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Practical Guide to Elder Abuse and Neglect Law in Canada

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Manitoba

This section outlines:

  1. A snapshot of the law in Manitoba
  2. Key laws and regulations
  3. Abuse response under The Protection for Personcs in Care Act
  4. Abuse response under The Vulnerable Persons Living with a Mental Disability Act
  5. Reporting abuse by a regulated health care professional
  6. Exceptions to confidentiality and privacy rules
  7. Criminal prosecution policies
  8. Protection orders under The Domestic Violence and Stalking Act
  9. Financial abuse by substitute decision-makers
  10. Employment protections
  11. Immigration sponsorship and income assistance
  12. Key government and community contacts

1. Snapshot

Key features of elder abuse and neglect law in Manitoba

The Protection for Persons in Care Act requires all people to report the abuse or neglect of residents and patients of acute, respite, and long-term care to the Protection for Persons in Care Office (PPCO). No action or proceedings can be brought against a person for reporting abuse or neglect in good faith.

When the PPCO receives a report of abuse or neglect, they will inquire into the matter and determine if there are reasonable grounds to believe that a patient is being, or is likely to be, abused or neglected.

The Vulnerable Persons Living with a Mental Disability Act requires all people to report the abuse or neglect of an adult living with a mental disability which manifested before the age of 18, and who needs assistance with personal care or management of their affairs.

Individuals who abuse or neglect a patient under the PPCA or a vulnerable adult under The Vulnerable Persons Living with a Mental Disability Act may have their name entered into the Adult Abuse Registry. The courts and the police are also required to register individuals under certain circumstances, including where they are convicted of abuse or neglect outside of Manitoba.

The court can grant a protection order or prevention order under The Domestic Violence and Stalking Act if an older person is experiencing family violence or stalking. The definition of family violence includes physical, psychological, emotional, sexual, and financial abuse, including damage to property. It covers acts and threats of violence.

The Public Guardian and Trustee of Manitoba can take emergency intervention actions without a court order to protect an adult if they believe the adult is or is likely to be abused or neglected, and there is immediate risk of death, serious harm, or deterioration of physical or mental health.

The Vulnerable Persons’ Commissioner will respond to some types of abuse or neglect by substitute decision-makers. Call 1-800-757-9857.

An older person who is an employee may be eligible for up to ten days leave under The Employment Standards Code if they have experienced domestic violence or stalking. Five days of the leave are paid leave.

An older immigrant can be approved for income assistance benefits when the sponsor is unable or unwilling to provide support, or the older person is experience family violence. The requirement to contact the sponsor can be deferred if contacting the sponsor would lead to risk of harm to the older person or their family.

2. Key Laws and Regulations

Adult Protection

Health Care

Family Violence

Personal Planning

Privacy

Employment Protections

3. The Protection for Persons in Care Act

The Protection for Persons in Care Act[32] sets out the requirements for reporting and investigating abuse or neglect of patients in health facilities, including hospitals and personal care homes.[33]

3.1 Definitions of abuse and neglect

Health facility operators have a duty to protect patients from abuse or neglect.[34]

The Protection for Persons in Care Act defines abuse as encompassing physical, sexual, mental, emotional, and financial mistreatment. The mistreatment must cause or be likely to cause serious harm or significant loss in order to constitute abuse under the PPCA.

  • “abuse” means, subject to subsection (2), an act or omission that
    • (a) is mistreatment, whether physical, sexual, mental, emotional, financial or a combination of any of them, and
    • (b) causes or is reasonably likely to cause
      • (i) death of a patient,
      • (ii) serious physical or psychological harm to a patient, or
      • (iii) significant loss to a patient’s property,
  • but does not include neglect; [35]

Neglect is defined as follows.

  • “neglect” means, subject to subsection (2), an act or omission that
    • (a) is mistreatment that deprives a patient of adequate care, adequate medical attention or other necessaries of life, or a combination of any of them, and
    • (b) causes or is reasonably likely to cause
      • (i) death of a patient, or
      • (ii) serious physical or psychological harm to a patient; [36]

Certain actions are expressly excluded from the definitions of abuse and neglect.

  • Exceptions re definitions of “abuse” and “neglect”
  • 1(2) The following do not constitute abuse or neglect:
    • (a) an act or omission that is the result of, or is attributable to,
      • (i) a patient’s refusal of care, or
      • (ii) a decision made on behalf of a patient by his or her committee or proxy;
    • (b) an act or omission in the circumstances set out in the regulations.[37]

3.2 Reporting abuse and neglect

Any person who has a reasonable belief a patient is or is likely to be abused or neglected must report this to the Protection for Persons in Care Office (PPCO). A person must report abuse or neglect, even if it is based on confidential information. The only exception is if the information is based on solicitor-client privilege. A patient can report that they have been abused or neglected, but this is not a requirement.[38]

  • Duty to report abuse or neglect
  • 3(1) A service provider or other person who has a reasonable basis to believe that a patient is, or is likely to be, abused or neglected shall promptly report the belief, and the information on which it is based, to the minister or the minister’s delegate.
  • If information confidential
  • 3(2) The duty to report applies even if the information on which the person’s belief is based is confidential and its disclosure is restricted by legislation or otherwise. But it does not apply to information that is privileged because of a solicitor-client relationship.[39]

A patient is defined in The Protection for Persons in Care Act to include recipients of acute, respite, and long-term care. The definition specifically references:

  • Residents and in-patients of health facilities (hospitals, personal care homes, and other institutions so designated under the PPCA);[40]
  • Adults receiving geriatric day services; and
  • Adults receiving care in emergency departments and urgent care centres.[41]

No action or proceedings can be brought against a person for reporting abuse or neglect in good faith. A health facility operator or other person cannot disrupt or threaten to disrupt service to a patient or person who makes a report of abuse or neglect.[42]

  • Protection from liability
  • 10 No action or other proceeding may be brought against a person for making a report of abuse or neglect under this Act in good faith.
  • Adverse employment action prohibited
  • 11(1) No operator of a health facility shall take adverse employment action against a service provider of the facility because that person made a report of abuse or neglect in good faith under this Act.
  • Interruption of service prohibited
  • 11(2) No operator of a health facility or other person shall alter, interrupt or discontinue, or threaten to alter, interrupt or discontinue, service to a patient or to a person who has made a report of abuse or neglect under this Act, or to a relative of either of them who receives services from the facility, because a report of abuse or neglect has been made under this Act in good faith.[43]

3.3 Responding to reports of abuse and neglect

When the PPCO receives a report of abuse or neglect, they will inquire into the matter and determine if there are reasonable grounds to believe that a patient is being, or is likely to be, abused or neglected. If so, the matter will be sent to an investigator to conduct an extensive investigation. The patient or their committee must be notified that an investigation is being conducted.[44]

Investigators have a range of investigative powers, including the power to:

  • Enter a health facility;
  • Require a person to provide information relevant to the investigation;
  • Require a person to provide records, including personal information and personal health information;
  • Require a person to provide assistance; and
  • If the investigator has been prevented from exercising their powers, ask the court for a warrant to exercise their powers.[45]

At the end of the investigation, the investigator must complete a report. The investigator must, to the extent possible, involve the patient and accommodate their wishes in making the report.[46]

3.4 Powers of response

After receiving the report, the PPCO can direct the health facility to take action to prevent further abuse or neglect. The PPCO should notify the patient or their committee about any direction to the health facility.[47]

Additional reporting requirements may apply to the PPCO depending on the position held by the abuser. If the person who has abused or neglected a patient is:

  • an employee who provides care or has unsupervised access to patients—the PPCO must report the abuse or neglect to the person’s employer, manager, or supervisor;[48]
  • in a position that they are or could be employed or volunteer with patients again—the PPCO must report the abuse or neglect to the Adult Abuse Registry Committee;[49]
  • a regulated professional—the PPCO can refer the matter to the appropriate college or regulatory body, and that college or body must conduct an investigation to determine if any disciplinary proceedings need to be commenced.[50]

Any person who contravenes The Protection for Persons in Care Act may be guilty of an offence. The penalty for contravening the Act is a fine of up to $2,000 for an individual or $30,000 for a corporation. A person who knowingly makes a false report of abuse or neglect can be guilty of an offence and subject to a fine of up to $2,000.[51]

3.5 Manitoba Adult Abuse Registry

The Adult Abuse Registry is a provincial resource for employers that allows them to screen potential employees for a history of abuse or neglect of vulnerable adults. For the purposes of the Registry, a vulnerable adult includes:

  • A vulnerable person under The Vulnerable Persons Living with a Mental Disability Act (discussed below in section 4); and
  • A patient under their The Protection for Persons in Care Act.[52]

The Adult Abuse Registry Committee will enter a person’s the name into the registry if they determine that:

  • the person has abused or neglected an adult; and
  • the person’s name should be entered into the Adult Abuse Registry.[53]

If the person files a notice with the court objecting to registration of their name, a public court hearing may be held to determine whether the person abused or neglected an adult covered by relevant legislation.[54]

A person will also be registered under the following circumstances:

  • Manitoba courts are required to report people who are found guilty or who plead guilty to abuse or neglect of an adult covered by the Act.[55]
  • Police officers who obtain information that a person was found guilty or pled guilty to abuse or neglect of an adult covered by the Act (in any jurisdiction) is, or is likely to be, present in Manitoba.[56]

4. The Vulnerable Persons Living with a Mental Disability Act

The Vulnerable Persons Living with a Mental Disability Act[57] applies to vulnerable persons, which is defined to mean adults living with a mental disability who need assistance with basic needs regarding personal care or management of their property. “Mental disability” is defined to mean significantly impaired intellectual functioning and impaired adaptive behaviour which manifested before the person was 18 years old, but excludes a mental disability due exclusively to a mental disorder as defined in section 1 of the Mental Health Act.[58]

The Vulnerable Persons Living with a Mental Disability Act governs the provision of support services, protection from abuse and neglect, and the appointment of substitute decision-makers for this population.

