supneree count or BRITISH cIo:.uMeta ACTION NO: VICTORIA REGISTRY REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA .AS THORNTON ALLEN and PAMELA MARY ALLEN PETITIONERS VANCOUVER ISLAND HEALTH AUTHORITY and REVERA INC. RESPONDENTS PETITION TO THE COURT ON NOTICE TO: Vancouver Island Health Authority clo Mr. Graham Sanderson, Risk Management 1952 Bay Street Victoria, B.C. V8R 1J8 Revera Inc. (?Revera?) c/o Davis LLP 2800 Park Place 666 Burrard Street Vancouver, B.C. V60 2Z7 This proceeding has been started by the Petitioners for the relief set out in Part 1 below. If you intend to respond to this petition, you or your lawyer must file a response to Petition in Form 67 in the above-named registry of this court within the time for response to Petition described below, and Serve on the Petitioners 2 copies of the filed response to petition, and (ii) 2 copies of each filed Affidavit on which you intend to rely at the heanng. Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response. Time for response to petition A response to petition must be filed and served on the Petitioners (8) (0) (Cl) if you were served with the petition anywhere in Canada, within 21 days after that service, If you were served with the petition anywhere in the United States of America, within 35 days after that service, if you were served with the petition anywhere else, within 49 days after that service, or, if the time for response has been set by order of the court, within that time. (1) The address of the registry is: 850 Burdett Avenue, Victoria, BC V8W 1B4 The ADDRESS FOR SERVICE of the clo Jonathan M. Aiyadurai Petitioners is: Johns Southward Glazier Walton 8: Margetts, Barristers and Solicitors, 204 655 Tyee Road, Victoria, BC V9A 6X5 250-381-1181 Fax number address for service: Part1: CLAIM OF THE PETITIONERS ORDERS SOUGHT Orders respecting privacy and disclosure 1. The style of cause of all judgments in this proceeding shall identify the Petitioner Pamela Mary Allen only as and the Petitioner Douglas Thornton Allen only as At the Respondents? expense, the Respondents shall forthwith produce and provide to the Petitioners? counsel all records about the Petitioners that are in the possession or control of the Respondents. -3- At expense, VIHA shall produce and provide to the Petitioners? counsel all video surveillance footage in possession or control recorded on January 5, 2014 in which either or both of the Petitioners appear. While either of the Petitioners is detained by either of the Respondents, the detained Petitioner is granted leave to bring any application for hearing respecting disclosure of records by providing one clear day of notice of such application to the Respondent(s) against whom relief is sought or. alternatively, such other period of notice that this Honourable Court deems just. Order respecting attendance and transport of Petitioners to hearing(s) 5. While either of the Petitioners is detained by either of the Respondents, the detaining Respondents(s), at the request of the detained Petitioner, shall transport that Petitioner to and from all hearings in this proceeding, and that Respondent must arrange the transportation and pay the associated costs. Orders respecting Petitioners? Welt-being while detained 6. 10. The Respondents shall forthwith return the Petitioners? belongings to the Petitioners, including wallet and its contents that are in the possession or control of VIHA. The Petitioner(s) shall be allowed to bathe or shower, with the assistance of the detaining Respondent(s) if necessary, within 24 hours before the commencement of all appearances in this proceeding. While either of the Petitioners are detained by either of the Respondents, the detained Petitioner is granted leave to bring any application for hearing respecting the detained Petitioners well-being in his area of detention by providing one clear day of notice of such application to the detaining Respondent(s) or, alternatively, such other period of notice that this Honourable Court deems just. While either of the Petitioners is detained by either of the Respondents, the detained Petitioner is granted leave to bring any application for hearing seeking daytime leave from detention by providing one clear day of notice of such application to the detaining Respondent(s) or, alternatively, such other period of notice that this Honourable Court deems just. No order made in this proceeding with respect to the timing of notice for bringing applications for hearing shall bar a detained Petitioner from bringing an application for hearing without notice. Orders respecting release of the Petitioners from detention 11. The substantive hearing(s) on the legality of the current detention of the Petitioners may take place within 21 days of service of the Petition on the 12. 13. 14. -4- Respondents and the Petitioners shall give the Respondents at least one clear day notice of the hearing or, alternatively, such other period of notice that this Honourable Court deems just. This Court declares that the Petitioners are discharged under the Mentai Health Act, R.S.B.C. 1996, c. 288 and VIHA shall forthwith issue and deliver a certificate of discharge to the Petitioners(s). The Respondent(s) detaining the Petitioners shall release the Petitioners from their detention and transport the Petitioners, at that Respondent(s) expense, to Petitioners? independent living seniors home at 1070 Southgate Street in Victoria, B.C. This Court declares that VIHA is declared illegally detained the Petitioners from January 5, 2014 until January 29, 2014. Order respecting converting this proceeding into an action 15. The Petitioners are granted leave to commence an action against the Respondents and any other parties by amending this Petition to become a Notice of Civil Claim that complies with the Supreme Court Civil Rules, B.C. Reg 168/2009. Order respecting costs 18. Part 2: The Respondents shall pay the costs of this Petition proceeding on a solicitor- client basis in any event of the cause or, alternatively, costs at Scale or in any event of the cause or, alternatively, on such other basis that this Honourable Court deems just. FACTUAL BASIS Petitioners? background prior to detention by the Respondents? 