2019 QCCQ 1792, 2019 QCCQ 1792

Massand c. CLSC Verdun du CIUSSS du Centre-Sud-de-l'Île-de-Montréal 2019 QCCQ 1792 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-156998-173 DATE: March 22, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ DEEPAK MASSAND Plaintiff v.

CLSC VERDUN DU CIUSSS DU CENTRE-SUD-DE-L’ÎLE-DE-MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Deepak Massand claims $15,000 in damages from the CLSC Verdun du CIUSSS du Centre-Sud-de-L’Île-de-Montréal (” CLSC ”) for the violation of his dignity, integrity, and security of the person. [ 2 ] Mr. Massand argues that the services and care he received through the CSLC were poorly performed. [ 3 ] The CLSC contests the claim and asserts that it gave Mr.

Massand the services and care required by his state of health. [ 4 ] With respect to the domestic help services, the CLSC adds that Mr. Massand’s behaviour is the source of the problems that he complains of and that the damages he alleges indirectly arise from the facts and actions of the CLSC. ISSUES [ 5 ] (

a) Did the plaintiff prove the poor quality of the services and care provided by the CLSC? (

b) If so, did the non-performance of the services violate his dignity, integrity, and the security of his person, and, if so, to what amount is he entitled? BACKGROUND [ 6 ] Mr. Massand is a patient known to the CLSC. His health condition is complex and requires daily services and care. [ 7 ] The CLSC is a health and social services establishment responsible for offering the homecare services that Mr. Massand receives. [1] [ 8 ] Between September 23 and November 1, 2016, Mr.

Massand was hospitalized at the Montreal Jewish General where he underwent spinal decompression surgery. [ 9 ] On November 1, 2016, he was discharged and continued his rehabilitation at the Villa Medica rehabilitation hospital. [ 10 ] In January 2017, after considering living in a public insitution, Mr. Massand expressed the wish to move back into his home. [ 11 ] This plan required his home to be adapted to his health condition and for the domestic help program to be reestablished. [ 12 ] On January 18, 2017, when he left Villa Medica, Mr.

Massand was informed [2] that the recommendations of the occupational therapist, Angela Kim, had yet to be made and that the domestic help service could not immediately be implemented. [ 13 ] Some of Ms. Kim’s recommendations were addressed to the CLSC. They were the following: [3] • Daily help for getting dressed • Daily help for getting washed • ‘Service à reprendre d’aide au ménage 2x/mois et suggestion faite chaque semaine.’ [ 14 ] Mr.

Massand states that these services were not properly provided to him. [ 15 ] Specifically, he explains that he did not receive the home cleaning services, in terms of either quantity or quality. In his written

Application, he complains of: 4.a. Piles of dirty clothes litter the ground; 4.b. Ventilation of the room is insufficient; 4.c. Linens are not changed regularly; [ 16 ] As for daily healthcare for hygiene and help with dressing, Massand formulates many grievances: multiple workers, deficient knowledge of his needs,

schedule not respected, telephone calls at unexpected times, and so on. [ 17 ] Despite the requests of his lawyer [4] for the CLSC to reassess the services and increase them, he states that the situation has not improved. [ 18 ] On November 1, 2017, Massand filed his claim for damages in the amount of $15,000 before the small claims division.

APPLICABLE LAW [ 19 ] In civil matters, it is incumbent upon the litigant to prove the existence, modification or extinction of a right. [5] [ 20 ] The rules respecting the burden of proof impose the obligation to convince, which is also characterized as a burden of persuasion.

Therefore, the obligation is to adduce into evidence information of a quantity and quality that will convince the Court during the trial of the allegations made. [6] [ 21 ] In this case, the plaintiff’s action should be reviewed in light of the Act respecting health services and social services (“ AHSSS ”) which provides the Court with the legal basis on which it must ground its ruling. [ 22 ] Specifically, ss. 3 and 5 of the Act will be a useful basis for our remarks: 3.

For the application of this Act, the following guidelines shall guide the management and provision of health services and social services: (1) the person requiring services is the reason for the very existence of those services; (2) respect for the user and recognition of his rights and freedoms must inspire every act performed in his regard; (3) the user must be treated, in every intervention, with courtesy, fairness and understanding, and with respect for his dignity, autonomy, needs and safety; (4) the user must, as far as possible, play an active role in the care and services which concern him; (5) the user must be encouraged, through the provision of adequate information, to use services in a judicious manner. 5.

Every person is entitled to receive, with continuity and in a personalized and safe manner, health services and social services which are scientifically, humanly and socially appropriate. [ 23 ] These provisions establish a person’s absolute right to receive the health services and social services required by his or her state of health and focuses the services on the user. [ 24 ] Let us now discuss the dispute on the basis of these parameters.

Has the plaintiff proved the poor quality of the services and care provided by the CLSC? [ 25 ] The Court will analyze the evidence relating to the two criticisms made by Massand separately. • Insufficient and poor performance of domestic help service [ 26 ] The evidence establishes that the cleaning service was performed by the Maisonnette Sud-Ouest inc. company. (” La Maisonnette ”), a social economy enterprise with which the CLSC has a service agreement. [7] [ 27 ] According to the assessment of the plaintiff’s social services needs, Mr.

