Donna Rideout First PLAINTIFF And: Baie View Manor Ltd. Second PLAINTIFF And: Central Regional Health v. Community Services Board, 2018 NLSC 89

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Rideout v. Central Regional Health and Community Services Board , 2018 NLSC 89 Date : April 20, 2018 Docket : 200304T0400 Between: Donna Rideout First PLAINTIFF And: Baie View Manor Ltd. Second PLAINTIFF And: Central Regional Health and Community Services Board First DEFENDANT And: Sandra Dingle Second DEFENDANT And: Marilyn King Third DEFENDANT Before: Justice David F. Hurley Place of Hearing: Corner Brook, Newfoundland and Labrador

Summary:

The Plaintiffs, operators of a personal care seniors’ facility, commenced an action against Central Health, the homes’ regulator and two senior employees, relating to a hold placed on admissions for reasons relating to fire and life safety. As the action taken was justified, the claim was dismissed. Appearances: Dean A. Porter Appearing on behalf of the Plaintiffs Paul M. McDonald Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: N.A.P.E. v. Carbonear General Hospital (1978), 50 Nfld. & P.E.I.R. 65 , 87 D.L.R. (3d) (Nfld.

S.C. (T.D.)) STATUTES CONSIDERED: Personal Care Home Regulations , N.L.R. 15/01; Health and Community Services Act , S.N.L. 1995 c. P- 37.1; Newfoundland Regulation , N.L.R. 47/98 ( Central Regional Health and Community Services Board Order , O.C. 98-113); Fire Prevention Act , R.S.N. 1990, c. F-11; Public Service Collective Bargaining Act , R.S.N.L. 1990, c.

P-42 REASONS FOR JUDGMENT Hurley, J. : INTRODUCTION [ 1 ] This action by the Plaintiffs, the operators of a personal care home known as Baie View Manor in the Town of Baie Verte, essentially relates to a “freeze” placed on new admissions to that seniors’ facility by the First Defendant, the Central Regional Health and Community Services Board (“Central Health”) commencing October 2, 2001.

The Second Defendant, Sandra Dingle and the Third Defendant, Marilyn King were joined as parties for their alleged involvement in the placing of restrictions on admissions to Baie View Manor. [ 2 ] Before reviewing the basis of the claim, it may be helpful to provide some background of the parties in this litigation. the plaintiffs – donna rideout – baie view manor ltd. [ 3 ] Baie View Manor, as a personal care home for seniors, commenced operations as an unincorporated business in 1990. Baie View Manor Ltd. was incorporated December 1997.

The Directors were Donna Rideout and her mother, Pearl Bailey who owned the building through Bailey Holdings Ltd. Ms. Bailey was not involved in the day-to-day running of the home. [ 4 ] On August 16, 1991, Ms. Rideout was notified by the Welfare Institutions Licencing and Inspection Authority that she was approved for licencing to operate a 20 bed non-subsidized personal care home. An additional 10 bed occupancy was approved around 1994. [ 5 ] In 1997, Ms. Rideout and Ms. Bailey decided to extend the second floor over the patio for possible use as a private apartment. Prior to construction, Ms.

Rideout was advised by William Pippy, a design technician with the Department of Services and Lands of the fire and life safety requirements for the proposed extension. Construction commenced but the extension was not completed for a number of years. [ 6 ] Dean Rideout is the spouse of Donna Rideout. Although he was not a licenced operator of Baie View Manor, he dealt with inspectors and others relating to the physical structure of the home. Therefore his name appears on various correspondence reviewed by the Court.

The First defendant, the central regional health and community services board [ 7 ] On June 2, 2001 new Personal Care Home Regulations , N.L.R. 15/01 (hereinafter referred to as the “ 2001 Regulations ”) came into force under the Health and Community Services Act , S.N.L. 1995 c. P-37.1. Personal care homes throughout the Province

would fall under the responsibility of a regional board in the area in which the personal care home is located. Under the 2001 Regulations , Baie View Manor operated under a licence from Central Health. [ 8 ] Previously, in 1998 Central Health was established as a statutory corporation pursuant to Order in Council 98-113 (hereinafter referred to as the “ 1998 Regulations ”). Membership in Central Health is restricted to not more than 15 persons appointed by the Minister who serve without remuneration.