4.1 Guiding principles

The Act sets out five guiding principles in its preamble, including the presumption of capacity, encouraging involvement in decision-making, and respect for rights and dignity.

  • WHEREAS Manitobans recognize that vulnerable persons are presumed to have the capacity to make decisions affecting themselves, unless demonstrated otherwise;
  • AND WHEREAS it is recognized that vulnerable persons should be encouraged to make their own decisions;
  • AND WHEREAS it is recognized that the vulnerable person’s support network should be encouraged to assist the vulnerable person in making decisions so as to enhance his or her independence and self-determination;
  • AND WHEREAS it is recognized that any assistance with decision making that is provided to a vulnerable person should be provided in a manner which respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances;
  • AND WHEREAS it is recognized that substitute decision making should be invoked only as a last resort when a vulnerable person needs decisions to be made and is unable to make these decisions by himself or herself or with the involvement of members of his or her support network;[59]

4.2 Definitions of abuse and neglect

The Vulnerable Persons Living with a Mental Disability Act defines abuse and neglect.

  • “abuse” means mistreatment, whether physical, sexual, mental, emotional, financial or a combination thereof, that is reasonably likely to cause death, or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property;
  • “neglect” means an act or omission whether intentional or unintentional, that is reasonably likely to cause death or that causes or is reasonably likely to cause serious physical or psychological harm to a vulnerable person, or significant loss to his or her property;[60]

4.3 Reporting abuse and neglect

The Act places a duty on service providers, substitute decision-makers, and committees to take reasonable steps to protect the vulnerable person who they support from abuse or neglect.[61]

Any person who has a reasonable belief that a vulnerable person is or is likely to be abused or neglected must immediately report this to the Department of Families. The duty to report exists despite any legislation restricting disclosure of personal information.

  • Duty to report abuse or neglect
  • 21(1) A person who believes on reasonable grounds that a vulnerable person is, or is likely to be abused or neglected, shall immediately report the belief and the information on which it is based to the executive director.
  • Subsection (1) applies despite restrictions
  • 21(2) Subsection (1) applies despite any restriction respecting the disclosure of information, in legislation or elsewhere.[62]

No action can be brought against a person for reporting abuse or neglect in good faith. A person cannot have adverse employment action taken against them for reporting abuse and neglect.

  • Protection from liability
  • 21.1 No action or other proceeding may be brought against a person for reporting in good faith that a vulnerable person is or is likely to be abused or neglected.
  • Adverse employment action prohibited
  • 21.2 No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage a person who makes a report under section 21.[63]

4.4 Responding to reports of abuse and neglect

When a report of abuse or neglect has been received, the Department of Families must investigate the matter.[64]

The Department of Families has a range of investigative powers, including to:

  • Communicate with the vulnerable person;
  • Enter a location to communicate with the vulnerable person;
  • Require a person to provide relevant information, including personal and health information;
  • Require a person to produce relevant records or other things in their custody;
  • Obtain information and reports relevant to the matter;
  • Apply for a court order to enter a premises if the executive director has been denied access to the vulnerable adult; and
  • Obtain the assistance of a peace officer when granted a court order for entry.[65]

4.5 Powers of response

The Department of Families can take action to protect a vulnerable person if they are being abused or neglected or abuse or neglect is likely. These actions include:

  • Providing or arranging for support services;
  • Conducting an emergency intervention (see below);
  • Applying to the court to have a substitute decision-maker appointed;
  • Applying to court for an emergency appointment or replacement of a substitute decision-maker;
  • Applying to the court to remove, replace, or vary the order for a substitute decision-maker; or
  • Requesting the police conduct a criminal investigation.[66]

Additional reporting requirements may apply depending on the position held by the abuser. If the abuser is:

  • an employee who provides care or has unsupervised access to patients—the Department of Families must report the abuse or neglect to the person’s employer, manager, or supervisor;[67]
  • in a position that they are or could be employed or volunteer with patients again—the Department of Families must report the abuse or neglect to the Adult Abuse Registry Committee;[68]
  • a regulated professional—the Department of Families can refer the matter to the appropriate college or regulatory body, and that college or body must conduct an investigation to determine if any disciplinary proceedings need to be commenced.[69]

The executive director has the power to take emergency intervention action to protect a vulnerable adult without a court order. To take emergency intervention action, the executive director must have reasonable grounds to believe the vulnerable person:

  • is or is likely to be abused and neglected; and
  • is in immediate danger of death or serious harm or deterioration to health.
  • Emergency intervention action
  • 26(1) The executive director may, at any time and without a court order, take such emergency intervention action as is necessary to protect the vulnerable person, including removing the vulnerable person to a place of safety, if the executive director believes on reasonable grounds that
    • (a) the vulnerable person is or is likely to be abused or neglected; and
    • (b) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the vulnerable person.[70]

Emergency intervention actions include:

  • Taking a vulnerable person to a safe place;
  • Entering a location to protect a vulnerable person; or
  • Obtaining assistance from a peace officer.[71]

Emergency interventions can continue for up to 120 hours. If the vulnerable person has a substitute decision-maker for personal care, the decision-maker’s powers are suspended during the emergency intervention. When emergency interventions occur, the executive director must inform the vulnerable person. Within 24 hours, the executive director must also inform the nearest relative, a substitute decision-maker, the committee, or any person living with the vulnerable person.[72]

5. Regulated Health Professionals and Reporting

5.1 Health Professional Regulation in Manitoba

Prior to The Regulated Health Professions Act,[73] each health profession was regulated under its own Act. The Regulated Health Professions Act was proclaimed in 2014 and is intended to bring together all regulated health professions under one umbrella act. Over time, professions will be moving from having their own statute to coming under The Regulated Health Professions Act.

Currently, audiologists and speech therapists, doctors, registered nurses, and paramedics are governed by The Regulated Health Professions Act. The remainder are governed by their own Acts for now.[74]

This section will describe the rules under The Regulated Health Professions Act, as it will eventually govern all health professions.

5.2 Reporting a regulated health professional

If a member has reasonable belief that another member in the same profession is unfit to practice, incompetent, or unethical, or suffers from an illness or disorder that affects their fitness to practice, that member must report this to the college.[75]

Any person can make a complaint about a regulated health professional’s conduct. This complaint must be made in writing to the registrar of the relevant college.[76]

Outcome of a report

The college is responsible for regulating health professionals within their jurisdiction, including making sure members are fit for practice and are not committing any infractions. A complaint to the college will not result in any remedies for the older adult.

When a college registrar receives a complaint, they can:

  • Encourage resolution through informal measures;
  • Refer the matter to the complaints investigation committee; or
  • Dismiss the complaint.[77]

If a complaint cannot be resolved informally, the complaints investigation committee must appoint an investigator to look into the complaint.[78] The investigator must report their findings to the complaints investigation committee, and the committee can:

  • Refer the matter to the inquiry committee;
  • Dismiss the matter;
  • Refer the matter to mediation if both the complainant and member agree;
  • Censure the investigated member;
  • Accept the voluntary surrender of the member’s registration;
  • Accept an undertaking from the member that provides for further training, counselling, monitoring or other conditions.[79]

If a case is referred to inquiry committee, a panel of the inquiry committee will hold a public hearing and make decisions on what disciplinary action should be taken.[80]

After the hearing, the panel may decide to take no further action or to make an order doing one or more of the following:

  • Issue a reprimand;
  • Suspend a member’s registration;
  • Require a member to undergo further education or training;
  • Place restrictions on a member’s practice;
  • Require a member to have counselling or treatment;
  • Require the member to repay money;
  • Revoking a member’s registration; or
  • Issue a fine and/or require the member pay the costs of the investigation, hearing and appeal.[81]

5.3 Other reporting duties

Regulated health professionals may also have some duties to report abuse or misconduct arising from their professional codes of conduct. If you are a regulated health professional, examine your professional codes of conduct or practice standards to see if you have any responsibilities under these rules, or contact your college for advice.

