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Long-Term Care Homes - Fixing Long-Term Care Homes Act (FLTCHA). The Ontario Health Coalition v. Ontario (Minister of Long-Term Care)
In The Ontario Health Coalition v. Ontario (Minister of Long-Term Care) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this from "the June 14, 2023 decision of the Minister of Long-Term Care (the “Minister”) to approve funding and undertake to issue a licence for a new 320 bed long-term care home in Pickering, Ontario".
Here the court reviews the FLTCA generally, and illustrates some procedures under the Fixing Long-Term Care Act, 2021 (FLTCA):[2] The Director of the Capital Planning Branch (the “Director”), the official in the Ministry appointed to exercise licensing related powers under Part VIII (Licensing) of the Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Schedule 1 (the “FLTCA”), gave the proponent of the new home, Southbridge Care Homes (“Southbridge”), a conditional undertaking to issue it a licence, subject to meeting applicable conditions.
[3] If the conditions are met and the licence is granted, Southbridge will be permitted to develop 320 beds in a new long-term care home, to be built on the site of the current Southbridge Orchard Villa Long-Term Care Home (“Orchard Villa”).
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[8] The Ministry of Long-Term Care has announced several calls for applications for long-term care bed allocations since 2018. Through those processes, the Ministry has issued tranches of funding for new and redeveloped beds in various parts of the province.
[9] Southbridge currently operates a long-term care home in Pickering called Orchard Villa. It seeks to build a new, larger long-term care home in Pickering.
[10] Pursuant to that goal, Southbridge applied for funding approval from the Minister in response to a call for applications in 2019 (the “2019 Application”). In its application, Southbridge sought funding approval for construction of a new long-term care home to replace its current, smaller home. The Minister approved that application in November 2020. That approval is not challenged in this Application.
[11] Southbridge applied for funding again in response to a call for applications in 2021 (the “2021 Application”), which was further revised in March 2023. That second application was for a larger number of new beds than were approved in 2020 and was considered under an updated capital funding policy.
[12] In relation to the 2021 Application, the Minister conducted two public consultations: one in July 2021 and another in October 2022. The Applicant Catherine Parkes made written submissions in each of these consultations. The other Applicant, Ontario Health Coalition, responded to the first consultation with a petition and made written submissions in the second consultation.
[13] That second funding application was given conditional approval on June 14, 2023, and the 2019 Application was set aside.
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Fixing Long-Term Care Act, 2021
[14] The licencing of long-term care homes in Ontario is governed by Part VIII of the FLTCA. Pursuant to s. 98 of the FLTCA, a licence is required to operate residential premises for persons requiring nursing care in Ontario except for premises regulated by other specified statutes. A licensee cannot not operate more beds in a long-term care home than are allowed under the licence: s. 107.
[15] As part of the licencing process, the Minister is required to determine whether or not there should be a long-term care home in a particular area, and how many long-term care beds should be in that area, by “considering what is in the public interest.” Section 99(1) of the FLTCA outlines the factors that the Minister should take into account. It provides:99 (1) Subject to subsection (2), the Minister shall determine whether or not there should be a long-term care home in an area, and how many long-term care home beds there should be in an area, by considering what is in the public interest, having taken into account,
(a) the long-term care home bed capacity that exists,
(i) in the area, or
(ii) in the area and any other area;
(b) the other facilities or services that are available,
(i) in the area, or
(ii) in the area and any other area;
(c) the current and predictable continuing demand for long-term care home beds,
(i) in the area, or
(ii) in the area and any other area;
(d) the funds available for long-term care homes in Ontario;
(e) any other matters that may be provided for in the regulations; and
(f) any other matters that the Minister considers to be relevant. [16] The Minister has the discretion to restrict who may be issued a licence based on her determination of the public interest. The Legislature has set out in s. 100(1) the factors the Minister must consider in her determination of the public interest for the purposes of that section:100 (1) The Minister may restrict who may be issued a licence based on what the Minister considers to be in the public interest, having taken into account,
(a) the effect that issuing the licence would have on the concentration of ownership, control or management of long-term care homes,
(i) in the area,
(ii) in the area and any other area, or
(iii) in Ontario;
(b) the effect that issuing the licence would have on the balance between non-profit and for-profit long-term care homes,
(i) in the area,
(ii) in the area and any other area, or
(iii) in Ontario; and
(c) any other matters that may be provided for in the regulations. [17] Section 101 of the FLTCA sets out the “limitations on eligibility for a licence”. It enumerates six factors for the Director to consider:101 (1) A person is only eligible to be issued a licence for a long-term care home if, in the Director’s opinion,
(a) the home and its operation would comply with this Act and the regulations and any other applicable Act, regulation or municipal by-law;
(b) where the home is subject to a development agreement, the home, or the beds that are subject to a development agreement, complies with, and will continue to comply with, the applicable design manual and any additional design requirements required under the development agreement;
(c) the past conduct relating to the operation of a long-term care home or any other matter or business of the following affords reasonable grounds to believe that the home will be operated in accordance with the law and with honesty and integrity:
(i) the person,
(ii) if the person is a corporation, the officers and directors of the corporation and any other person with a controlling interest in the corporation, and
(iii) if the person with a controlling interest referred to in subclause (ii) is a corporation, the officers and directors of that corporation;
(d) it has been demonstrated by the person that the person or, where the person is a corporation, its officers and directors and the persons with a controlling interest in it, is competent to operate a long-term care home in a responsible manner in accordance with this Act and the regulations and is in a position to furnish or provide the required services;
(e) the past conduct relating to the operation of a long-term care home or any other matter or business of the following affords reasonable grounds to believe that the home will not be operated in a manner that is prejudicial to the health, safety or welfare of its residents:
(i) the person,
(ii) if the person is a corporation, the officers and directors of the corporation and any other person with a controlling interest in the corporation, and
(iii) if the person with a controlling interest referred to in subclause (ii) is a corporation, the officers and directors of the corporation; and
(f) the person is not ineligible because of any other reason that may be provided for in the regulations. [18] If the Director decides that a person is not eligible to be issued a licence under s. 101(1), the Director must give that person reasons, and the person has the right to appeal the decision to the Health Services Appeal and Review Board.
[19] Section 102 of the FLTCA provides that “following a determination by the Minister or a decision of the Director”, the Director “may issue a licence for a long-term care home at the location specified in the licence subject to any restrictions under section 100 and subject to section 101”.
[20] Section 103 of the FLTCA provides that “following a determination by the Minister or a decision of the Director”, the Director “may, subject to any restrictions under section 100 and subject to section 101, give an undertaking to issue a licence to a person on condition that the person agrees to satisfy the specified conditions set out in the undertaking”. Pursuant to s. 103(7) of the FLTCA, the undertaking may be cancelled if the Director determines that any of the terms and conditions set out in the in the undertaking are not complied with.
[21] The Application in this case relates to an undertaking to issue a licence given pursuant to s. 103 of the FLTCA. That undertaking is subject to a number of conditions, and if the Director determines that any of the conditions are not complied with, the undertaking may be cancelled and the licence will not be issued.
[22] Finally, s. 109 of the FLTCA sets out a requirement for public consultation before issuing a licence or undertaking to issue a licence. Section 109 provides:109 (1) Subject to subsection (3), the Director shall consult the public before,
(a) issuing a licence for a new long-term care home under section 102;
(b) undertaking to issue a licence under section 103;
(c) transferring a licence, or beds under a licence, under section 108; or
(d) amending a licence to increase the number of beds or to extend the term of the licence under section 116.
(2) The Director may determine how public consultations under subsection (1) shall be conducted. [23] The Director is not required to consult the public if the Director has determined that public consultation is not warranted: s. 109(3).
The Consultation Process
[24] On May 4, 2021, the Director determined that public consultation was required in relation to any decision to undertake to issue a licence to Southbridge.
[25] Members of the public had an opportunity to present their views at a public meeting held by teleconference on July 15, 2021 and in writing. Catherine Parkes participated in the public meeting and subsequently submitted comments in writing to the Ministry. The OHC delivered a 44-page petition that was expressly referenced in the summary of public feedback prepared for the Director.
[26] In 2022, the Director held a further public consultation as a result of the proposed licence transfer necessary to enable a proposed change to Southbridge’s corporate composition (as a limited partnership). Members of the public had the opportunity to provide their views to the Ministry in writing. The Ministry received more than 200 written submissions, including submissions from Catherine Parkes and the OHC. Materials prepared for the Director and the Minister noted that public comment was mostly directed to “Orchard Villa’s performance during the COVID-19 pandemic.” The Ministry determined that any undertaking to issue Southbridge a licence should be made subject to appropriate conditions “to address public concerns.”
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[90] It is clear that the FLTCA grants the Minister broad discretion to “determine whether or not there should be a long-term care home in an area, and how many long-term care home beds there should be in an area” by “considering what is in the public interest”. Although the legislation lists several factors that the Minister should “take into account”, it does not indicate that any one factor is determinative or outweighs all others. The court’s assessment of “reasonableness” must be made in the context of the statutory scheme under which the decision was made.
[91] As the Supreme Court stated in Vavilov, at para. 110:If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. [Emphasis added.] [92] Section 101 of the FLTCA provides that the Minister “may restrict who may be issued a licence based on what the Minister considers to be in the public interest, having taken into account… the effect that issuing the licence would have on the balance between non-profit and for-profit long-term care homes.” Again, the legislation is permissive in this regard.
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