Shirley Shane loses appeal, figuring out next step

Shirley Shane’s slip on an icy Halifax sidewalk left her with a permanent ankle injury.

With her most recent appeal dismissed, she is unsure of where to go next.

“This is a precedent-setting case. They (the defendant) want to make an example of me to deter people from suing when they slip and fall,” she said.

Shane was walking on Hollis St. to work on Jan. 7, 2008 when the accident occurred.

She was wearing “good winter boots”, and couldn’t believe it when her legs went out from underneath her.

“I went down on my back and my foot turned out 180 degrees,” said Shane.

She was taken to hospital, where she had screws and plates put into her ankle.

She spent eight weeks off the job in a cervical cast and she had to slowly ease back into walking.

“I went from a wheelchair to crutches to a cane,” she said. She still has a limp and ongoing pain. She has developed arthritis in her knees.

In the Dec. 17, 2010 decision from the Supreme Court of Nova Scotia, the company that maintained the parking lot adjacent to the sidewalk was rejected in their pursuit of a summary judgement dismissal.

They admitted “there was ice present on the sidewalk” where Shane slipped.

The company, recognized as 3104854 Nova Scotia Limited in the court documents, is an offshoot of Greater Homes Incorporated, according to Shane’s lawyer Michael Dull.

Those are two of many companies owned by the Saberi brothers Navid and Saeid, who often find themselves in the news as of late. Navid is also president and director of the numbered company in the lawsuit.

Greater Homes Inc., the company Dull mentioned, has since been closed for non-payment, and became Greater Homes Realty Inc. Saeid was president and director of the first company, with Navid taking over the second one.

Saeid Saberi never returned calls for comment on the case, nor did the lawyers for the defendant.

“Big business means big money. That’s what I’m up against,” said Shane.

The supreme court document states the sidewalk has been under municipal jurisdiction since 2006, so the company didn’t think they were responsible for “removal of snow, or ice, or spreading salt or sand.”

Dull, working for Wagners Law, said HRM’s only responsibility was to “plow 24 to 48 hours after a snow event.”

“They did that … We could sue if they had a policy and didn’t follow it. But they don’t have a responsibility under their policy to clear ice from the sidewalk.”

The judge said an exception to the fact that municipalities are responsible for sidewalks is that if conditions of their property “flow off and cause injury to persons nearby.”

The judge found enough evidence to send the case to trial.

Co-worker Jason Salis said he found Shane “lying on the sidewalk.” He had often seen ice on the sidewalk before.

“He had formed the habit of crossing the street to avoid the area,” said the Supreme Court Decision.

Employee for the defendant, Philip White, said he salted the parking lot “in its entirety, seeing no snow to remove.”

There was agreement the lot was “at a higher elevation than the adjacent sidewalk,” and pooling of water could occur on the sidewalk, though White saw none.

Shane tried to use the dismissal of the previous motion to prove her case, but the court was not in agreement.

Shane subsequently filed an appeal, decided on July 7, 2013.

She said in the court documents the previous judge “erred in law by failing to examine alternative theories of causation … to determine the probable cause of hazard.”

Her appeal ended the same way the court decision did; with a loss. Her “migration theory” for the water needed to be proven, and she failed to do that. But she is determined to find justice.

“This wasn’t caused by the city. It was caused by the fact the parking lot is on a steep incline, and they push snow to the top. It melts, comes to the sidewalk and freezes,” she said.

“I’m still struggling with the results of this injury, and I will the rest of my life.”

Canada’s corrections watchdog remains dismayed by the federal government’s inaction in dealing with offenders with serious mental health issues

Offender self-harm a growing concern

Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator, recently spoke out about the continuing lack of reform by Correctional Services Canada in properly addressing offender self-harm in federal penitentiaries.

Zinger echoed Correctional Investigator Howard Saper’s plea for reform at The Congress on Law and Mental Health in Amsterdam in July where he presented a paper about self-injury in Canadian federal correctional institutions.

Self-injurious behaviour includes the use of razors or other sharp objects for “cutting”, head-banging, self-strangulation and the ingestion or insertion of sharp objects into the body.

Mandate of the Correctional Investigator

The Office of the Correctional Investigator acts as an Ombudsman for federally sentenced offenders.  It represents, therefore, the interests of offenders who are serving a sentence of two years or more.

One of the Investigator’s mandates is to determine whether the Correctional Service of Canada is acting “fairly, reasonably and in compliance with law and policy” when dealing with offenders.  Importantly, the Correctional Investigator makes ongoing recommendations to ensure accountability in Canada’s federal penitentiaries.