An employee of Central Health cannot serve as a voting board member. [ 9 ] As will be apparent later, one of the main areas of contention will be the role of Central Health as a body corporate as opposed to the role of the members of the board who essentially act as the board of directors of the corporation. second defendant – sandra dingle [ 10 ] Sandra Dingle, at times relevant to these proceedings, was the Director of Assessments and Placement assigned to Central Health.

In that capacity, she was responsible for the monitoring, implementation and evolution of the assessment and placement process relating to personal care homes within the Central Region. [ 11 ] The assessment involved the review, evaluation and discovery of peoples’ needs in the system and their placement was the result of the assessment. Her duties also involved their placement in private homes and the determination of the level of support needed if this type of placement was appropriate. [ 12 ] Ms.

Dingle was also involved in the licencing and re-licencing of personal care homes as well as the monitoring of these licences. [ 13 ] Ms. Dingle reported to Mr. Dennis Brothers, the Associate Executive Director of Community Support Services; he reported to Mr. Neil Ludlow, the Chief Executive Officer of Community Support Services. She had 22 persons reporting directly to her, including social workers, financial assessors, a dietician and clerical staff.

There were approximately 60 nursing staff and other professionals affiliated with her role throughout the region. [ 14 ] Her obligations would involve interacting with Government Services and Lands, the Office of the Fire Commissioner, the Personal Care Home Association and generally dealing with the Department of Health and Community Services. The third defendant – marilyn king [ 15 ] On June 1, 2001 Ms. King was appointed by Central Health to the full-time temporary positon of Coordinator of Personal Care Homes which she held until December 31 of that year. Ms. King reported to Ms.

Dingle who advised all personal home care operators in the Central Region that: “Marilyn will be working with me over the next several months to initiate a smooth transition to a regulatory process with the introduction of the personal care home regulations.” [ 16 ] Ms. King, a registered nurse, spent the initial years of her profession in a hospital setting mainly in the emergency and critical care departments.

Subsequently, for a significant number of years she worked in the home care field including being employed as a continuing care coordinator which involved visits to personal care homes on a daily basis. [ 17 ] Ms. King commenced her duties with Central Health by reviewing the operations of each home with Ms.

Dingle and then attended homes in the region to meet the operators. [ 18 ] With respect to Baie View Manor, she was aware of the outstanding deficiencies in the area of fire and life safety and the failure of the operators to follow the directions of the inspector of February 14, 2001 which were to be carried out by March 14, 2001. background [ 19 ] As stated, the Government in June, 2001 introduced new regulations governing personal care homes. A Policy Directive Manual Governing Personal Care Homes (the “Policy Directive Manual”) was distributed to the operators of all personal care homes, including to Ms.

Rideout at a meeting with Ms. Dingle and Mr. Brothers at Baie View Manor. The Policy Directive Manual is a comprehensive document consisting of 13 sections and 107 pages, prepared by senior staff of the Department of Health and Community Services in anticipation of personal care homes coming under the authority of regional boards. The Policy Directive Manual outlined various policies and standards including licencing, resident care, monitoring processes and staffing.

By 2001, the Policy Directive Manual was subject to revision from time to time to reflect changes to standards and operations, and for that reason the document was referred to as being a draft. The Department of Health and Community Services and Central Health took the position that the draft of the Policy Directive Manual was operative at that particular time.

Each draft is more appropriately referred to a revision as the Policy Directive Manual became effective as revised from time to time. [ 20 ] By way of meetings and written directives, various operators were reminded that in many situations their licences were issued “with conditions” with the expectation that certain conditions and standards would be rectified within a specified period of time, failing which the operators could be subject to having a hold on admissions, a downgrading of their licence or legal actions. [ 21 ] Prior to the 2001 Regulations coming into force, an inspection was carried out of Baie View Manor on February 14, 2001 by Raymond Mills, an inspector with Government Service and Lands.

He prepared a Condition Report relating to fire and life safety. The report listed five deficiencies, which were directed to be completed by March 14, 2001, specifically: (

i) Electrical Room – not to be used for storage; repair ceiling to maintain proper fire rating; (ii) Install handrails in hallways and ramps to National Building Code Standards; (iii) Upstairs Apartment (Extension)

(

a) not completed (

b) too much storage (

c) extend fire alarm system to this area to include pull station and bell (

d) provide fire extinguisher to the area (iv) Stairway to be completed - to be fire rated and not to be used for storage; (

v) Remove item from hallway. [ 22 ] Ms. Rideout took issue with some of the deficiencies raised in the Condition Report. With respect to the requirement that the fire alarm system be equipped with a pull station and bell in the unfinished apartment, Ms. Rideout testified that this was not necessary as the apartment was not used and that the existing system was sufficient. Ms. Rideout wanted the Fire Commissioner to confirm that the requirements in the Condition Report were necessary as she had a “history” with Mr. Mills. In her opinion, Mr.

Mills in the past had directed her to install equipment that was unnecessary. [ 23 ] Later, in her evidence, Ms. Rideout indicated that she was opposed to attaching railing to the walls as directed by the inspector. In her opinion, these rails are “germ spreaders” and are unsanitary.

As well, the presence of rails would detract from the “home-like” atmosphere, as Central Health, she said, was attempting to turn the home into an institution. [ 24 ] At Baie View Manor’s annual review on June 11, 2001, it was noted that the deficiencies set out in the February 14, 2001 Condition Report were not rectified as documented by Mr. Mills in his report on June 7, 2001. [ 25 ] On July 20, 2001, Ms. Rideout was issued a licence with conditions as the result of the annual review of June 11, 2001.

The licence would be valid for a period of 90 days effective July 1, 2001 with all deficiencies to be rectified to meet current legislation including fire and life safety features ( Fire Prevention Act , R.S.N. 1990, c. F-11), environmental health issues and directions from the Fire Commissioner’s Office. [ 26 ] On October 2, 2001 following a visit by Ms. King a day earlier, Ms. King and Ms. Dingle advised Ms. Rideout that effective September 30, 2001, her licence “with conditions” to operate a Level I personal care home had expired as the conditions outlined in the licence had not been met. Therefore, Ms.

Rideout was advised that there was a “freeze” on all admissions. According to Ms. King, in addition to the outstanding matters listed in the Condition Report of February 14, 2001 including the failure to extend the fire alarm system to the extension, the area was being used to store in excess of 100 cartons of adult diapers and a number of boxes of paper towels. [ 27 ] The letter of October 2, 2001 was generated after Ms. King’s visit to Baie View Manor on October 1, 2001 and communicated her observations to Ms. Dingle, who in turn consulted Mr. Brothers.

The hold on admissions reflected the view that the situation presented a serious fire risk. Ms. Dingle and Ms. King were optimistic that the hold on new admissions would bring about a timely response from Ms. Rideout, but this did not occur. [ 28 ] On October 14, 2001, Ray Mills undertook a site visit and completed a Condition Report. He noted that the handrails were 70% completed. A previous report directed completion by March 15, 2001. As well, the fire alarm system was not fully extended to the upstairs apartment as directed by an inspector on August 18, 1997.

Other fire and life safety features and building code requirements were listed. [ 29 ] On December 2, 2001, Ray Mills advised the Office of the Fire Commissioner that Dean Rideout had completed the outstanding deficiencies. This information supplied by Dean Rideout was not correct. [ 30 ] Ms. Dingle in her evidence reviewed a handwritten note concerning a call with Ms. Rideout on January 10, 2002, wherein reference is made to the Fire Commissioner’s scheduled visit of December 18, 2001 being cancelled by Ms. Rideout. Another visit was also cancelled. Ms.

Rideout denied that she was responsible for any cancellation. In view of the passage of time, Ms. Dingle could not recall the details. In the circumstances, I accept Ms. Rideout’s denial. [ 31 ] Also in the notes of January 10, 2002, Ms. Dingle confirmed that she was directed by the Inspector, Raymond Mills and by Barry Wilkins, Program Coordinator Government Services Center not to lift the hold on admissions until the inspections were completed. [ 32 ] On January 23, 2002, Raymond Mills advised Ms.

