he has diapers that require changing and he must be moved regularly to avoid bed sores. From time to time he must be transported to one of the general hospitals when he requires acute care or testing that is not available at St. Vincent.

[5] Maria Amati is Mr. Siberg’s wife. She is Mr. Siberg’s attorney for personal care and his attorney for property. She is also the litigation guardian in this proceeding.

[6] Since at least 2016, there have been ongoing disputes about the care provided to the applicant. Ms. Amati has catalogued a number of complaints about the medical care, nursing care and monitoring of her husband. In addition, she believes that staff members have assaulted or bullied her husband or failed to respect his dignity. From time to time she has had negative and angry interactions with members of the hospital staff. Senior management of the hospital has been regularly involved with Ms. Amati and both the hospital and Ms. Amati have retained counsel.

[7] For its part, the hospital is in a difficult situation. While recognizing that Ms. Amati has the right and the duty to make personal care decisions for her husband and has the same rights to information and to authorize or decline treatment as the patient, the hospital also is concerned to protect staff from harassment and to respect the rights of other patients. The hospital has initiated investigations of the various complaints as required by its protocols and by regulations. Senior management of the hospital has been regularly involved. Both parties have retained counsel.

[8] So difficult has this become that on more than one occasion, Ms. Amati has been removed from the hospital and security guards have been stationed outside her husband’s room. Although St. Vincent generally has round the clock visiting hours and permits family members of patients to stay in the hospital overnight, the hospital has restricted Ms. Amati’s access to the hospital from time to time. At the moment she has been told that unless there is an emergency, she may only come to the hospital between 10:00 a.m. and 3:00 p.m. when various managers are present.

[9] At some point there was discussion about monitoring the applicant’s room via video camera. I am told that the hospital had proposed CCTV with footage to be maintained by hospital security. Instead, Ms. Amati installed her own video cameras. These are apparently motion activated web cams which stream video and may be accessed over the internet by secure password. I am told that only Ms. Amati and her counsel have access to the video but that is not documented in the affidavit evidence.

[10] At the time when this motion was launched, the web cams were in place but frequently when staff members entered the room, they covered the cameras as they had not consented to have their images or their activities streamed over the internet. I was told that as of the date the motion was argued, the hospital had installed its own video monitoring system. I have required Mr. Gignone to obtain an affidavit describing the particulars of this surveillance but I understand that whatever the camera captures will be under the control of hospital security.

The Legal Proceedings

[11] This is the background to the current legal proceeding. It is important to note that except for this application there is not presently any litigation before the court. Neither the applicant nor Ms. Amati has sued the hospital. The hospital has not taken legal proceedings against the client or his attorney for personal care other than perhaps threatening to have her charged with trespassing if she does not respect the conditions that the hospital has imposed on her right of entry to the facility.

[12] On June 14th, 2018, Ms. Amati commenced an application in the name of her husband. The application seeks “directions pursuant to s. 68 of the Substitute Decisions Act, 1992” to assist the applicant in “fulfilling her duties as attorney for personal care and property” and the injunctive relief which is the subject of this motion.

[13] On the same date the applicant brought a motion for an ex parte interim injunction. As noted in the introduction, the requested relief was an order requiring the hospital to lift the restrictions on Ms. Amati’s access to the hospital and an order that her camera monitoring system be permitted to record what went on in the hospital room without being obstructed by the hospital staff.

[14] There was no justification for seeking such an order ex parte. The circumstances described in the motion record and the relief requested could not have constituted an “emergency” requiring a motion without notice. The applicant’s counsel was well aware that the hospital had counsel and both Mr. Nasrallah for the applicant and Mr. Gignone for the hospital had been involved in the discussions leading up to the installation of the cameras. When counsel for the applicant appeared before me on June 14th at 10:00 a.m., I directed them to contact Mr. Gignone and advise him where they were. When court reconvened at 2:00 p.m., counsel for the hospital was present and of course he asked for a brief adjournment to prepare responding materials.

[15] The motion for an injunction came back on before me on July 4th, 2018. I was presented with significant responding evidence concerning Ms. Amati’s behaviour in the hospital, her interaction with staff members and the efforts the hospital had made to accommodate her.

Analysis and Disposition

[16] Let me say at once that for purposes of this motion I am not making findings of fact about the conduct of Ms. Amati or the level of care provided by the hospital. For purposes of the motion I am simply concerned with whether or not there is a basis for the court to issue orders. I understand that there are investigations and complaint resolution processes ongoing. There may also be police involvement. The question for the moment is simply whether the request for an interim injunction or other mandatory order is one that should be granted.