6. Confidentiality, Privacy, and Privilege

Confidentiality ensures vital information is kept private for professions which require a client to disclose private information, such as counsellors, doctors, and nurses. A lawyer must respect solicitor-client privilege. Requirements of confidentiality and privilege can be found in legislation, in common law, and in professional codes of ethics, codes of conduct, or professional standards.

Generally, professionals, staff, and volunteers must get consent from the older adult before disclosing personal or health information. However, exceptions to confidentiality and privilege have been created by various laws.

6.1 Anonymity of a person who reports abuse

Under the Protection for Persons in Care Act, a person cannot be required or compelled in a civil proceeding to disclose the identity of a person who reports abuse or neglect or provides information. However, a person may have to disclose information to the person who is enforcing the Act.[82]

  • Protection of identity
  • 11.1(1) A person acting under the authority of this Act or engaged in its administration
    • (a) is not required to disclose or produce any information that could reasonably be expected to reveal the identity of
      • (i) a person who reported abuse or neglect, or
      • (ii) a person who was interviewed, or who provided information in confidence, in the course of an inquiry or investigation under this Act; and
    • (b) cannot be compelled to disclose or produce such information for the purpose of any civil legal proceeding.
  • Exceptions
  • 11.1(2) Subsection (1) does not prevent the disclosure of information
    • (a) to a person engaged in the administration or enforcement of this Act for the purpose of administering or enforcing it; or
    • (b) to a court, upon application by a person seeking the disclosure of the information, for the purpose of determining whether the information could reasonably be expected to reveal the identity of a person whose identity is protected by subsection (1).[83]

6.2 Confidentiality of personal and health information

Exceptions under adult protection law

Under the Protection for Persons in Care Act, a person must make a report if they reasonably believe that a person in care is or is likely to be abused or neglected. Reporting is required even if based on confidential information and legislation otherwise restricts disclosure. However, information based on solicitor-client privilege is excluded from this exception, and cannot be disclosed.[84]

  • Duty to report abuse or neglect
  • 3(1) A service provider or other person who has a reasonable basis to believe that a patient is, or is likely to be, abused or neglected shall promptly report the belief, and the information on which it is based, to the minister or the minister’s delegate.
  • If information confidential
  • 3(2) The duty to report applies even if the information on which the person’s belief is based is confidential and its disclosure is restricted by legislation or otherwise. But it does not apply to information that is privileged because of a solicitor-client relationship.[85]

Under The Vulnerable Persons Living with a Mental Disability Act, a person must make a report if they reasonably believe that a vulnerable person is or is likely to be abused or neglected, even if there are any legal restrictions on the disclosure of that information. However, this rule does not apply to information subject to solicitor-client privilege.

  • Duty to report abuse or neglect
  • 21(1) A person who believes on reasonable grounds that a vulnerable person is, or is likely to be abused or neglected, shall immediately report the belief and the information on which it is based to the executive director.
  • Subsection (1) applies despite restrictions
  • 21(2) Subsection (1) applies despite any restriction respecting the disclosure of information, in legislation or elsewhere.
  • Solicitor-client privilege protected
  • 24 Nothing in section 21 or 22 abrogates a privilege that may exist between a solicitor and his or her client.[86]

Exceptions under privacy law

In Manitoba there are two pieces of legislation that outline privacy rights:

  • The Freedom of Information and Protection of Privacy Act—applies to public bodies, such as government departments and agencies.[87]
  • The Personal Health Information Act—applies to person health information.[88]

The federal Personal Information Protection and Electronic Documents Act also applies in Manitoba. See the federal laws section for confidentiality exceptions under this Act, which applies to private organizations conducting commercial activities and to federally regulated organizations such as banks.

Under The Freedom of Information and Protection of Privacy Act, a public body must inform a person why their information is being collected and provide the legal authority for collecting it.[89] Personal information can only be used or disclosed for the purposes it was collected for, if the person consents to it, or if it falls under a listed exception.[90] Personal information can be disclosed without consent for prescribed reasons, including:

  • Where necessary to protect the mental or physical health or the safety of any individual or group of individuals;[91]
  • To contact a relative or friend of a person who is injured, incapacitated or ill;[92]
  • To assist with a police investigation;[93] or
  • As authorized or required by another law.[94]

Under The Personal Health Information Act, a trustee (health professional, facility, agency or other public) collecting personal health information must inform the person why their information is being collected.[95] Personal health information can only be used for the purposes for which it was collected, if the person consents, or if it falls under one of the listed exceptions.[96] Personal health information can be disclosed without consent for prescribed reasons, including:

  • Where necessary to prevent or lessen:
    •  a risk of harm to the health or safety of a minor; or
    •  a risk of serious harm to the health or safety of the individual the information is about or another individual, or to public health or public safety;[97]
  • For the delivery, planning, and management of health care;[98]
  • To contact a relative or friend of a person who is injured, incapacitated or ill;[99]
  • For the purposes of discipline of a regulated health professional;[100]
  • To assist with a police investigation;[101] or
  • As required or authorized by another law.[102]

Exceptions that apply to solicitor-client privilege

Confidentiality and legal privilege are two similar, but legally distinct concepts. Both are based on the principle that a lawyer owes a duty of loyalty to the client.

Solicitor-client privilege is a legal principle that applies to all communications between a client and a lawyer where the communication was for the purposes of obtaining legal advice and was intended to be confidential.[103] It operates to protect such information from having to be disclosed in legal proceedings.

However, solicitor-client privilege will not apply:

  • Where privilege has been waived by the client;
  • Where there is a clear, serious, and imminent threat to public safety;[104]
  • Where the innocence of an accused is at stake;[105]
  • Where limited by law.

Other types of privilege include litigation privilege, which protects communications created for the dominant purpose of preparing for litigation.

A lawyer’s duty of confidentiality is an ethical duty. Unlike privilege, this duty covers any communications made during the professional relationship. There is no requirement that the communications be made for the purposes of obtaining legal advice.

The Law Society of Manitoba sets out the duty of confidentiality and applicable exceptions in its Code of Professional Conduct.[106]

  • Confidential Information
  • 3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and must not divulge any such information unless:
    • (a) expressly or impliedly authorized by the client;
    • (b) required by law or a court to do so;
    • (c) required to deliver the information to the Law Society; or
    • (d) otherwise permitted by this rule.[107]

The Code of Professional Conduct also permits disclosure of confidential information where a person is in imminent danger of death or serious injury and disclosure is necessary to prevent this.

  • Mandatory Disclosure
  • 3.3-3 When required by law, by order of a tribunal of competent jurisdiction, or pursuant to The Legal Profession Act and the regulations/by-laws/rules thereunder a lawyer must disclose confidential information, but the lawyer must not disclose more information than is required.
  • 3.3-3A A lawyer must disclose confidential information, but only to the extent necessary:
    • (a) if the lawyer has reasonable grounds for believing that an identifiable person or group is in imminent danger of death or serious bodily harm and believes disclosure is necessary to prevent the death or harm; and
    • (b) the lawyer does not reasonably believe that such disclosure will cause harm to the lawyer or to the lawyer’s family or to the lawyer’s associates.
  • Permitted Disclosure
  • 3.3-3B A lawyer may divulge confidential information, but only to the extent necessary:
    • (a) with the express or implied authority of the client concerned;
    • (b) in order to establish or collect a fee;
    • (c) in order to secure legal or ethical advice about the lawyer’s proposed conduct;
    • (d) if the lawyer has reasonable grounds for believing that a crime is likely to be committed and believes disclosure could prevent the crime; or
    • (e) if the lawyer has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility[108]

7. Criminal Prosecution

7.1 Policy

While criminal law is primarily under the federal jurisdiction, Manitoba’s Prosecution Policies provide guidance to prosecutors. There are no policies directly covering elder abuse, but a few of the policies could apply in an elder abuse context.[109]

The Restorative Justice and Diversion policy discusses the Department of Justice’s commitment to using alternative resolution matters when it is appropriate:

  • The policy acknowledges that cognitive impairment, mental illness, and addictions can underly some criminal behaviour. Addressing these factors can reduce the risks to the public.
  • The policy states all offences can be eligible for restorative approaches. The policy gives the example that a crime committed by a person with dementia may be a case for diversion to the mental health system, rather than criminal prosecution.[110]

The Mentally Disordered and Cognitively Impaired Offenders policy discusses the special considerations that should be taken if an offender has a cognitive impairment or mental disorder:

  • The criminal justice system should give special consideration when the offender has a cognitive impairment or mental disorder;
  • The criminal justice response will depend on what the impairment or disorder is, how severe it is, and how much of a risk the offender poses to the public;
  • In some cases, diversion can improve public safety more than a jail sentence;
  • Legal responses can include diversion, restorative justice, mitigation of sentencing, a finding of not criminally responsible, a finding that the offender is unfit to stand trial, or finding inability to form the specific intent needed to be found guilty of the offence; and
  • Some cases can be referred to the Mental Health Court, which uses a therapeutic approach, to provide support and assistance.[111]

The Domestic Violence policy outlines the policy and programs relating to cases of domestic violence.