Dingle that Dean Rideout confirmed that Baie View Manor had not put into place the fire rating material in the new construction area (the unfinished upstairs apartment). [ 33 ] On February 2, 2002 Ms. Dingle noted that she spoke with Linus Tremblett of the Fire Commissioner’s Office on January 31, 2002 concerning his inspection of the Baie View Manor on January 20, 2002. In a verbal report he expressed concern with the storage of supplies upstairs and the lack of a proper fire alarm mechanism in the area. [ 34 ] The Rideouts on February 4, 2002, were notified by Ms.

Dingle that their licence to operate a personal care home was extended from September 29, 2001 to February 28, 2002 with conditions, including the continuation of the freeze on admissions pending the report from the Fire Commissioner’s Office and a written acknowledgment that the items listed in the Fire and Life Safety Report from October 15, 2001 have been completed. As well, all conditions set out in the licence of July 20, 2001 were to be rectified. [ 35 ] Around this time, Ms. Rideout and her spouse Dean Rideout retained legal counsel. In correspondence of February 15, 2002

their solicitors indicated that their retention was in relation to the freeze which had been placed on all admissions to the Baie View Manor. A question was raised concerning the authority of inspectors to recommend or to effect admission freezes. [ 36 ] In subsequent correspondence, the Rideout’s solicitors outlined their position that the decision to place a freeze or hold on admissions required the approval of the members of the board. Although the term is not used in the 1998 Regulations , the members of the board appointed by the Minister essentially constitute its board of directors.

As previously indicated, members of the board are volunteers and cannot be employees of the regional board. [ 37 ] Further correspondence was exchanged between Central Health and the Rideout’s solicitors. However, Central Health provided its position on the issue, which it maintains in these proceedings. In a reply dated January 23, 2002, Dennis Brothers, the Assistant Executive Director, Community Support Services stated: Your

interpretation of the Regulations indicate that you feel this decision was to be made by the Board of Directors. Our

interpretation is that the authority to make such decision is vested in designated employees of the Board. Additionally, the Regulations stipulate that the Minister may approve/adopt policies with respect to standards. In fact, policy to address non-compliance issues are outlined in the Policy Manual Governing Personal Care Homes.

Such policy is carried out through designated staff. [ 38 ] Subsequent to the inspection by an officer of the Office of the Fire Commissioner on January 29, 2002 but prior to the release of his report, the Fire Commissioner consented to the admission of two residents to Baie View Manor while otherwise keeping the hold on admissions in place. [ 39 ] Linus Tremblett, a fire protection officer issued his report on April 8, 2002, in which six building and fire code discrepancies were found.

A seventh matter related to the installation of an automatic fire sprinkler system for which a previous accommodation had been made. [ 40 ] On April 16, 2002 Ms. Dingle advised the Rideouts that after discussion with the Fire Commissioner, the freeze on admissions was being lifted “on good faith of work progressing”. [ 41 ] Notwithstanding that the freeze on admissions was being lifted, Ms. Rideout appealed to the Minister on the directives issued by the Office of the Fire Commissioner in its report April 8, 2002.

The appeal was initiated by letter dated April 28, 2002. [ 42 ] The appeal to the Minister was responded to by the Fire Commissioner in a report dated October 8, 2002. In his response, the Commissioner, Mr. Frederick Hollett confirmed that the original inspection of January 29, 2002 was carried out upon the request of the Department of Health and Community Services and the Department of Government Services and Lands. Again, Mr.

Hollett lists six deficiencies and a seventh being the lack of a sprinkler system which had been previously dealt with. [ 43 ] Also in his report, the Fire Commissioner referred to the nature of personal care homes and the importance of fire prevention and detection to their vulnerable residents. He stated: As part of an overall review of fire protection in personal care homes, I have determined that fires in these occupancies in particular, typically can be quite tragic. The major contributing factors for deaths and injuries in these occupancies are (

A) the limited physical or mental conditions of the occupants due to age or other conditions and (

B) the minimum staffing levels typically maintained in combination with minimum training levels and response capability. [ 44 ] Ms. Rideout told the Court that she also disagreed with the Fire Commissioner’s responses to her appeal. [ 45 ] In her evidence, Ms.