[17] Granting of interlocutory injunctions is generally governed by a three part test. Firstly, the party seeking the injunction must demonstrate there is a serious case to be tried. Secondly, the moving party must demonstrate that there will be irreparable harm (which cannot be addressed in damages) if the injunction is not granted. Thirdly, the court must be satisfied that the balance of convenience and in appropriate cases, the public interest, favour the moving party. [1] Interlocutory injunctions, in other words, are normally analyzed in terms of preserving the rights of the parties during litigation. There are also procedural requirements such as the moving party providing an undertaking to pay damages should the injunction prove to be unjustified and inflict costs or damages on the opposing party.

[18] In some cases however, the moving party must establish a strong chance of success to obtain the order. This is so if the interlocutory order will effectively determine the question. The apparent strength of the claim can also impact the assessment of balance of convenience. [2]

[19] The risk of an immediate threat to the health or safety of Mr. Siberg would satisfy the test of irreparable harm if the evidence supported such a finding. Indeed an imminent threat to health or safety would in a real emergency justify an injunction in advance of contemplated litigation. That is not the case here. The relief that is being sought is not to require the hospital to provide or withhold a particular medical treatment. It has only to do with the manner in which his health care may be monitored. In other words, the requested relief is not directly concerned with Mr. Siberg’s care but really with the right of Ms. Amati to monitor that care through her physical or electronic presence on the one hand and the hospital’s right to impose reasonable conditions on the other.

[20] I agree that the question of balancing the rights and duties of the person holding the power of attorney for a vulnerable and incapable patient against restrictions the hospital wishes to impose is a justiciable issue. It may be the case that s. 68 of the Substitute Decisions Act is an appropriate vehicle to obtain a ruling on the matter. In this sense there is a serious issue to be resolved but on the facts of this case, I would have to be persuaded that there is strong evidence the hospital is being unreasonable. To the contrary, the hospital’s evidence demonstrates a continued recognition of the need for Ms. Amati to be involved in care decisions and it strongly suggests the restrictions are reasonable. Ms. Amati continues to have daily access to her husband and she has not been asked to remove her cameras. While she cannot see the hospital staff at work when they cover the cameras, she can see her husband before and after and she can hear what is being said.

[21] Now it appears the hospital has implemented its own system of surveillance for the purpose of monitoring the quality and efficacy of the medical care and also to protect against false or exaggerated allegations of abuse. I await the supplementary affidavit confirming the manner in which this system is operating and how the record is being maintained.

[22] An interlocutory injunction involves the court inserting itself into the dispute by way of an order that can be enforced through the contempt power. It is an extraordinary remedy and is granted before there is a possibility of determining the disputed facts. Courts should be slow to involve themselves in medical and health care decisions or to become involved when there are already investigations underway. The balance of convenience does not favour granting an injunction on the facts of this case.

[23] In summary, the applicant does not meet the test for interlocutory injunctive relief. In particular, the evidence is not strong that Ms. Amati is in the right and the hospital in the wrong, the balance of convenience does not favour the applicant and irreparable harm if the relief is not granted has not been established.

[24] This does not mean that some form of order should not be granted. There is a justiciable issue before the court. The status quo appears to be that both parties are now monitoring what goes on in the patient’s room by way of electronic surveillance. I am not suggesting that a system of double monitoring is appropriate or necessary but it appears it is now in place.

[25] Three questions flow from this. Firstly, what evidence is being generated and preserved? Secondly, who has control over the evidence? Thirdly, who has access to it?

[26] Rule 45.01 of the Rules of Civil Procedure provides the court with authority to make an order for the custody or preservation of property relevant to an issue in a proceeding. This includes an order for the preservation and custody of relevant evidence. In addition, if the rule is inadequate for the purpose, the court has inherent jurisdiction to control the process of litigation which would include directions for the extraction, creation and preservation of electronic records.

[27] While an injunction is not required, the court would appropriately require the parties to preserve, control and disclose the evidence generated by video recordings of Mr. Siberg’s condition and care.

[28] I invite the parties to reach agreement regarding a single system of recording, who may have access to it and for what purpose and how it is to be preserved. I have directed the hospital to provide the particulars of the system just installed.

[29] In the meantime there will be an order that the information generated by the video recordings shall be tightly controlled and may not be released to any party or for any purpose other than the purposes of the court proceeding except as may be required for clinical purposes. Each party is to disclose to the other how the system operates, what safeguards are in place to prevent unauthorized access, what video or other record is being maintained and who controls that record.

Summary

[30] In summary, the motion for injunctive relief is dismissed. There will be an order for the maintenance, control, preservation and disclosure of the video records.

[31] I will entertain written submissions on costs not to exceed 2 pages in length in addition to a costs outline. The respondent is presumptively entitled to costs. The respondent may have 15 days to deliver such submissions and the applicant may have 15 days after that to respond.

Mr. Justice Calum MacLeod Released: July 6, 2018

[1] RJR-MacDonald Inc. v. Canada (AG), [1994] 1 SCR 311 [2] See Sharpe JA, Injunctions and Specific Performance, Thomson Reuters, looseleaf edition, 2017 – discussion at paras 2.160 – 2.220