In the fiscal year 2011-2012, the Correctional Investigator responded to 5.600 offender complaints and reviewed more than 140 deaths and incidents of serious bodily harm by inmates in the federal penitentiary system.

Self-harm among inmates in Canada

In his Annual Report to Parliament in October 2012, the Correctional Investigator notes that the inmate population across Canada has increased 3.7 per cent since March 2011.

The number of inmates participating in serious self-harm has tripled in the last five years.

Sapers is alarmed by the rapidly increasing rate of self-injury incidents in prisons in general and the the increasing number per offender in particular.

The number of self-harm incidents, compared to the number of inmates involved, rose from 261 per 160 inmates in 2003-2004 to a staggering 901 per 264 inmates in 2012-2013. 

Sixteen per cent of female offenders in medical or psychiatric cells were found to self-injure frequently, compared to seven per cent of male inmates.

Self-harm among women inmates rose from 43 in 2003-2004 to 323 in 2012-2013.

Position  of the Correctional Service of Canada

In Commissioner’s Directive 843 regarding the management of inmate self-injurious and suicidal behaviour, issued on July 21, 2011, the Commissioner of the Correctional Service of Canada states that the policy objective of the Service, when faced with issues of self-harm, is to “ensure the safety of inmates who are self-injurious or suicidal using the least restrictive measures for the purpose of preserving life and preventing serious bodily injury, while maintaining the dignity of the inmate in a sale and secure environment.

The Directive also calls for the immediate transfer of mentally ill inmates to regional treatment centres or appropriate health care facilities if required mental health assessments cannot be facilitated in the regular prison environment.

The Directive also encourages and supports “an interdisciplinary approach so that the inmate can resume regular activities as soon as possible”.

Saper, however, does not believe this directive is being followed consistently in federal penitentiaries across Canada

Recommendations of the Correctional Investigator

Sapers notes that a disproportionate number of self-harm incidents occur when inmates are kept in segregation, forensic psychiatric centres and maximum security institutions where the use of force and physical restraint is often employed to manage self-injurious offenders.

Sapers recommends in his latest annual report that there be an absolute prohibition on the practice of placing mentally ill offenders and those at risk of suicide or serious self-injury in long term segregation.

Sapers stresses that self-injury cases need to be managed as mental health issues and not primarily as security incidents.  He pleads for Correctional Services Canada to expand the use of alternative mental health delivery options, recognizing that a federal institution is not the appropriate place for treating complex cases of self-injury. 

Canada’s first forensic padded cell

Sapers is especially alarmed by the fact that the first padded cell in a forensic facility in Canada was constructed at the Saskatoon Regional Psychiatric Centre in March of 2011.   

The cell was specially built by Correctional Services Canada to accommodate one particular female who engages in chronic self-injury by head-banging.  

In addition to its barren rubberized walls, the space has a primitive grate in its floor, in place of a normal prison toilet.

Corrections Canada maintains the cell was built “for therapeutic reasons” to provide management with the least restrictive environment to address self-injury, and that it was created on the advice of an unnamed internationally-recognized forensic psychiatrist.

To date, the cell has not been occupied and Sapers hopes this fact means that Correctional Services Canada has determined it to be “inappropriate.”   

In Recommendation 16 of his report, Sapers calls for an absolute prohibition of padded cells in all Correctional Services of Canada treatment facilities, stating bluntly that “there is no role for a padded cell in a correctional facility”.

He also notes that the use of padded cells require full-time medical supervision and are controversial even in a mental health setting where the first responders are health care professionals and placement decisions are made exclusively by health care providers.

Self-harm in the spotlight

The issues of self-harm and the treatment of mental health in federal correctional institutions has become prominent in light of the current inquiry into the death of 19 year-old Ashley Smith while in custody at Joliette Federal Institution in 2007.

Of particular concern to the Smith inquiry is the fact that the persons in authority at the Institution who were making daily decisions affecting the mental health and physical well-being of female inmates such as Ashley Smith, had virtually no training in the areas of risk assessment and treatment of offenders with mental health problems – especially those involving serious self-injury.

The program designed to help people affected by Canada’s 7.1 per cent total unemployment rate is tightening its guidelines, according to a report from the federal government’s spending watchdog. While these guidelines are changing, government groups are developing new systems to try and find ways to prevent overpayment and fraud. More than $578 million in employment insurance over-payments or ineligible payments went out last year, and according to a recent report from the Auditor General of Canada, only about $295 million are anticipated in repayments.