Rideout pointed out that as Baie View Manor is licenced as a Level I facility, it is unnecessary to require conditions and standards which are appropriate for residents who have advanced disabilities requiring a higher level of care. [ 46 ] However, the documents reviewed in these proceedings indicate that at times Baie View Manor would have residents, if only on a temporary basis, at Level II and Level III. At a liaison meeting of April 30, 2002 reference was made to Resident C about whom it was stated that her “condition is deteriorating mentally and physically.

She is on the waitlist for placement at Baie Verte Chronic Care and Valley Vista”. Resident G was noted to be on the waitlist for Level III placement at Baie Verte Chronic Care. [ 47 ] On May 22, 2003, Ms. Dingle faxed correspondence to the Rideouts requesting a status report on the issues contained in the Fire Commissioner’s letters of April 8, 2002 and October 6, 2002. The items were to be completed by April 2003.

The update was then requested by June 13, 2003. [ 48 ] On June 13, 2003, Dean Rideout advised that all matters outstanding as addressed by the Fire Commissioner were not completed. [ 49 ] However, as of December 1, 2003, while the Office of the Fire Commissioner has completed all inspections, one report was still outstanding relating to the supply of fire extinguishers. According to Ms.

Dingle, Government Services indicated that the licence issue could not be finalized until the report was forthcoming. [ 50 ] On January 6, 2004, the Office of the Fire Commissioner advised Dean Rideout in writing that the issues required to be rectified including those pertaining to fire and life safety were not new and were directed in 1997.

The Office of the Fire Commissioner requested that a certain item be completed within 30 days while the remaining items be subject to a realistic work schedule, failing which the Fire Commissioner could not recommend that additional residents be placed in Baie View Manor. [ 51 ] On June 10, 2004 Donna and Dean Rideout left the Province and were no longer involved with operating Baie View Manor. The home was then overseen by her sister, Judy Loveman, and brother-in-law Donald Loveman. [ 52 ] On June 30, 2004, the Office of the Fire Commissioner consented to the issuance of a conditional licence until March 2005.

The lifting of the freeze as advised on April 16, 2002 continued. issues (

i) Whether the Defendants are liable to the Plaintiffs in negligence? (ii) If so, what are the damages caused to the Plaintiffs? consideration Issue of Jurisdiction [ 53 ] The Plaintiffs take the initial position that the licence could have been validly renewed on September 30, 2001, with a freeze on admissions, if properly done by Central Health after a duty constituted meeting by members of the board.

According to the Plaintiffs, the Defendants committed a “jurisdictional” error in having this matter decided by employees of Central Health or its inspectors, and that the error constituted negligence. [ 54 ] I am rejecting this aspect of the Plaintiffs’ argument. [ 55 ] Regulation 7, 8 and 9 of the 2001 Regulations deal with the details of licences to operate a personal care home and the role of the regional board relating to licencing.

There is no requirement that licencing be subject to review by the members of the board which carries the role similar to that as a board of directors. [ 56 ] The 2001 Regulations provide that applications for a licence to operate a personal care home are to be submitted to a Government Service Center which has the sole authority to accept or dismiss these applications. Applications must show compliance with national building, fire and safety and electrical codes. Inspectors with the Government Service Centers may inspect the premises and property of the personal care home.

The 2001 Regulations further provide that the board may issue a licence subject to the terms and conditions that it considers advisable. [ 57 ] Some confusion appears to have arisen concerning the role of Central Health carrying on its day-to-day activities through its staff and employees and its role through the membership of the board who are not employees. This, however, is clarified by Regulation 2 of the 1998 Regulations , which states: 2.

There shall be established as a statutory corporation a board under the name of the Central Regional Health and Community Services Board (the “board”). [ 58 ] Therefore, a general reference to the “board” or “regional board” in the Regulations includes its role as an entity carrying out its mandate through its staff. By way of example, reference should be made to 8(1) of the 1998 Regulations : 8.