Massad was entitled to light cleaning services for three hours every two weeks and deeper cleaning services for thirty hours per year. [ 28 ] The uncontradicted evidence indicates that Mr. Massand did not receive domestic help services after returning home in January 2017. [ 29 ] The nurse, Julie Larocque, chief administrator of the CLSC’s homecare support services, explained why La Maisonnette did not perform the cleaning service at Mr. Massand’s home. [ 30 ] First, she stated that Mr.

Massand knew and understood when he left the Villa Medica that the domestic help service had not yet been implemented. [8] For it to be restored, Mr. Massand had to sign a form entitled “ Demande d’aide financière du Programme d’exonération financière pour les services d’aide domestique" . [ 31 ] This program, she added, would provide financial Mr. Massand with financial assistance in the form of a lower hourly rate for the social economy enterprise providing the services.

[ 32 ] Ms. Larocque recounted that, in 2012, Mr. Massand had signed this form without any problem, [9] but he refused to do so in 2017, thereby delaying resumption of the service. [10] [ 33 ] By relying on the progress notes written in the CLSC file by the social worker Maria Shuepp on March 23 and 30, April 7, and May 5, 12, and 26, 2017, Ms. Larocque showed that Mr. Massand had been made aware of the importance of signing this form and the consequences of his refusal to do so. [11] Despite Ms. Shuepp’s requests, Mr. Massand never signed the form. [ 34 ] Given the situation, continued Ms.

Larocque, the CLSC suggested that Mr. Massand avail himself of the Programme d’allocation directe – chèque emploi-service [12] implemented by the government’s health and social services department, a program that would have allowed him to personally choose a resource person for domestic help. [ 35 ] According to Ms. Larocque, Mr. Massand refused this option also. [ 36 ] Ms. Larocque then stated that, thanks to the efforts of Ms. Shuepp, the RAMQ agreed to re-open Mr.

Massand’s file, despite his refusal to sign Demande d’aide financière du Programme d’exonération financière pour les services d’aide domestique . [ 37 ] Obviously, this effort amounted to nothing, because in her case notes dated May 26, 2017, Ms. Shuepp wrote: [13] Toutefois, M. Massand est toujours pas d’accord. Il ne veut pas de service de la Maisonnette et mentionne vouloir poursuivre auprès de son avocat. Selon Monsieur, il a contacté la RAMQ lui-même et nous dit qu’il va recevoir des services par une autre compagnie, mais il ne peut pas nous donner plus de détails. [ 38 ] Ms.

Larocque completed this portion of her testimony by saying that, since August 1, 2017, La Maisonnette has resumed the services it performs for Mr. Massand, but she conceded that the situation is difficult and Mr. Massand has had many complaints. [ 39 ] It appears that several employees of La Maisonnette no longer want to go to Mr. Massand’s residence, and some have even threatened to quit their job if they are assigned to his home. The employees claim they feel spied on and watched by Mr. Massand’s sister-in-law, while others complain of Mr. Massand’s recalcitrant behaviour. [ 40 ] Ms.

Larocque has made sure that the CLSC regularly tries to smooth out the difficulties between Mr. Massand and La Maisonnette, for example by holding meetings and three-party discussions, but according to Ms. Larocque, Mr. Massand is not very cooperative. [ 41 ] Ultimately, the CLSC is still open to putting the service employment paycheque program in place, as soon as Mr. Massand is ready to use it. [ 42 ] Occupational therapist Valérie Ferland gave testimony similar to Ms. Larocque’s, at least until March 2017, when she left the CLSC. [ 43 ] Because she was Mr.

Massand’s patient navigator between 2015 and 2017, she was a direct witness to his recurring complaints about the quality of La Maisonnette’s services and the many efforts of the CLSC and La Maisonnette to smooth things over. [ 44 ] Although this version of the facts was altogether denied by Mr. Massand, the Court accepts the CLSC’s version. [ 45 ] First, the CLSC’s case notes are contemporaneous and provide guarantees of reliability on which the Court may rely. [ 46 ] Second, the documentary evidence confirms that Mr.

Massand did not sign the application form for financial assistance prepared by La Maisonnette on February 5, 2017, which confirms the testimony of the CLSC representatives about the difficulties experienced with the plaintiff. [ 47 ] Third, the Court saw Mr. Massand testify for over two hours and was able to observe firsthand his inflexibility and low tolerance for frustration. [ 48 ] Finally, the testimony of witnesses Larocque and Ferland, which was sincere, credible and free of any animosity, leads the Court to consider the energy and effort invested to make Mr.

Massand happy and provide him with quality services to be probative. [ 49 ] In this case, the Court reiterates that the CLSC is bound by an obligation of means, not of results. [ 50 ] This means that if the CLSC demonstates, as it did here, that it used the resources at its disposal and did everything that it could to satisfy Mr.