The Department of Human Resources and Skills Development Canada (HRSDC) is responsible for employment insurance benefits and currently, they are working on a plan to not only get a return on over-payments already made, but also to prevent them in the future. Applicants receiving employment insurance receive 55 per cent of their yearly income, as determined by their records of employment.The former HRSDC minister and MP Diane Finley released the department’s plans for reform in April of this year outlining how the program will continue to improve its efficiency and timeliness when granting EI benefits to applicants in need.

Currently, over-payments account for about 5 per cent of all of the funds that employment insurance puts out throughout the year, with a total spend of $16.8 billion in benefits payments in the 2011-2012 year. In order to lessen potential loss to Employment insurance benefits, Auditor General Michael Ferguson, asks the department to use more of its available information to help in identifying over-payments.

The priority of the Human Resources and Skills Development department is to continue to offer relief to people affected by unemployment, with efforts focusing on limiting the chance for over-payments and fraud.

Investigator manual leaked

After a manual for investigators of EI responsible for detecting fraud was leaked in February, Finley faced questioning in the House of Commons, stating that what were reported as quotas to find $500,000 in fraud payments detected annually, were only targets. Since the leak, the NDP has been arguing against the Conservative methods of finding ineligible EI claims, stating that the audits as part of a new pilot program to seek out fraud including knocking on doors and checking personal documents. This pilot program has been met with a lot of scrutiny from government opposition as well as from Canadians. The program is not confirmed by the government and is not outlined in the HRDSC’s plan for reform. “The Conservatives have launched a witch-hunt against unemployed Canadians – sending EI inspectors on house calls and forcing investigators to meet quotas for cutting people off of their benefits,” said Heather Finn, a spokesperson for MP Chris Charlton.

Part of the new plans for the development of the program is focusing efforts on detecting and preventing fraud, while still providing benefits to those in need. As the NDP and the Conservatives argue over what is fraud and what is a mistake, it shows that the system for paying EI benefits is not perfect yet. While the NDP insist that providing staff to help applicants fill out paperwork correctly is the answer, the Conservatives are cutting staff and moving employment records online.

Workforce under change

In a March 4th, 2013 question period in the House of Commons, MP Diane Finley told the Speaker of the House about Service Canada’s responsibility to stop any and all irresponsible claims. Also in her 2013-14 report plan outline, the importance of efficiency and fast response to claims is outlined, but as of May 31, 2013 the government issued notices that 21,734 members of the Public Service Alliance of Canada that they might lose their jobs in the next three years. The Conservative party is continuing in efforts to make faster approval of employment insurance applications, while also catching over-payments and fraud before they can happen. At the same time, they are investing in a computer-based approval system, to streamline the process and put out more resources without having to hire on more staff.

3863 of the public service workers that were issued work force amendment notices were employees in the Human Resources and Skills Development department. “The Department (HRDSC) is the hardest hit by ‘affected’ notices with 3863 positions potentially on the block,” said Heather Finn via email.

Technological Improvements

Technology is a big part of the department’s moves to online, and faster response time, with new system to be used by both employers and employees. The audit report shows that the department already uses automated programs, and with the new online format, more information will be available for assessments. At the moment, no new information is available about the status of employment insurance or the department since May 31, but according to Heather Finn, cuts to processing staff has slowed down the processing of EI claims.

Diane Finley’s office was unavailable for reply, but in the HRDSC’s report for the coming year, a new automated system of processing applications is discussed. The system will take the employment records necessary for an online EI claim, and use it to help employers keep more accurate records of their weekly payroll and employee hours. The plan for the improvements to be made to the department is estimated for June 30, 2014.

The Ontario government has yet to address ‘overspending’ on services for troubled teens.  According to the most recent auditor general’s report, spending by the Ministry of Children and Youth Services has increased by 30 per cent in the past five years, but the number of youth helped has only gone up by 5 per cent.

Unjust distribution of funds

The Ministry of Children and Youth Services aims to help youth integrate into their communities and turn away from crime. They offer a variety of services from summer job search workshops to drug counseling to detention centers for youth in trouble with the law. The programs are offered at several different centers across the province. Some of the centers are directly operated by the ministry while others are given government funding but operated independently, the latter are called transfer-payment centers.