(1) Upon receipt of information forwarded to it under subsection 7(2), a regional board shall review that information with respect to personal care provision and staffing for compliance with the Act, another Act of the province, these regulations and required standards for personal care and staffing and for that purpose may interview the applicant and other persons relevant to the application for a licence or renewal of a licence. [ 59 ] It would seem obvious that the procedure carried out in the above cited Regulation would be entrusted to designated staff, who could act with the involvement of other professional employees.

On the other hand, reference in the Regulations to the board as a governing body is recognized in the appropriate context. Regulation 12 of the 1998 Regulations by way of example states: 12. The board may elect from among its members one person to serve as vice-chairperson for the same term as the chairperson. [ 60 ] The Plaintiffs relied on a decision in N.A.P.E. v. v. Carbonear General Hospital (1978), 50 Nfld. & P.E.I.R. 65 , 87 D.L.R. (3d) (Nfld. S.C. (T.D.)), in which this Court reviewed a provision in the Public Service Collective Bargaining Act , R.S.N.L. 1990, c.

P-42 whereby the Labour Relations Board was authorized to classify certain employees of the hospital as essential employees and therefore unable to strike.

The union disputed the determination of the classification of essential employees on the basis that it was made by the public service panel of the board and not by the board itself. [ 61 ] The Court held that where a board is entrusted with the performance of a judicial function it cannot delegate that function to a panel unless authorized by statute. [ 62 ] In this case before the Court, there is absolutely no language to indicate that there is a requirement that licencing be subject to intervention by the members of the board which must hold a vote on its issuance or modification.

Therefore, the Carbonear Hospital decision is not applicable in this case. [ 63 ] The position taken by Central Health in paragraph 37 of this decision is correct. This aspect of the appeal is dismissed. Authority to Place a Freeze on Admissions [ 64 ] In the alternative, the Plaintiffs also take issue with the authority of the Defendants to place a hold or “freeze” on admission to Baie View Manor, whether the decision is made by the members of the board ( the board of directors) or by Central Health as a corporation through its staff and employees.

This issue was not pleaded in the Amended Statement of Claim or dealt with in the Plaintiffs’ trial brief. However, counsel raised the matter in questioning of witnesses and in oral argument. [ 65 ] The uncontradicted evidence at trial established that inspections carried out by inspectors with the Department of Government

Services and Lands established that Baie View Manor had significant fire and life safety issues, and other deficiencies which remained outstanding for a prolonged period of time.

In the absence of cooperation, the Government Services Inspector contacted the Office of the Fire Commissioner which confirmed the need to have these important fire safety issues addressed. [ 66 ] The reports provided by the Office of the Fire Commissioner confirmed the issues raised by the Government Services inspector had been outstanding as far back as 1997. [ 67 ] As indicated, with the transfer of authority to the regional boards, operators of personal care homes were notified that in many cases licences were issued “with conditions” with the understanding that these conditions would have to be satisfied within a certain period of time, and that failure to do so, operators would be subject to having a hold on admissions, a downgrading of their licences or legal action. [ 68 ] The Policy Directive Manual Governing Personal Care Homes contains protocols regarding non-compliance of standards outlined in the Policy Directive Manual.

For example: 4-40 Noncompliance Protocols 4. Imposing Penalties. A penalty may be imposed in addition to a written order. These penalties may include, for example, a suspension of admissions while the violation is being remedied, withholding subsidy to the home etc. A penalty will be determined by the Regional Board for noncompliance activities. [ 69 ]

Part I of this

section in the Policy Directive Manual states: 4-40 1. … If all reasonable steps are not taken to remedy the issue; the inspector can implement a series of levels of enforcement options. The inspector can proceed directly to any one of these options if the offence is clearly blatant… [ 70 ] The provisions set out in the Policy Directive Manual must be read in the context of Regulation 8(4) of the 2001 Regulations which states that a licence may be issued subject to conditions determined by the regional board and in accordance with the standards required by the Department of Health and Community Services.