  • Manitoba has a zero-tolerance policy; it will usually be in the public interest to lay charges;
  • Restorative justice and diversion can be used for domestic violence cases – depending on the seriousness of the case, it may be appropriate to divert the matter out of the criminal system;
  • The prosecution service’s definition of domestic violence includes physical assault, sexual assault, threat of physical or sexual assault, or other criminal offences between people who are or have ever been dating, cohabitating, married, separated or divorced;
  • The policy notes victims may be reluctant to have charges proceed or testify in court but should be encouraged to testify. Prosecutors should consider applying for the testimony to be given from behind a screen or by way of closed circuit television if necessary;
  • If testifying puts the victim at risk of harm, this should be considered in deciding whether or how to proceed;
  • When bail is being considered, prosecutors should request a no contact order between the accused and victim;
  • In sentencing, prosecutors should oppose conditional discharges, absolute discharges, and conditional sentences unless there are extraordinary circumstances; and
  • Prosecutors should consider what orders are needed and what conditions should be put into the orders. This could include protection conditions in relation to the victim or witnesses.[112]

7.2 Victims Bill of Rights

The Victims’ Bill of Rights[113]sets out the rights victims have regarding the investigation, prosecution, and disposition of crimes. It also contains provisions regarding the victims’ assistance fund and compensation for victims of crime.

A victim’s rights include:

  • To receive information from the police on victim rights, victim services, safety planning, restitution orders, return of property, and victim impact statements;
  • To be consulted with on the use of alternative measures, restorative justice, and bail;
  • To be interviewed by a police officer of the same gender when it is a sexual offence;
  • To have the contact and employment information for the person and their family kept confidential upon request;
  • To be informed on the progress of the investigation and the prosecution, including whether the accused has been released from custody;
  • To have contact information for the prosecutor’s office;
  • To receive information from the prosecutor’s office on matters such as the victim’s rights, their role in the proceedings, alternative measures, the processes involved in the trial and sentencing, and how to obtain certain records or resources involved in the prosecution;
  • To give their views on prosecution decisions, including laying charges, alternative measures, release, and sentencing;
  • To receive information about the courts, accessing court proceedings, security measures, and court records;
  • To receive information from correctional services on prescribed matters, including the terms of orders made relating to sentencing, release conditions, and incarceration;
  • To receive notice from the correctional services if someone under their control is a threat to the victim or the victim’s family;
  • To receive information on review boards, their processes, and the status of reviews;
  • To receive information on legal aid services, including legal advice on victim’s rights;
  • To obtain independent counsel when a victim’s personal information is being requested;
  • To be granted leave from work without pay to attend the trial to testify, provide a victim impact statement, or observe sentencing; and
  • To make a complaint to the director of victim services if the victim feels their rights have not been met, and to have this complaint investigated.[114]

Victims who are injured during a criminal offence or assisting a police officer may be eligible for compensation for their injuries, including payment for expenses and loss of wages, and counselling.[115] A witness or caregiver for the victim may be eligible for compensation for certain expenses.[116]

8. Family Violence Protection under The Domestic Violence and Stalking Act

The Domestic Violence and Stalking Act[117] outlines how a person who is experiencing family violence or stalking can obtain a protection order or prevention order.

8.1 Definitions

The Act defines domestic violence as including actual or threatened physical, psychological, emotional, sexual, and financial abuse.

  • Meaning of “domestic violence”
  • 2(1.1) The following acts and omissions constitute domestic violence:
    • (a) an intentional, reckless or threatened act or omission that causes bodily harm or property damage;
    • (b) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damage;
    • (c) conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse;
    • (d) forced confinement;
    • (e) sexual abuse.[118]

For an act or omission to constitute domestic violence, it must occur within a family, dating, spousal, conjugal, or intimate relationship. For family or dating relationships, it does not matter whether the person and abuser have ever lived together.

  • Who commits “domestic violence”
  • 2(1) Domestic violence occurs when a person is subjected to an act or omission mentioned in subsection (1.1) by another person who
    • (a) is cohabiting or has cohabited with him or her in a spousal, conjugal or intimate relationship;
    • (b) has or had a family relationship with him or her, in which they have lived together;
    • (c) has or had a family relationship with him or her, in which they have not lived together;
    • (d) has or had a dating relationship with him or her, whether or not they have ever lived together; or
    • (e) is the other biological or adoptive parent of his or her child, regardless of their marital status or whether they have ever lived together.[119]

The law also covers stalking, which occurs when a person repeatedly engages in conduct that causes the other person to fear for their own safety, and the person knows (or is reckless as to whether) the other person is harassed.[120]

8.2 Protection orders

Criteria for granting an order

A designated justice of the peace can grant a protection order without notice when:

  • There has been domestic violence;
  • The subject believes it is likely to continue;
  • The subject requires protection; and
  • The order needs to be granted with urgency.
  • Granting a protection order without notice
  • 6(1) A designated justice of the peace may grant a protection order without notice if the justice determines that
    • (a) the respondent
      • (i) is committing or has committed domestic violence against the subject, or
      • (ii) is stalking or has stalked the subject;
    • (b) the subject believes that the respondent will continue or resume the domestic violence or stalking;
    • (c) the subject requires protection because there is a reasonable likelihood that the respondent will continue or resume the domestic violence or stalking; and
    • (d) due to the seriousness or urgency of the circumstances, the protection order should be made without delay.
  • Certain persons deemed to have belief
  • 6(2) Where, but for mental incompetence or minority, a person would, in all the circumstances, reasonably believe that the respondent will continue or resume the domestic violence or stalking, the person is conclusively deemed to have the belief referred to in clause (1)(b).[121]

Section 6.1 of The Domestic Violence and Stalking Act sets out the factors that the justice should consider in deciding whether to grant a protection order, including the nature of the domestic violence and any circumstances that may increase the risk to the subject, such as the age, health, or economic dependence of the subject.

  • Considerations
  • 6.1(1) When determining whether to grant a protection order, a designated justice of the peace must consider, in addition to any other relevant consideration, the following risk factors:
    • (a) the history of domestic violence or stalking committed by the respondent;
    • (b) the nature of the domestic violence or stalking committed by the respondent;
    • (c) whether the domestic violence or stalking is repetitive or escalating;
    • (d) whether the domestic violence or stalking is evidence of a pattern of coercive or controlling behaviour respecting the subject;
    • (e) other previous incidents of violence committed by the respondent, including any violence against animals;
    • (f) any mental health concerns involving the respondent;
    • (g) the current status of any relationship between the subject and the respondent, including any recent separation or intention to separate;
    • (h) any other circumstances of the respondent that may increase the risk to the subject, such as
      • (i) substance abuse,
      • (ii) employment or financial difficulties, or
      • (iii) access to firearms or other weapons;
      • (i) any circumstances of the subject that may increase the risk to the subject, such as pregnancy, age, family circumstances, health or economic dependence.[122]

A protection order can be granted even if the abuser no longer lives in the same premises or community as the subject. The DVSA lists the circumstances that would not prevent the grant of a protection order.

  • No bar to granting protection order
  • 6.1(3) The designated justice of the peace may grant a protection order even if one or more of the following circumstances exist:
    • (a) a protection order has previously been granted against the respondent, regardless of whether the respondent has complied with that order;
    • (b) the respondent no longer resides in the subject’s residence or in the same community where the subject resides;
    • (c) the respondent is incarcerated at the time the application is made;
    • (d) criminal charges have been or may be laid against the respondent;
    • (e) the subject is residing in an emergency shelter or other safe place;
    • (f) the subject has a history of resuming a relationship with the respondent.[123]

Protection orders are in effect for three years, although an order can be granted for a longer period if necessary to protect the person experiencing domestic violence.[124]

Who can apply for an order

The following people can apply for a protection order:

  • The person experiencing domestic violence, in person;
  • A lawyer, with the person’s consent, in person or by telecommunication (telephone, email, fax);
  • A peace officer, with the person’s consent, in person or by telecommunication; or
  • A protection order designate (POD), with the person’s consent, in person or by phone.[125]

Protection order designates are persons who have been trained and designated by the Minister of Justice to assist with protection order applications.

