Protection of the elderly against exploitation

Joyce Blond Frank

There are times when seniors are taken advantage of even by members of their own family, by friends, as well as by strangers pretending to be friends. In consequence, the law has made a special effort to protect them. Families, therefore, have a moral duty to protect their elderly members, and a legal one.

This protection is provided by legislation in the form of the Quebec Charter of Human Rights and Freedoms which allows an elderly person who has suffered abuse or exploitation to complain to the Human Rights Commission and sue for damages.

Exploitation legally includes all kinds of abuse of an elderly person by someone who is stronger or more dominant, if this dominant person makes a profit or receives a benefit from the abuse. For example, damages have been awarded to the abused where a physician borrowed money from a 79 year old patient; where the owner of a residence for the elderly borrowed money from a 90 year old resident who had no memory and was physically and psychologically dependent; and where a salesman deliberately sold defective wheelchairs and other orthopedic aids to those considered vulnerable.

The right to protection and security provided by law to the elderly has been held to override the rights to which others may be entitled. This is what happened in the case of a couple, 87 and 95 years old, who owned a duplex, lived in one section and rented the other. They required a certain amount of care. Neither had any family in Montreal and so they had to hire and rely on outside people care for them. They wanted to house these helpers in that section of the duplex which was rented, but the tenant objected to giving up occupancy of the premises.

Under Quebec law residential property can only be repossessed by the landlord for use by the owner himself, his children, or other family members whom he supports. The court decided that the tenant's premises were needed to replace the family who, were they present, would be obliged to ensure that the couple was properly cared for. Because the premises were required for their protection and security, the provisions of the Charter superseded the provisions of the Civil Code and the request to retake possession of the premises was granted.

In yet another case, a 47-year-old waitress worked at the residence in which an 81-year-old with Alzheimer’s lived. Their relationship flourished for two-and-a half years during which they spent his monthly income. He bought her expensive jewelry and a car, signed a mortgage for a house in which he never lived, and saw his assets diminish by about $110,000.

Two of the three judges who heard the case in appeal held that the Charter protects the elderly against all forms of exploitation, physical, psychological, social and moral, regardless of whether or not the person consents to the abusive acts. They found that, during the relationship, the defendant's faculties were diminished due to Alzheimer's and ordered the waitress to pay damages in excess of $66,000.

Consequently, where there is a significant imbalance between the vulnerable person and the other person resulting in disastrous consequences to the vulnerable party and benefit to the other, damages will be awarded to the victim.