Section 1, Authorities in the Policy Directive Manual confirms its reliance on the mandate set out in the Regulations under the Health and Community Services Act . I am satisfied that the Policy Directive Manual sets out standards determined by the Department and are therefore sanctioned by the Regulations . [ 71 ] In addition to the authority to place a freeze on admissions, the Defendants as well as Government Services inspectors and the Fire Commissioner, would have a duty to take reasonable steps when there is harm or potential harm to human life. [ 72 ] On October 2, 2001 Ms.

King visited Baie View Manor knowing that the facility was in breach of fire and life safety measures which were ordered to be rectified by March 14, 2001 and earlier back to 1997. The visit also disclosed that the upstairs extension was unfinished and lacked fire proofing material and was not properly connected to the fire alarm system. The space was now being used for the storage of approximately 100 cartons of adult diapers and a number of cartons of paper towels, both of a highly flammable material. Ms. Rideout confirmed that at the time of Ms.

King’s visit, the upstairs area was also being used to repair furniture. [ 73 ] Upon her return to Gander, she discussed the matter with Ms. Dingle who in turn advised Mr. Brothers of the situation. While there was no direct evidence, Ms. Dingle assumed that Mr. Brothers would have discussed the hold of admissions with the CEO, Neal Ludlow.

In addition to the hold on admissions, arrangements were made to remove the flammable materials from the home. [ 74 ] After these actions were taken, the problems at Baie View Manor came under the control of Government Services inspectors and the Fire Commissioner. [ 75 ] The intent of the freeze on admissions was to bring about immediate compliance of the outstanding deficiencies mainly relating to fire and life safety. However, the employees and managers of Central Health and the inspectors with Government Services and the Fire Commissioner’s office underestimated the resolve and determination of Ms.

Rideout to sustain her opinions even when the safety of the residents of Baie View Manor was at stake. [ 76 ] I am therefore finding that the freeze on admissions at Baie View Manor was provided under the applicable regulations and otherwise justified under the Defendants’ duty to prevent bodily injury and death in relation to the residents. [ 77 ] This aspect of the claim is also dismissed. conclusion - liability [ 78 ] In the Amended Statement of Claim, the Plaintiffs allege that the Defendants were negligent in their failure to promptly request that the Provincial Fire Commissioner conduct any necessary inspections so that action might be taken by the Plaintiffs.

However, the matter was not specifically pursued in the Plaintiffs’ evidence, their trial brief or their oral submissions.

[ 79 ] The evidence disclosed that Ms. Dingle and Ms. King were quite active in involving Government Services to arrange for an inspection by the Office of the Fire Commissioner and then requesting a report following the January 29, 2002 inspection. Both Ms. Dingle and Ms. King visited the Office of the Fire Commissioner in Grand Falls-Windsor on separate occasions to request a prompt report. As well, Ms. Dingle arranged to have Mr. Brothers and Mr.

Ludlow intervene with the Fire Commissioner’s Office to provide a report. [ 80 ] Therefore, this claim against the Defendants is dismissed. damages [ 81 ] While the claim has been dismissed against all the Defendants, it is appropriate to comment on the damages claim by the Plaintiff. [ 82 ] First of all, I have found that the action taken by Central Health as confirmed by the directions of the inspectors for Government Services and the Office of the Fire Commissioner was justified under the Regulations .

As well, officials with these authorities had a general duty to act to prevent injury and loss of life in addition to enforcing the applicable Regulations . This duty is also confirmed as a right in

section 4-40 of the Policy Directive Manual. [ 83 ] Once it became apparent that the operators of Baie View Manor did not intend to cooperate after the Notice of October 2, 2001, the freeze or hold on admissions was confirmed and extended by Government Service Inspectors and the Office of the Fire Commissioner, both agencies independent of Central Health and its staff.

The Plaintiffs have not suggested that the appointed members of Central Health could overrule the Government Service Inspectors or the Fire Commissioner. [ 84 ] More importantly, the evidence does not establish that the freeze on admissions caused the damages claimed by the Plaintiffs. Three witnesses were called by the Plaintiffs, namely, Donna Rideout, Dean Rideout and Nikki Robar, C.A. Mr. Rideout and Ms. Rideout did not provide evidence outlining the reason for the decrease in revenue for the years 2002 – 2008. In fact, Ms.