The person experiencing domestic violence can have a family member, friend, or other person who provides support, at the hearing.[126]

Possible terms of a protection order

Possible terms of the protection order include:

  • No communication with the person or another specified person;
  • Staying away from locations the person is at or attends regularly;
  • Removal of the person committing domestic violence by a peace officer;
  • Police accompaniment to collect belongings;
  • Temporary possession of necessary personal property;
  • Restrain a respondent from stalking;
  • Surrender of any weapons to the police, or seizure of weapons by police; and
  • Any other terms the court considers appropriate.[127]

8.3 Prevention orders

A person can apply to the Court of Queen’s Bench for a prevention order, which contains more possible terms than a protection order. To obtain a prevention order, the court must be satisfied that the respondent has committed domestic violence or stalking.[128]

The court can put any terms in the prevention order that they feel are appropriate to protect the person who experienced domestic violence. The terms which may be made under a protection order may also be made under a prevention order. Additional terms that can only be made under a prevention order include:

  • Temporary exclusive occupation of the residence;
  • Requiring the abuser to pay compensation for financial losses from the domestic violence, including lost income, legal fees, and expenses relating to new accommodations, medical costs, counselling and security measures;
  • Restraining the abuser from taking or dealing with the person’s property;
  • Seizure of personal property used in the domestic violence, including computers and cameras;
  • Requiring the abuser to receive counselling;
  • Requiring the abuser to post a bond to secure compliance with the order; and
  • Suspending the respondent’s drivers’ licence if a motor vehicle was used in the domestic violence or stalking.[129]

8.4 Confidentiality provisions

For both the protection and prevention orders, there is prohibition against disclosing the applicant’s home or business address, except to the extent necessary to enforce the order. The court can order other personal information that can identify the applicant or witness be kept confidential if disclosure could endanger that person’s safety.[130]

9. Financial Abuse by Substitute Decision-Makers

9.1 Substitute decision-makers in Manitoba

In Manitoba, a substitute decision-maker could be:

  • An attorney under a springing or enduring power of attorney (POA), chosen by the adult;
  • A committee for property (or committee of both property and personal care) appointed by the court;
  • A committee, appointed through a statutory process; or
  • A substituted decision-maker (SDM) for property, appointed by the Vulnerable Persons’ Commissioner.

9.2 Attorneys under a springing or enduring POA

Appointing an attorney

The Powers of Attorney Act[131] outlines the requirements for a springing or enduring POA:

  • A springing POA specifies that the POA comes into force on a specified later date or when a specified event happens, such as when the adult loses decision-making capacity.[132]
  • An enduring power of attorney (EPOA) begins when it is validly signed by the adult and witnesses, and continues even when the adult no longer has decision-making capacity, provided the document states it continues after the incapacity of the adult.[133]

The adult or attorney can file a copy of the EPOA with the Public Guardian and Trustee of Manitoba (PGT).[134]

The adult can appoint:

  • A single attorney;
  • Multiple people as joint attorneys; or
  • Successive attorneys.

If there are joint attorneys and decisions are not unanimous, the decision of the majority of attorneys stands. If there is a disagreement and no majority decision can be made, the first attorney named in the document makes the decision.[135] An attorney who does not agree with a decision and makes a written objection to each of the other joint attorneys cannot be liable for the decision made.[136]

Duties of an attorney

An attorney under a springing power of attorney or EPOA has several responsibilities, including to:

  • Exercise the judgment and care that “a person of prudence, discretion and intelligence” would exercise in conducting their own affairs. If the attorney is paid for acing as attorney, they must exercise the judgment and care that a person in the business of managing property for others is required to exercise;[137]
  • For EPOAs, to exercise their duty to act on behalf of the adult if they know or ought to know that the adult does not have decision-making capacity;[138] and
  • Provide accounts for all decisions about the adult’s property each year when requested by a person named to receive the accounts, or (if no one is named) the nearest relative of the adult annually.[139]

Ending a POA

An EPOA can end in several ways:

  • An substitute decision-maker for property is appointed under The Vulnerable Persons Living with a Mental Disability Act;
  • The PGT or other committee is appointed under the Mental Health Act;
  • The attorney renounces their appointment and gives notice of this to the adult;
  • The adult or attorney becomes bankrupt;
  • The attorney loses decision-making capacity;
  • The adult or attorney dies; or
  • The court terminates the EPOA.[140]

The EPOA is suspended if an emergency SDM for property is appointed under The Vulnerable Persons Living with a Mental Disability Act and remains suspended until the emergency SDM’s powers end.[141]

The following people can apply to the court to have the court make changes to an EPOA:

  • The attorney
  • PGT
  • The nearest relative of the adult
  • recipient of accounts
  • other interested person (with approval of the court).

The court can make any order it considers appropriate, including to:

  • Give directions on any matter respecting the management of the adult’s property;
  • End the POA;
  • Change the attorney;
  • Remove an attorney;
  • Require the attorney to provide accounts; or
  • Vary the powers of the attorney.[142]

9.3 Court-appointed committee

Appointing a committee

The Mental Health Act outlines the procedure for the appointing a committee. Any person living in Manitoba can apply to the court to have a committee appointed for an adult. The application can be for a committee of property or a committee of property and personal care.

For the court to appoint a committee of property, the adult must be incapable of managing their property because of a mental incapacity, and must need decisions to be made on their behalf about that property. For the appointment of a committee of both property and personal care, the adult must also be incapable of personal care. The court can appoint multiple committees acting jointly or as alternates.[143]

In determining if the adult needs help making these decisions, the court must consider any existing EPOA or health care directive. The court cannot appoint a committee if the adult’s incapacity is due to a mental disability manifested before age 18, in which they would fall under The Vulnerable Persons Living with a Mental Disability Act’s SDM provisions.[144]

The committee must provide a security to the court in the form of a bond. This amount must be double the value of the adult’s property. This security is to ensure the committee fulfills their responsibilities and enables the court to compensate the adult if their assets were lost due to mismanagement. The court can waive this requirement, and the PGT is excluded from the security requirement if the PGT is the committee.[145]

Powers of a committee

Subject to exceptions in the Act, a committee of property has the power to do anything with the adult’s property that the adult could do if they were capable. Committees of property always have certain powers, including to:

  • Invest money and deal with personal property;
  • Manage claims related to the adult’s property;
  • Deal with leases of real property of up to three years;
  • Pay for the maintenance of the incapable person; and
  • Fulfill contracts made when the adult was capable.[146]

The court can give a committee of property other powers if it is appropriate, including the power to:

  • Sell, purchase, or otherwise deal with real property;
  • Operate the adult’s trade or business;
  • Manage a debt owed by the adult; or
  • Make gifts, donations, or loans of the adult’s property.[147]

Duties of a committee

A committee of property has several duties under the Act:

  • Exercise their powers and perform their duties “diligently, with honesty and integrity and in good faith, for the benefit of the incapable person”;[148]
  • Make expenditures for the person’s (and the person’s dependents’) support, education and care, and to satisfy legal obligations;
  • When making expenditures, consider the value of the adult’s property, their accustomed standard of living, and other legal obligations;
  • When making expenditures, only make expenditures for dependents and to satisfy legal obligations if there will be enough to provide for needed support and care of the adult;
  • File an inventory of the adult’s property within 6 months of being appointed committee;
  • Provide an accounting to the court if the court has granted a request for accounting; and
  • Provide an accounting to the executor after the adult has died.[149]

A committee of both property and personal care has the same duties and powers as a committee of property, except that it also has the power to:

  • Determine where and with whom the adult with live;
  • Consent or refuse consent to medical or psychiatric treatment or health care on the incapable person’s behalf (unless the adult made a health care directive when capable);
  • Make decisions about daily living on the adult’s behalf; and
  • Manage any claim or proceeding relating to the adult.[150]

A committee of both property and personal care is also subject to additional duties, including to:

  • Choose the least restrictive and least intrusive course of action relating to personal care that is available and is appropriate;
  • Exercise the power to give or refuse consent to treatment in the adult’s best interests; and
  • To be guided by the adult’s wishes, values, and beliefs (or where that cannot be done, to be guided by the adult’s best interests).[151]

Terminating a committee

Any person can apply to the court to have the court:

  • Terminate the committee;
  • Replace the committee; or
  • Change the terms of the appointment.[152]

The court can terminate the appointment if the criteria for appointing a committee are no longer met. The court can also terminate the appointment if that is in the adult’s best interests, including when:

  • The committee refuses to act;
  • The committee has failed to act in accordance with the Mental Health Act;
  • The committee has acted improperly or put the adults well-being or property in danger;
  • The committee does not meet the conditions of their appointment; or
  • The committee is not suitable to be committee.[153]

The court can replace the committee if the conditions for having a committee are still met, and the committee was removed or has died.[154]

The court can vary the appointment, including:

  • The committee’s duties or powers;
  • The conditions on the appointment;
  • The length of the appointment; or
  • Appoint an additional or alternate committee.[155]

9.4 PGT as committee through a statutory process

Appointing the PGT

The Mental Health Act[156] outlines the process for appointing the PGT as committee through a statutory process, administered through the provincial Director of Psychiatric Services (DPS). The PGT as committee has the power over property that the adult would have had they been capable. For personal care, the PGT can:

  • Make decisions about where the person will live;
  • Consent to health care and psychiatric treatment;
  • Make decisions about daily living; and
  • Deal with legal proceedings.

The PGT must act in the person’s best interests.[157]

To have the DPS order a committeeship, a doctor must first complete a certificate of incapacity stating:

  • The person is incapable of managing property or personal care due to a mental condition; and
  • Incapability is not due to a mental disability manifested before age 18 (which would fall under the SDM provisions of The Vulnerable Persons Living with a Mental Disability Act).

A social worker must provide a social history.[158]

If the DPS believes a committee is needed, the adult and their nearest relative or proxy must be notified and can make objections to the intended appointment. The DPS must consider all such objections.[159]

The DPS can make an order appointing a committee if the DPS believes it would be in the person’s best interests. The PGT will become the committee for both property and personal care.[160]

If the adult has appointed an attorney under an EPOA, the EPOA is suspended when the PGT is appointed committee. The PGT will decide whether it would be in the person’s interest to have the PGT continue as committee, or if the PGT will not act as committee and the EPOA can resume. If there are multiple attorneys appointed, the PGT can terminate the power of one of the attorneys.[161]

Urgent interventions

If the DPS believes the person needs a committee appointed urgently, they can appoint the PGT as committee without notice to the person and their nearest relative or proxy. A person may need a committee urgently if they are at immediate risk of death, serious harm, deterioration of physical health, deterioration of mental health, or serious loss to property and the person needs a committee to prevent this harm.[162]

The PGT can take emergency intervention actions without a court order to protect the adult if they believe the adult is or is likely to be abused or neglected, and there is immediate risk of death, serious harm, or deterioration of physical or mental health. Emergency powers include:

  • Removing the person and taking them to a safe place;
  • Entering a premises to protect the person; or
  • Requesting police assistance to protect the adult.[163]

Ending the committeeship

An order making PGT the committee can end in several ways:

  • The court orders the committeeship cancelled;
  • The court appoints a private committee; or
  • The person regains decision-making capacity.[164]

The person, their nearest relative, their proxy, or the PGT can apply to the court to have the committeeship order cancelled, or to have another person appointed as private committee.[165]

9.5 SDM appointed by the Vulnerable Persons’ Commissioner

The role of the Vulnerable Persons’ Commissioner

The Vulnerable Persons’ Commissioner (VPC) has several responsibilities, including:

  • Providing vulnerable persons and SDMs with information on rights, powers, and duties;
  • Providing information on how to appoint an SDM;
  • Mediating disputes among SDMs; and
  • Investigating complaints about SDMs.[166]

The VPC keeps a register of appointed SDMs. Any person can request information in the register and must pay the appropriate fees. This register includes:

  • The name of the vulnerable person;
  • The name and contact information for the SDM;
  • The date and duration of the appointment; and
  • The SDM’s decision-making powers, scope of the powers, and conditions of appointment.[167]

Appointing an SDM

The Vulnerable Persons Living with a Mental Disability Act outlines the requirements for getting a SDM appointed for a vulnerable person. A vulnerable person refers to an adult living with a mental disability which manifested before the age of 18 and who needs assistance with basic needs.

Any person can request the VPC appoint an SDM for a vulnerable person who needs an SDM to make property or personal care decisions for them.[168]

For the VPC to appoint a SDM for property, the adult must be incapable of managing their own property by themselves or with the involvement of a support network. The appointment of an SDM must also be “reasonable in the circumstances”. [169] A person is considered incapable of managing their own property if they are:

  • Unable to understand information that is relevant to such decision-making; or
  • Unable to appreciate the consequences of making or not making a decision.[170]

When an application for an SDM is made, the VPC will investigate whether:

  • The person is a vulnerable person;
  • Reasonable efforts have been made to involve the person’s support network (if any);
  • The person is incapable of managing their property by themselves or with the involvement of a support network; and
  • The person needs an SDM to make decisions with respect to their property.[171]

After the investigation, the VPC can:

  • Dismiss the application if the person is not a vulnerable person;
  • Involve the person’s support network to help them;
  • Create a plan for the vulnerable person; or
  • Refer the matter to a hearing panel, if all the criteria for appointing an SDM have been met.[172]

The hearing panel makes recommendations as to whether the criteria for appointing an SDM have been met. If so, it also makes recommendations on:

  • Who the SDM should be;
  • What powers they should have; and
  • What the duration of the appointment should be; and
  • Whether any terms should apply to the appointment.

After considering such recommendations, the VPC may appoint an SDM for property.[173]

More than one SDM can be appointed, acting jointly or through another arrangement.[174] The PGT can be appointed as SDM for property.[175]

Powers of an SDM

The Vulnerable Persons Living with a Mental Disability Act sets out a list of the powers that the VPC may grant to the SDM:

  • Deal with personal and real property, including purchasing, selling, or encumbering;
  • Grant or end a lease;
  • Manage and invest money;
  • Manage negotiable instruments and securities;
  • Carry on the vulnerable person’s business or trade;
  • Manage claims relating to property;
  • Make gifts, donations, or loans;
  • Manage debts; or
  • Any other powers the VPC feels are necessary.[176]

The VPC can impose conditions and terms for the SDM’s appointment and may require the SDM to post a bond or security.

An SDM’s appointment can be for up to five years.[177]

Duties of an SDM

An SDM has several duties and responsibilities under the Act, including:

  • Perform their fiduciary duties;
  • Comply with the terms and conditions of their appointment;
  • Act “diligently, with honest and integrity and in good faith, for the benefit of the vulnerable person”;
  • Keep accounts of transactions;
  • Foster the vulnerable person’s independence;
  • Encourage the vulnerable person to participate in property decisions;
  • Consider the vulnerable person’s wishes, values, and beliefs, and act in their best interests;
  • “Exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs”
  • Make payments necessary for the vulnerable person’s support, education, and care;
  • Take into account the vulnerable person’s usual standard of living;
  • Within six months of appointment, file an inventory of the vulnerable person’s property; and
  • File accounts with the VPC when requested.[178]

Emergency SDM appointments

If a vulnerable person does not have an SDM and is there is immediate danger of death, serious harm to their person, or serious loss to their property, a person can apply to have the VPC appoint an emergency SDM. This process does not require a hearing.

  • Emergency appointment
  • 120(3) On receiving an application or on his or her own initiative, the commissioner may appoint an emergency substitute decision maker for personal care or for property if the commissioner determines that
    • (a) there is immediate danger of death or serious harm or deterioration to the physical or mental health of the person, or of serious loss to his or her property;
    • (b) the person for whom the application is made
    • (i) is a vulnerable person,
      • (ii) is incapable of personal care or of managing his or her property, and
      • (iii) needs decisions to be made on his or her behalf on an emergency basis to prevent the danger described in clause (a); and
    • (c) prompt action is required in view of the nature and urgency of the situation.[179]

If a vulnerable person has an SDM who has acted improperly or in breach of the Act or the terms of their appointment, and there is immediate danger of death or serious harm to their person, or serious loss to their property, a person can apply to the VPC to have the SDM appointment suspended and have a temporary SDM appointed. This process does not require a hearing.

  • Suspension and temporary appointment
  • 123(3) On receiving an application or on his or her own initiative, the commissioner may suspend the appointment of a substitute decision maker and appoint a temporary substitute decision maker if the commissioner determines that
    • (a) there is an immediate danger of death or serious harm to, or deterioration in, the physical or mental health of a person who continues to be a vulnerable person, or of serious loss to that person’s property;
    • (b) the substitute decision maker
      • (i) has failed to act in accordance with this Act or the terms and conditions of the appointment, or
      • (ii) has acted in an improper manner or in a manner that has endangered or may endanger the well-being or property of the vulnerable person;
    • (c) prompt action is required in view of the nature and urgency of the situation; and
    • (d) the vulnerable person needs decisions to be made on his or her behalf to prevent the danger described in clause (a).[180]

Similarly, if a vulnerable person has an SDM and is in immediate danger of death or serious harm to their person, or serious loss to their property, a person can apply to the VPC to have the SDM appointment varied. This process does not require a hearing.

  • Emergency variation of appointment
  • 126(3) On receiving an application or on his or her own initiative, the commissioner may, on an emergency basis, vary the appointment of a substitute decision maker if the commissioner determines that
    • (a) there is an immediate danger of death or serious harm to, or deterioration in, the physical or mental health of the vulnerable person, or of serious loss to his or her property; and
    • (b) prompt action is required to protect the person or property in view of the nature and urgency of the matter.[181]

Any person can apply to the VPC to have an SDM appointment terminated, replaced, or varied. The VPC can send the matter to a hearing panel to get their recommendations.[182]

Terminating an SDM

The VPC can terminate an SDM appointment if the criteria for appointing a SDM are no longer met, or if the SDM:

  • Cannot or will not act;
  • Has breached the Act or the terms or conditions of their appointment;
  • Has endangered or may endanger the vulnerable person’s well-being or property; or
  • Is no longer suitable to be the SDM.[183]

The VPC can appoint a replacement SDM if the current SDM’s appointment has been terminated under section 136, or if the SDM has died and there is no joint or alternative SDM.[184] The VPC can vary the SDM appointment in several ways, including by varying:

  • The powers or duties of the SDM;
  • The terms and conditions of the appointment;
  • The duration of the appointment; or
  • Who the alternate SDMs are.[185]

The VPC can reappoint an SDM after their term has ended. A review must happen before the SDM is reappointed to determine whether:

  • The criteria for appointment are still met;
  • The existing SDM is still the most appropriate SDM;
  • An additional or alternative SDM should be chosen; and
  • The powers, terms or conditions of the appointment should be varied.[186]

10. Employment Protections

10.1 Whistleblower protections

Under The Protection for Persons in Care Act, the operator of a health facility cannot take adverse employment action against a service provider who reports the abuse or neglect of a patient in good faith.