Both the government centers and those that are independent are authorized to offer the same programming.  The programs requiring the most staff are the secure residential programs. The staff working in these programs take care of teens who are in trouble with the law and need to be watched 24 hours a day. The secure services are operated in the same way in both government and independent centers. However the ministry directly operates two thirds of the secure residential beds, yet it receives three-quarters of the government funding in this area. This means that the transfer-payment centers are working with less money to provide the same services

That isn’t the only area where there is a discrepancy in funds. There are no standard procedures for how funding for a program is decided. If there were, it would be easy to decide how much money to give a center, they would know how much it cost per youth per day per program, and then they would multiply this number by the number of youth in a program to show how much money they need form the ministry. Instead, the ministry decides funding on a case by case basis. This leaves funds being divided unjustly. For example, the ministry approved $107,000 in funding for a program at one center and gave another center $165,000 for running to exact same program for the same number of youth.
 

Facilities are underused and overstaffed

The report also found that only 60 per cent of the secure beds available are being used. Staff levels should reflect this, but instead all facilities are staffed as if they are at capacity. The centers actually now spend 50 per cent more on staff than they did five years ago. The auditor general attempted to find a reason for this by inspecting the workload of the staff. The auditor discovered that staff were actually taking on fewer cases. This means that while the amount spent on staff and the number of staff increased, the amount of work each person does has decreased.

In its plans for 2011/12, the Ontario government stated that it would continue to fund thousands of secure beds in the residential programs. There is no mention of the successes or shortcomings of the program in the previous year(s). Shortly after this briefing was released, the auditor general found that the number of beds, staff, and even centers, were potentially unnecessary.

Recommendations received, no changes yet

The ministry of youth services is divided into four regions. Randy Sandvick is the regional manager of youth services in the northern region. He explained that it is a positive sign that fewer youth are using the programs because it means they are committing fewer crimes. When asked about the reason for the staff increase, he said that the ministry is offering more programs. He emphasized that the ministry is using innovative programs to help youth. This still does not address the need for extra staff, as the existing surplus staff were not transferred to these programs, instead new staff were hired. Sandvick refused to comment on whether there was too much or too little work for staff, instead he said that legislation requires each center to have a specific number of staff and that centers in his region follow this protocol. There has been no downsizing of staff or centers in Sandvick’s region in the past year.

The ministry accepted some of the auditor general’s suggestions. Primarily, the ministry agreed to perform a three-year study on the effectiveness of programs and to adjust funding accordingly. This report came out over six months ago and so far, the ministry has not made any changes. No facilities have been closed or downsized and rather than changing or eliminating some programs, the ministry has instead added more programs and staff. Taxpayer dollars are still being spent on half-empty facilities and employees that aren’t fulfilling minimum workload expectations.

Office of the Fire Marshal still requesting more staff for the future

The Office of the Fire Marshal wants more staff and resources to inspect schools and hospitals in the province, repeating a request first recommended by an Auditor General in 1987 to fix “unduly lengthy”  inspection wait times in schools.

Fire Marshal Harold Pothier’s office is finally caught up on an inspection backlog in hospitals and schools dating back to at least 2010. The office posted a list of schools to be inspected on their website in response to a 2011 Auditor General report that raised concerns about school inspection frequencies.

The report said the office wasn’t doing an adequate job “protecting the public from fire safety risks in buildings” and outlined 26 recommendations that needed to be addressed.

“Our biggest concern is getting resources and requirements to meet our action plan to go forward,” said Pothier. “(The staffing requests) are going through the process at this time. We wait to hear word from the province on a regular basis.”

The office was operating with 14 staff at the time of the audit, and had eight Deputy Fire Marshals in the field. Staffing changes were needed to fulfill the recommendations set out by the Auditor General.

“We now have 16 staff. We added two, and four staff members were also transferred to us from another division. Essentially, we raised our levels by six people,” said Pothier. He notes the number jumped from 14 to 16, and those four people were already in the department.

“We just saw a realigning of their duties,” he said.

They still have eight inspectors in the field, the same number as 2010. However, with one staff member working on the database full-time and other administrative duties taken off inspectors’ shoulders, they are able to focus more on inspections.

“It is much easier to meet our mandate now,” said Pothier.

Report put fire inspections under microscope

When the Office of the Fire Marshal came under scrutiny from the Auditor General, the report that followed outlined numerous problems, chief among them being the infrequency of building inspections and the lack of a reporting system for organizing what inspections were done and when.

“The Office of the Fire Marshal is not meeting minimum fire safety inspection frequencies specified in legislation,” the report said.

The minutes of a Jan. 2012 Public Accounts meeting in the legislature, which Pothier attended, show the challenges the office faced in regard to not keeping track of their inspections.

Associate Deputy Minister for the Department of Labour and Advanced Education Jeff Conrad said the Auditor General was left “in a difficult spot” when he did his audit.