1. 2. The Petitioners are both 84 years old and are married to each other. In or about December 2013 the Petitioners purchased a strata unit at 1070 Southgate Street in Victoria, B.C. (?Minion House?). Minton House operates as an independent living home for seniors. Minton House provides various amenities and services to its residents including: 24-hour staff with first aid training; Staff at the front desk who monitor residents leaving and entering the premises; Independent living suites; Laundry machines on each floor; A shower in each suite; A full-time housekeeper to providing housekeeping services to clean the residents? floors, carpets, kitchen, bathroom and to change bedding and towel linens in each suite; and One meal per day cooked by a chef. Many of the residents at Minton House elect to contract with outside agencies, including Beacon Community Services and Home Instead, which come to Minton House to provide personal care for patients. While at Minton House the Petitioner PA. had a nurse visit her in her suite multiple times per week to address her leg injury. The Petitioners say that at no time in 2014 have they consented to being detained or treated by either of the Respondents. Detention by VIHA at the Royal Jubilee Hospital 7. 10. 11. 12. 13. The Royal Jubilee Hospital located at 952 Bay Street in Victoria, B.C. (the - ??Hospital'?) is operated by VIHA and its employees, contractors and agents, including doctors and nurses (collectively Staff"). The Petitioners say that they regularly attend church and, after attending church on Sunday, January 5, 2014, they walked to the Hospital to inquire whether VIHA could provide a list of family doctors who were accepting patients. Staff detained the Petitioners on January 5, 2014, despite that the Petitioners communicated that they did not consent to being detained and wished to be released from detention. The Petitioners say that VIHA Staff continued to detain the Petitioners until February 7, 2014, despite that the Petitioners? continued to ask to be released from detention. VIHA Staff administered drugs to the Respondents without the consent of the Petitioners. VIHA Staff confiscated wallet and have failed to return it and its contents to him despite requests for its return. As of the time of filing this Petition, VIHA Staff have still not returned D.A.'s wallet and its contents. On January 29, 2014 and January 31, 2014, first and second medical certificates were issued for each of the Petitioners, purportedly under the Mental Health Act. Transport of Petitioners to James Bay Care Centre for further detention 14February 7, transported the Petitioners to the James Bay Care Centre located at 336 Simcoe Street in Victoria, B.C. and this was done against the Petitioners? will and despite their requests to be released. The James Bay Care Centre is owned by the Respondent Revera and is an institution not selected or approved under the Mental Health Regulations, B.C. Reg. 224/2012 as an ?approved home" (the ?Unapproved Home?), as there are no "approved homes" in British Columbia. The Unapproved Home has the following features: Code-secured elevators and doors that prevent the Petitioners from leaving their floor of the Unapproved Home; No working showers on the floor where the Petitioners are currently detained; Bathing of the Petitioners once per week; No laundry service to allow the Petitioners to wash their only pair of civilian clothes, being those they were wearing when admitted to the Hospital on January 5, 2014; No doctors on site except when called by Revera; A maximum of two registered nurses and at times no registered nurses on site but rather licensed practical nurses and non~nursing staff; No posted copies of the Mental Health Act, its Regulations or forms posted for viewing by detained residents; and A contract ostensibly binding the non-consenting Petitioners to pay 80% of the costs of their detainment. The Petitioners say that they are not adequately fed at the Unapproved home, particularly compared to what they were fed at Minton House, and D.A. has lost a significant amount of weight since January 5, 2014. The Petitioners say that they wish to bathe more often than once per week and that they bathed every day at Minton House. The Petitioners say that the Unapproved Home?s staff injected P.A. with insulin despite that she says she has never had insulin injection treatment before and did not consent to such treatment. Staff at the Unapproved Home confirmed that P.A. was injected with insulin. 20. 21. 22. 23. 24. 