  • Adverse employment action prohibited
  • 11(1) No operator of a health facility shall take adverse employment action against a service provider of the facility because that person made a report of abuse or neglect in good faith under this Act.[187]

Under The Vulnerable Persons Living with a Mental Disability Act a person cannot have adverse employment action taken against them for reporting the abuse or neglect of a vulnerable person in good faith.

  • Adverse employment action prohibited
  • 21.2 No person shall dismiss, suspend, demote, discipline, harass, interfere with or otherwise disadvantage a person who makes a report under section 21.[188]

10.2 Statutory employment leave

Under The Employment Standards Code,[189] an employee may be eligible for interpersonal violence leave if they or a dependant have experienced:

  • Domestic violence;
  • Stalking; or
  • Any act targeting their sexuality, gender identity, or gender expression.[190]

Domestic violence has the same definition as in The Domestic Violence and Stalking Act (see section 8).[191] A dependant includes the employee’s child and any person the employee is providing day-to-day care to due to illness, disability, or any other reason.[192]

The purpose of taking leave must be to obtain services the employee needs, including medical care, victim services, counselling, housing, legal advice, or criminal remedies.[193] To be eligible for the leave, the employee must have been working for their employer for at least 90 days.[194]

An eligible employee can take leave of up to ten days.[195] The employee can take the full leave at one time or in single day increments.[196] The employee can also take leave of up to 17 weeks, taken in one continuous period.[197] The first five days of leave taken in a calendar year are paid.[198]

Employees must give their employers as much notice as is reasonable.[199] For paid leave, the employee must give their employer proof of why they are taking the leave.[200] For unpaid leave, the employee only needs to provide such proof if required by the employer.[201]

11. Income Assistance, Abuse, and Immigration Sponsorship Policy

The Employment and Income Assistance Administrative Manual[202] sets out the administrative policies for employment and income assistance (EIA).

If a person is fleeing abuse and is staying at an approved crisis intervention facility, they can apply for income assistance. To qualify, the person must be accepted into a crisis intervention facility (such as a transition house) and be in financial need. The financial need calculation will be done based only on the resources the person has accessible to them at the time of being at the facility, and only the resources the person can access without putting themselves in harm. The person can receive income assistance for the entire duration of their stay, up to 30 days. The time can be extended by approval of the director.[203]

When the person is leaving the crisis intervention facility, they would have to apply for EIA under the normal eligibility requirements. While the person is at the crisis intervention facility, they do not have to meet the employment expectations. When the person leaves the facility, employability will be assessed, but the employment expectations can be deferred if it is appropriate.[204]

If a person is 65 or older and cannot earn enough sufficient income due to their age, they can apply for income assistance. Older adults in this category are exempt from the employment requirements.[205]

If a sponsored immigrant applies for EIA benefits, the normal procedure is to determine why a sponsored person needs assistance and contact the defaulting sponsor. The EIA administrators would try to recover the amount of EIA payments from the defaulting sponsor. However, if contacting the sponsor would lead to risk of harm to the applicant or their family, the requirement to contact the sponsor can be deferred. EIA benefits can be approved when the sponsor is unable or unwilling to provide for the applicant. A sponsor would be considered unwilling to provide support if family violence is occurring and it is unsafe for the applicant to be in contact with the sponsor.[206]

12. Key Contacts

Reporting Elder Abuse

Protection for Persons in Care Office

To report suspected abuse or neglect of an adult living in a personal care home, hospital, or other designated health facility, call the PPCO’s confidential, toll-free line: 1-866-440-6366 (outside Winnipeg) or 204-788-6366 in Winnipeg

Address:
300 Carlton Street
Winnipeg MB R3B 3M9

Office of the Vulnerable Persons’ Commissioner

To obtain information about the substitute decision-making provisions or The Vulnerable Persons Living with a Mental Disability Act, or inquire as to whether a vulnerable person has an appointed substitute decision maker, contact:

315-258 Portage Avenue
Winnipeg, Manitoba R3C 0B6

Public Guardian and Trustee

Winnipeg Office:
Suite 500 – 155 Carlton Street
Winnipeg MB
R3C 5R9

Brandon Office:
340 – 9th Street, Rm. 131
Brandon MB R7A 6C2

Government Agencies

Seniors Abuse Support Line

The Seniors Abuse Support Line can provide information, referral and support 24 hours, seven days a week.

Province-wide Domestic Violence Crisis and Information Line

For confidential information and help, call the 24-hour line at 1-877-977-0007

Legal Aid Manitoba

Website: www.legalaid.mb.ca/

Brandon Area Office – Brandon
236 – 11th Street Brandon, MB R7A 4J6

Northern Area Office – The Pas
P.O. Box 4062 1 – 236 Edwards Avenue The Pas, MB R9A 1S6

Northern Area Office – Thompson
2nd Floor, 3 Station Road Thompson, MB R8N 0N3

Parklands Area Office – Dauphin
138 1st Avenue S.W., Unit A Dauphin, MB R7N 1S2

Victims Services

For more information about Manitoba Justice – Victim Services, visit: www.gov.mb.ca/justice/victims/index.html or contact the near office:

Manitoba Seniors and Healthy Aging Secretariat

The Seniors and Healthy Aging Secretariat is part of the department of Health, Healthy Living and Seniors. The Secretariat works with all departments to create an environment within Manitoba that promotes health, independence, and well-being of all older Manitobans.

Seniors Information Line

Community Organizations

Age & Opportunity (Support Services for Older Adults)

Confidential consultation, assessment, and counselling services are provided to seniors who are victims of abuse.

Prevent Elder Abuse Manitoba

PEAM acts as a central point of contact to raise awareness of elder abuse in Manitoba

720 Henderson Highway
Winnipeg, MB R2K 0Z5
Phone: 204-669-7531
Fax: 204-661-0750
Website: www.weaadmanitoba.ca/peam/

References

[1] The Vulnerable Persons Living with a Mental Disability Act, CCSM c V90 [VPLMDA].

[2] Vulnerable Person Living with a Mental Disability Regulation, Man Reg 208/96 [Man Reg 208].

[3] The Protection for Persons in Care Act, CCSM c P144 [PPCA]

[4] Adult Abuse Registry Regulation, Man Reg 164/2012 [Man Reg 164].

[5] Mental Health Act, CCSM c M110 [MHA].

[6] The Regulated Health Professions Act, CCSM c R11, [RHPA].

[7] The Chiropractic Act, CCSM c C100, [CA].

[8] The Dental Hygienists Act, CCSM c D34, [DHA].

[9] The Dental Association Act, CCSM c D30, [DAA].

[10] The Denturists Act, CCSM c D35, [DA].

[11] The Licensed Practical Nurses Act, CCSM c L125, [LPNA].

[12] The Medical Laboratory Technologists Act, CCSM c M100, [MLTA].

[13] The Midwifery Act, CCSM c M125, [MA].

[14] The Naturopathic Act, CCSM c N80, [NA].

[15] The Occupational Therapists Act, CCSM c O5, [OTA].

[16] The Opticians Act, CCSM c O60, [TOA].

[17] Optometry Act, CCSM c O70 [OP].

[18] The Pharmaceutical Act, CCSM c P60, [PA].

[19] The Physiotherapists Act, CCSM c P65, [TPA].

[20] The Podiatrists Act, CCSM c P93 [TPA 2].

[21] The Psychologists Registration Act, CCSM c P190, [PRA].

[22] The Registered Dietitians Act, CCSM c R39, [RDA].

[23] The Registered Psychiatric Nurses Act, CCSM c R45, [RPNA].

[24] The Registered Respiratory Therapists Act, CCSM c R115, [RRTA].

[25] The Domestic Violence and Stalking Act, CCSM c D93, [DVSA].

[26] The Victims’ Bill of Rights, CCSM c V55, [VBR].

[27] The Powers of Attorney Act, CCSM c P97, [POAA].

[28] The Public Guardian and Trustee Act, CCSM c P205, [PGTA].

[29] The Freedom of Information and Protection of Privacy Act, CCSM c F175, [FOIPPA].

[30] The Personal Health Information Act, CCSM c P33.5, [PHIA].

[31] The Employment Standards Code, CCSM c E110, [ESC].