Rideout could not name any potential resident who was denied admission for the six months commencing October 2, 2001. [ 85 ] The evidence of Donna Rideout and Dean Rideout related mainly to the ongoing dispute between the staff and employees of Central Health and themselves. After the Rideouts left the Province on June 10, 2004, the Court was not presented with any evidence relating to the operations and management of Baie View Manor. The home was then managed by Ms. Rideout’s sister and brother-in- law who had no experience in operating a personal care home. [ 86 ] The evidence of Ms.

Robar does not establish that the freeze put in place on October 2 2001 for approximately six months was the cause of business losses until 2008. In fact, it appears that in 2001, Baie View Manor commenced to experience a decline in occupancy before the hold on admissions. In 2000, the average occupancy rate was 91% while in 2001 the rate decreased to 75% with no monthly rate going beyond 80%. In June and July 2001, the occupancy rate was 70% for each month, while the rate was 67% in August and 73% in September.

Surprisingly, in October 2001 the first month of the freeze, there was a rate increase to 80% while in November and December, the rate slipped to the pre-October 2 occupancy rate of 70%. [ 87 ] Ms. Robar’s evidence consisted of quantifying the loss contribution margins to the company for a specific time period. As she had no knowledge of the company’s operations and management both before June 10, 2004 and afterwards, her calculation of the loss is merely an assumption the freeze caused a decrease in profits leaving the evidence to be established by others.

That evidence was not forthcoming. [ 88 ] In her evidence, Ms. Dingle confirmed that in the Town of Baie Verte and the surrounding area, there is a fairly limited need for beds at personal care home facilities due to a relative small population in the area. This consideration was stated by Ms. Robar in paragraph 24 of the Background of her report: 24. We understand from our discussion with Ms.

Rideout that potential residents for the Manor are referred by the Central Board and primarily come from the Town of Baie Verte and the surrounding communities. [ 89 ] As there was evidence presented at trial that a new personal care home opened close to Baie Verte in the fall of 2001 (September/October) Ms. Robar conceded that the decrease in occupancy in Baie View Manor could have been subject to market forces and competition.

The opening of Hamlyn Manor was the third personal care home in the Baie Verte area. [ 90 ] The effect of market forces and competition during the period under review was again evident in the fall of October 2005 when Hamlyn Manor closed. Prior to the closing of Hamlyn Manor, the occupancy rate at Baie View Manor was 33%. According to Ms. Rideout, upon the transfer of eight residents from Hamlyn Manor the occupancy rate returned to the pre-freeze level. In fact by September 2006, the rate gradually increased to 80% and fluctuated after that.

Six months later the rate decreased to 53%. [ 91 ] Quite simply, there are a variety of reasons causing the profitability of a business to vary over a period of time. Bad management together with imprudent and unwise decisions will often affect its performance. From February 2001 to June 2004 which was reviewed in these proceedings, Ms. Rideout’s management style was not in the best interests of the personal care home as a business. Back to February 2001, Government Services the controlling authority, carried out inspections requiring that significant fire, life safety and other issues had to be addressed.

Government Services then involved the Office of the Fire Commissioner to conduct inspections which identified the need to deal with these important issues. The uncompromising reaction taken by Ms. Rideout, if indicative by her manner of operating and managing, cannot be dismissed as a cause for a reduction in the profitability of the home. [ 92 ] The Plaintiffs have also failed to prove that the six month hold on admissions would affect the occupancy rate at Baie View Manor after the restriction was lifted. A hold on admissions, for example, may be caused by a full occupancy at the home.

Such a hold on admissions and those for other operationial reasons would not detract from the reputation of the facility. However, if it is known to potential residents and their families that the hold on admissions relate to fire and life safety, the reason for the freeze on admissions would be of primary concern not the temporary freeze itself. The Plaintiffs have never suggested that Central Health, the Government

Services inspectors and the Fire Commissioners were acting improperly when issuing orders to rectify continuing problems relating to building codes and safety. disposition [ 93 ] It is therefore ordered: 1. The claim by the Plaintiffs is dismissed. 2. The Defendants shall have their costs under Column 3. _____________________________ David F. Hurley Justice