“We are saying to him that we’ve been there … but there’s absolutely no proof. As I’ve said, certainly the … material that we’ve been able to find indicates that we’ve been in the facilities that we’re supposed to be in doing the work – not doing it as we’re supposed to do it, I will grant absolutely.”

Pothier was promoted to acting fire marshal in May 2010, and that position has since been made official.

He wouldn’t comment about the bookkeeping and backlogged inspections he observed before he became Fire Marshal, despite being the Deputy Fire Marshal since 1992 in the office at the time of the audit.

“I can only comment on my involvement directly. I took the position and met with the Department of Labour (and Advanced Education). We took on the firm commitment to deal with all the Auditor General’s recommendations at that time.”

Office is finally catching up

In the last three years, his office has inspected all backlogged hospitals and schools except one school district, which they hope to have finished by “early September.”

“This coming fall, we’ll commence our next cycle. We’re right on schedule,” said Pothier.

Of the 26 recommendations put forward between April 2009 and February 2013, the office has completed 14 as of June, according to their departmental update. The other 12 are listed as “works in progress,” but some significant recommendations still don’t have a permanent fix.

An interim system for tracking inspections is in place, but Pothier says the fire marshals and provincial government are still working on a “permanent database solution across government.”

The update document says a local Information Technology consultant has been “working on the database since Feb. 2012”, which the (Office of the Fire Marshal) is “implementing phase one of.”

Missed inspections, poor bookkeeping and a lack of basic guidelines were brought to light in the Auditor General’s report.

“We determined fire safety inspections are not taking place as required by legislation or policy,” the Auditor General report stated.

It also found “untimely reporting” of serious issues in buildings and “no evidence of follow-up” on problems they did end up finding.

Pothier says the biggest problem in his department was a “documentation issue.”

“We know the work was being done … But without a database or documentation, it was hard to argue what work was done and what wasn’t. We feel we can show what work is being done now.”

The department did have a database, called the Fire Department Management System, but it did not “capture important information on fire inspection and fire investigation activities.

The Fire Department Management System does not “include an inventory of all buildings requiring inspections by the Office of the Fire Marshal nor are all completed inspections and investigations recorded in the database,” the report said.

Staffing levels continue to be a concern

Pothier has more staff and is still asking for more, but staffing levels aren’t a new issue within the office.

Many of the issues that plagued the office in 1987, 2001 and 2010 were the same.

“The inspection intervals for school inspections … seem unduly lengthy. The Fire Marshal’s Office has not been able to carry out its inspections of hospitals within the frequency it would like,” said the report.

In 2001’s Auditor General report, there were still “numerous instances of noncompliance with public safety legislation” and the office was still “unable to comply with the frequency of inspections specified in legislation or policies.”

The perceived reasons for these issues was the “limited resources available to the Office.” The Auditor General recommended a need for more resources in 1987.

Robert Cormier was the fire marshal for the province for 16 years before his retirement in 2010.

“There was only one reason we had trouble, and that was a lack of resources,” he said.

“The municipalities refused to take responsibility for inspecting schools under the Fire Safety Act,” he said. Halifax is excluded, as they inspect their own schools.

That’s approximately 525 schools (to inspect), added to the other things that needed to be done … We had someone set specifically for inspecting schools and they couldn’t get it done.”

He cited travel distance, preparation for inspection, reports and office responsibilities as things that could suck up inspectors’ time.

“Without the adequate resources, you can’t carry out elevated inspections unless you’re incompetent in them. We had eight inspectors at that time with vacation time.

They also did fire investigations and had to log travel time … People don’t recognize the issues going into timing for people who have to carry out these activities.”

“I believe we were doing as good a job as anyone in this country with the resources we had.”

Cormier wouldn’t comment on whether he had ever asked the Department of Labour for more staff and resources.

“All I can say is there weren’t adequate resources to carry out the work in accordance with Auditor General called for in the reports.”

The Department of Labour wouldn’t comment on why staffing levels weren’t increased after the 1987 or 2001 reports.

“We can’t speak to why previous governments did or didn’t do things to implement the auditor general’s recommendations,” said Chrissy Matheson with the Department of Labour in an emailed statement.

“What I can say is when the province received the auditor general’s report in 2011, the importance of making changes to the system to protect the health and safety of Nova Scotians was recognized and understood.”

“This is not to say that the process has been seamless. There have been some challenges with changing technology and resources, and we are working through that and remain on track.”

Pothier is looking forward to the future of the Office of the Fire Marshal.

“We are taking a little more time to fulfill our documentation. Things are being overseen and put in a database, and things are flowing as we like to see it,” he said.

“I think the recommendations were a benefit and helped in our work process. They helped us move forward.”