[32] PPCA, supra note 3.

[33] Ibid, s 1, 2.

[34] Ibid,s 2.

[35] Ibid,s 1.

[36] Ibid.

[37] Ibid.

[38] Ibid, ss 3-4.

[39] Ibid, s 3.

[40] PPCA, supra note 3, ss 1(1) and 13; Personal Care Homes Designation Regulation, Man Reg 108/2000.

[41] bid, ss1(1).

[42] Ibid, ss 10-11.

[43] Ibid.

[44] Ibid, s 5; Manitoba, Health, Seniors and Active Living, “Protection for Persons in Care”, online: <www.gov.mb.ca/health/protection/>.

[45] PPCA, supra note 3, s 6.

[46] Ibid, s 7.

[47] Ibid, s 8.

[48] Ibid, s 8.1.

[49] Ibid, s 8.2; Man Reg 164, supra note 4, s 3.

[50] PPCA, supra note 3, s 9.

[51] Ibid, s 12.

[52] Man Reg 164, supra note 4, s 1.

[53] Ibid, s 22.

[54] Ibid, ss 26-31(1).

[55] Ibid, s 34.

[56] Ibid, s 35.

[57] VPLMDA, supra note 1.

[58] Ibid, s 1.

[59] Ibid, preamble.

[60] Ibid, s 1.

[61] Ibid, s 20.2.

[62] Ibid, s 21.

[63] Ibid, s 21.1, 21.2.

[64] Ibid, s 22.

[65] Ibid, ss 22, 23,

[66] Ibid, s 25.

[67] Ibid, s 25.2.

[68] Ibid, s 25.3.

[69] Ibid, s 25.1.

[70] Ibid, s 26(1).

[71] Ibid, s 26,

[72] Ibid, ss 26(4), 27, 28.

[73] RHPA, supra note 6.

[74] Ibid.

[75] Ibid, s 138.

[76] Ibid, s 90.

[77] Ibid, s 91.

[78] Ibid, s 96.

[79] Ibid, s 101, 102.

[80] Ibid, s 114, 122.

[81] Ibid, ss 126, 127.

[82] PPCA, supra note 3,s 11.1.

[83] Ibid.

[84] Ibid, s 3.

[85] Ibid, s 3.

[86] VPLMDA, supra note 1,ss 21, 24.

[87] FOIPPA, supra note 29,ss 2-4.

[88] PHIA, supra note 30, ss 2-3.

[89] FOIPPA, supra note 29, s 37(2).

[90] Ibid, ss 43, 44.

[91] Ibid, s 44(1)(l).

[92] Ibid, s 44(1)(p).

[93] Ibid, s 44(1)(r).

[94] Ibid, s 44(1)(d), (e).

[95] PHIA, supra note 29,s 15.

[96] Ibid, ss 21.

[97] Ibid, s 22(2)(b).                 

[98] Ibid, s 22(2)(a), (e), (g), (g.1), (h)

[99] Ibid, s 22(2)(c).

[100] Ibid, s 22(2)(e).

[101] Ibid, s 22(2)(k.1), (l), (l.1).

[102] Ibid, s 22(2)(o).

[103] Descôteaux v Mierzwinski, [1982] 1 SCR 860 at 870–876, 141 DLR (3d) 590 [Descôteaux cited to SCR].

[104] Smith v Jones, [1999] 1 SCR 455 at para 35, 169 DLR (4th) 385, [Smith cited to SCR].

[105] R. v. McClure, [2001] S.C.R. 445, [McClure cited to SCR].

[106] Law Society of Manitoba, Code of Professional Conduct, Winnipeg, Law Society of Manitoba, online: <lawsociety.mb.ca/regulation/act-rules-code/code-of-professional-conduct/>.

[107] Ibid, s 3.3-1.

[108] Ibid, ss 3.3-3, 3.3-3A, 3.3-3B.

[109] Manitoba, Department of Justice, Prosecution Policies (Winnipeg: Manitoba Justice), online: <www.gov.mb.ca/justice/crown/prosecutions/policy.html>.

[110] Ibid, at “Restorative Justice and Diversion”, Guideline 5: COM 1.1 (May 2015).

[111] Ibid, at “Mentally Disordered and Cognitively Impaired Offenders”, Guideline 2: MEN 1 (May 2015).

[112] Ibid, at “Domestic Violence”, Guideline 2: DOM 1 (November 2015).

[113] VBR, supra note 26.

[114] Ibid, ss 2-29.

[115] Ibid, ss 46-47.

[116] Ibid, ss 48.1, 48.2.

[117] DVSA, supra note 25.

[118] Ibid, s 2(1.1).

[119] Ibid, s 2(1).

[120] Ibid, s 2(2).

[121] Ibid, s 6.

[122] Ibid, s 6.1(1).

[123] Ibid, s 6.1(3).

[124] Ibid, s 8.1.

[125] Ibid, s 4(2); “Protection Orders”, online: Manitoba <www.gov.mb.ca/familylaw/safety/protection-orders.html>.

[126] Ibid, s 4(5).

[127] Ibid, s 7.

[128] Ibid, s 14.

[129] Ibid, ss 14, 15.

[130] Ibid, ss 20, 21.

[131] POAA, supra note 27.

[132] Ibid, s 6.

[133] Ibid, s 10.

[134] Ibid, s 12.

[135] Ibid, ss 17, 18.

[136] Ibid, s 18.

[137] Ibid, ss 19(2), 19(3).

[138] Ibid, s 19.

[139] Ibid, s 22.

[140] Ibid, s 13.

[141] Ibid, s 14.

[142] Ibid, s 24.

[143] MHA, supra note 5, ss 71, 75.

[144] Ibid, ss 71, 75.

[145] Ibid, s 77; Public Guardian and Trustee of Manitoba, “Committeeship: A guidebook for Court Appointed , Committees” (October 2014) at 11, online(pdf): <www.gov.mb.ca/publictrustee/pdf/committeeship_guidebook.pdf>.

[146] MHA, supra note 5,ss 78, 80.

[147] Ibid, s 81.

[148] Ibid, s 83., 88.

[149] Ibid, ss 83, 84, 85

[150] Ibid, ss 89, 90, 91.

[151] Ibid, ss 94, 95, 96.

[152] Ibid, s 101(1).

[153] Ibid, s 102.

[154] Ibid, s 104.

[155] Ibid, s 105.

[156] Ibid.

[157] Ibid, s 63.

[158] Ibid, s 60; “Chief Provincial Psychiatrist/Director of Psychiatric Services”, online: Manitoba <www.gov.mb.ca/health/cpp.html>.

[159] Ibid, s 60.

[160] Ibid, s 61.

[161] Ibid, s 67.

[162] Ibid, s 61(7).

[163] Ibid, s 64.

[164] Ibid, ss 62, 62.1, 66.

[165] Ibid, s 62, 62.1.

[166] VPLMDA, supra note 1,s 30.

[167] Ibid, s 33.

[168] Ibid, s 82.

[169] Ibid, s 88.

[170] Ibid, s 81.

[171] Ibid, s 84.

[172] Ibid, ss 84, 85.

[173] Ibid, ss 87, 88.

[174] Ibid, ss 87-88, 90.

[175] Ibid, s 89(1)(c).

[176] Ibid, s 92(2).

[177] Ibid, s 92.

[178] Ibid, ss 98-106, 108.

[179] Ibid, s 120.

[180] Ibid, s 123.

[181] Ibid, s 126.

[182] Ibid, s 130, 133-134.

[183] Ibid, s 136.

[184] Ibid, s 137.

[185] Ibid, s 139.

[186] Ibid, s 140.

[187] PPCA, supra note 3,s 11.

[188] VPLMDA, supra note 1,s 21.2.

[189] ESC, supra note 31.

[190] Ibid, s 59.11(1).

[191] Ibid.

[192] Ibid.

[193] Ibid, s 59.11(3).

[194] Ibid, s 59.11(2).

[195] Ibid, s 59.11(2.1).

[196] Ibid.

[197] Ibid

[198] Ibid, s 59.11(5).

[199] Ibid, s 59.11(9).

[200] Ibid, s 59.11(11).

[201] Ibid, s 59.11(12).

[202] Manitoba, Department of Families, EIA Administrative Manual, online: <www.gov.mb.ca/fs/eia_manual/index.html>.

[203] Ibid, at “Section 9 – Special Cases (Including Minors) and Crisis Intervention Facilities”.

[204] Ibid.

[205] Ibid, at “Section 12 – Aged; Blind and Persons with Disabilities; Assistance to Children with Mental Disabilities”.

[206] Ibid, at “Section 13 – Treaty Indians, Non-Indians on Reserves, Immigrants, Religious Orders”; Manitoba, Directive #93-47: Applications from Sponsored Immigrants (30 November 1993), online(pdf): <www.gov.mb.ca/fs/eia_manual/pubs/13.3.1_93-47applications-sponsored_immigrants.pdf>.

 

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