Massand, the Court cannot require more. [ 51 ] Indeed, the Court recalls that the guidelines set out in s. 3 AHSSS encourage users, as far as possible, to play an active role in the care and services which concern them and to use the services in a judicious manner. [ 52 ] Here, clearly, through his position of refusal and his behaviour, Mr. Massand helped create the situation he now decries. Thus, he has no one to blame but himself. [ 53 ] Consequently, the Court is of the view that Mr.

Massand has failed to prove the merits of his legal argument regarding the poor quality of the domestic help services. [ 54 ] Let now consider the second part of his claim. • Poor performance of the hygiene care and help with dressing [ 55 ] Following Ms. Ferland’s reassessment of the plaintiff’s overall functioning at home, the following care was planned: daily

service in the morning to dress the bottom half of the body, put on the corset, and partial hygiene in the bed. [14] [ 56 ] In June 2017, the care was explained and assigned to various family and social assistants (FSA) and nurses. According to the description provided by Mr.

Massand, the former are responsible for hygiene care, that is, two complete washes in the shower (Monday and Thursday mornings) and five partial washes at the sink (Tuesday, Wednesday, and Friday mornings, and Saturday and Sunday evenings). [15] They must also help him to dress and put on his corset and compression socks every weekday morning and evening, except Saturday and Sunday mornings. [ 57 ] The nurses go to Mr. Massand’s home on Saturday and Sunday mornings. [ 58 ] The evidence establishes that Mr. Massand receives all of the services described above.

His dissatisfaction lies elsewhere. [ 59 ] First, he complains that the care is never given by the same FSA. This assortment of personnel means that many of them do not know his environment and his needs. This makes him have to guide and instruct them. This also means that the manner in which the care is given changes every time. In the end, he believes that he does not receive quality care. [ 60 ] Second, he deplores the fact that the FSA do not respect the scheduled time slots. He sees the early or late arrival of the FSA as disrespectful and does not accept being informed of a change in

schedule on the morning of the day, because he is in bed. Because it is difficult for him to move, it is difficult for him to deal with a changing schedule. It is a source of stress for him. [ 61 ] Ms. Larocque admitted that it is impossible for the CLSC to ensure that the same FSA always give Mr. Massand hygiene care and help to dress. [ 62 ] Referring to her document titled Aide à domicile : Offre de services , she added that it indicates that the CLSC may sometimes not be in a position to completely fulfill the service request due to a lack of available resources. [16] [ 63 ] Because it is Mr.

Massand’s file, she makes sure that the same FSA goes on the same day every week. [ 64 ] She claimed to have discussed this with Mr. Massand on several occasions and to have told him that, despite her good intentions, she has to deal with vacations, sick days, and training for her FSA, which sometimes makes it necessary for her to hire agency personnel. [ 65 ] From this perspective and to ensure continuity of care and the quality of the services offered, the CLSC has prepared a reference tool [17] for Mr. Massand’s FSAs. This document, which is constantly evolving, is in Mr.

Massand’s file and is used as a source of information for the FSAs who do not know him. [ 66 ] As for the grievance relating to respecting the time slots, Ms. Larocque pointed out that this is also a recurring problem with Mr. Massand. [ 67 ] Relying on her case notes from August 1, 2017, [18] she stated that Mr.

Massand wants to receive services between 9:15 a.m. and 9:45 a.m. and wishes to be notified the evening before of the time the FSA will arrive. [ 68 ] At the time, she had told him that, while efforts would be made to respect his preferences, no guarantees could be made. [ 69 ] She claimed that the explanation given at the time still stands. She added that the CLSC has nearly 1,875 users who receive domestic help services.

Taking into consideration the priority cases, the particulars of each person, the available resources, and the unknowables, the CLSC cannot, she stated “ garantir les besoins individuels en termes d’horaire ”. [ 70 ] Ultimately, the CLSC cannot require an employee to call his or her clients the night before, on his or her personal time. [ 71 ] In the end, stated Ms. Larocque, Mr. Massand is particularly demanding, to the point that he refused to let an FSA inside his home when she showed up at 9:00 a.m. instead of 9:15 a.m. [19] [ 72 ] Yet again, she noted that Mr.

Massand could obtain care through the service employment paycheque program, but that he does not want to complete the applicaiton. [ 73 ] Confronted with the evidence adduced, the Court notes Mr. Massand’s sincere dissatisfaction with the CLSC, but this is not enough to rule in his favour from a legal standpoint. [ 74 ] Mr. Massand had to show the Court the CLSC’s failure to dispense care. He had to convince the Court that the manner in which this care was provided did not meet the standards of the health network. This evidence is lacking, even non-existent, which leads the Court to find that Mr.

Massand failed to meet his burden of proof. [ 75 ] Considering the Court’s conclusion on the first part of the issue in dispute, an analysis of the damages has become moot. [ 76 ] Consequently, the Court dismisses Mr. Massand’s application, but because of the plaintiff’s nature and vulnerability, the claim will be dismissed without costs. FOR THESE REASONS, the Court: DISMISSES the plaintiff’s action; THE WHOLE without costs.

__________________________________ JO ANN ZAOR, J.C.Q. Date of hearing: February 12, 2019