25. Part 3: -7- The Petitioners say that, despite requests, they have not been allowed to attend their church to practise their faith. The Petitioners have no personal belongings at Revera other than those that they had on their person when arriving at the Hospital on January 5, 2014. The Respondents refuse to release the Petitioners from their detention at the Unapproved Home despite the Petitioners? repeated requests. The Petitioners? counsel wrote a letter to internal legal counsel, Mr. Graham Sanderson, on February 11, 2014 advising that the initial and continued detention of the Petitioners is illegal and the Petitioners must be immediately released. That letter also asked VIHA to immediately release all of the Petitioners? records and encloses authorizations for that release that were signed by the Petitioners. The Petitioners? counsel spoke with internal legal counsel on February 11, 2014 repeating the request for immediate disclosure of records. The Petitioners? counsel spoke again with internal legal counsel on February 12, 2014 repeating the request for immediate disclosure, particularly all signed forms found in the Mental Health Regulations. internal legal counsel represented to the Petitioners? counsel VIHA granted the Petitioners leave pursuant to section 3? of the Mental Health Act. He further represented that the Petitioners? detention at the Unapproved Home was a condition of the leave but he had not seen the written conditions of the Petitioners? ?leave?. The Unapproved Home received purported written conditions of leave on February? 12, 2014. LEGAL BASIS Submissions on orders sought respecting privacy and disclosure 1. Identifying the Petitioners by their full names will likely negatively stigmatize the Petitioners in their community regardless of the outcome of this proceeding. It is in the public interest that individuals detained under the Mental Health Act are not deterred from challenging their detention in the Courts by fear of negative stigmatization in their community. Disclosure of the sought records and video footage ought to be without delay or expense to the Respondents. The Petitioners? detention from January 5, 2014 until January 29, 2014 was prima facie illegal and the Petitioners dispute the legality of their detention by Revera from February 7, 2014 to present. The administration of justice would fall into disrepute if it is found that the Petitioners were illegally detained and such illegal detention by a private corporation continued because the Court declined to hear applications for disclosure on short notice and declined to order immediate disclosure necessary to determine the legal basis for the detention. Further, section 10 of the Canadian Charter of Rights and Freedoms says that Everyone has the right on arrest or detention to c) to have the vaiidity of the detention determined by we of habeas corpus and to be reieased if the detention is not iawfui. This Court must not permit delay in disclosure to delay the Petitioners in exercising their Charter rights. 3. Both VIHA and Revera have the resources necessary to produce and provide the requested records. Revera would have a minimal amount of records to provide because the Petitioners? detention at the Unapproved Home commenced on February 7, 2014. Submissions on orders sought respecting attendance and transport of Petitioners to 4. Section 10(0) of the Canadian Charter of Rights and Freedoms requires the determination of the validity of the Petitioners detention to be determined by way of habeous corpus, meaning that the Petitioners must be brought before the Coud. 5. The Respondent(s) detaining the Petitioners are responsible for the safety of the Petitioners and therefore must transport the Petitioner for the purposes of habeous corpus. Submission in support of orders respecting Petitioners? wet!-being white detained 6. The conditions in the Unapproved Home as outlined in the factual basis herein, require the scrutiny of this Court in order to uphold the Petitioners rights under section 7 of the Canadian Charter of Rights and Freedoms: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principies of fundamental justice. Submissions in support of orders sought respecting reiease of the Petitioners from detention 7. Section 10(c) of the Canadian Charter of Rights and Freedoms obliges this Honourable Court to determine the validity of the Petitioners? detention and, if found not to not be lawful, this Honourable Court must order the Petitioners? release. 10. 11. 12. 13. VIHA did not have legal authority to detain the Respondents until a doctor issued medical certificates pursuant to section 21 of the Mental Health Act on January 29, 2014. As no medical certificate was issued on January 5, 2014, VIHA illegally detained the Petitioners on January 5, 2014 and that illegal detention continued until January 29, 2014. From January 5, 2014 until January 29, 2014, VIHA breached sections 20(5) and 20(6)(a) of the Mental Health Act by not discharging the Petitioners from the Hospital despite that the Petitioners told VIHA Staff that they sought to be discharged: (5) A nurse in charge of a ward in a designated facility must on learning that a patient in the ward who was admitted under this section desires to leave the designated facility, notify the director of that desire. (6) A patient admitted under this section must be discharged by the director if the patient has reached 16 years of age and the director is notified in any manner that the patient desires to be discharged, When VIHA transported the Petitioners to the Unapproved Home on February 7, 2014, the Petitioners were discharged pursuant to section 36 of the Act. Upon application by the Petitioners? counsel on February 11, 2014, VIHA was required -to issue a certificate of discharge. Section 36 states: (1) The director may discharge a patient from the designated facility. (2) An application, request, medical certificate or warrant made or issued under this Act before the discharge of the patient with respect to whom it is _made or issued is not effective after the discharge for the purposes of this Act. (3) if a person is discharged from a designated facility other than by the operation of section 41 (3), the director must, on receiving an application by or on behalf of the person, provide the person with a certi?cate of discharge, signed by the director, in the prescribed form. By operation of section 36 of the Mental Health Act, the Respondents have illegally detained the Petitioners since February 7, 2014. VIHA maintains that the Petitioners were not discharged but have been granted leave to be detained in the Unapproved Home. Section 37 of the Act states: 14. 15. 17. 18. 20. 21. Subject to section 40 and the regulations, if the director considers that leave would benefit a patient detained in the designated facility, the director may release the patient on leave from the designated facility providing appropriate support exists in the community to meet the conditions of the leave. position on section 37 is wrong because it renders meaningless the term ?release" in that section. Detention is not a condition of being released on leave. A condition of detention is contrary to the intent of section 37.to release patients so they can move freely in their community. Section 37 also does not require the Petitioners to remain in custody even if section 37 specifies custody at the Unapproved Home as a condition of leave. Despite this the Petitioners are physically prevented from leaving the Unapproved Home. position on section 37 renders section 38 of the Act meaningless and circumvents the intent of section 38 which requires governmental scrutiny of the conditions of institutions that hold patients against their will. Section 38 allows a patient to be held in custody at a care home but only if it is an ?approved home?: Subject to section 40 and the regulations, if the director considers that the transfer would benefit a patient detained in the designated facility, the director may transfer the patient to an approved home. An ?approved home" is one selected and approved by the Lieutenant Governor in Council, pursuant to section 43(2)(b) of the Act. Section 1 defines ?approved home? as: a home selected and approved under the regulations made under this Act The Unapproved Home is not an ?approved home?. There are no regulations under the Actthat select or designate any ?approved homes? in British Columbia. Section 37 has also been breached because VIHA did not adequately consider, or consider at all, whether transporting the Petitioners to the Unapproved Home would benefit the Petitioners. Alternatively, section 33(8)(c) of this Mental Health Act enables this Honourable Court to review the reasons and legal authority for the medical certificates supporting the Petitioners detention and this Honourable Court may order that the Petitioners be discharged. There is not sufficient reason for issuing the medical certificates. In the further alternative, if this Honourable Court does not order that the Petitioners are discharged but finds that Petitioners have been properly granted leave under section 37, the conditions of leave ought to be changed to allow the Petitioners to reside at Minton House. VIHA, in issuing its conditions of leave, did .11. not adequately investigate, or investigate at all, whether the Petitioners residing at Minton House and contracting with elder care services would luifiil the conditions 01 leave. Submissions in support of orders sought to convert this proceeding to an action.' 22 if any portion at the Petitioners' detention is determined to be illegal. the Petitioners have a cause of action for damages against either or both of the Respondents for breach oi the Charter of Rights and Freedoms and the ton of false imprisonment, Legal argument in support of order for the Respondents to indemnity costs and expenses of this proceeding 23' It is in the public interest that the detention of all persons, including vulnerable elderly persons subjected to prolonged detention, be scrutinized by this Court and the public. This is particularly so when there is evidence of detention without legal basis or sound explanation as is the case here The Petitioners ought not to be exposed to an adverse oost award or any expense in seeking the remedy of habeas corpus. Part 4: MATERIAL TO BE RELIED ON 1 Affidavit of Jonathan M. Aiyaduraii sworn February 13, 2014; and 2. Such further and other materials deemed necessary to iustiy determine the issues raised and orders sought in this Petition. The Petitioners estimate that the hearing of the Petition will take one de . DATE: 13lFeb/2014 lure ofwnathan M. Aiyadurai ix} iawyarlur Petltinrlers To be completed by the court only: Order made in the terms requested in paragraphs of Part i of this petition -12- with the following variations and additional terms: Signature of Judge Master ACTION NO: VICTORIA REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DOUGLAS THORNTON ALLEN and PAMELA MARY ALLEN PETITIONERS AND: VANCOUVER ISLAND HEALTH AUTHORITY and REVERA INC. RESPONDENTS PETITION TO THE COURT Attn: Jonathan M. Aiyadurai Johns Southward Glazierwaiton Margetts Barristers and Solicitors 204 655 Tyee Road Victoria, BC V9A 6X5 Rh. 250-381-7321 - Fax 250?381-1181 Toll Free 888?442-4042 File No: