|
Retirement Homes (Ontario)
Legal Guide
Chapter 1 - Overview- General
- Interaction of the Retirement Homes Act (RHA) and the Residential Tenancies Act (RTA)
- Retirement Homes (RHs) and Residents Defined
(a) General
(b) 'Residential Complex'
(c) Care Services
- Statutory RHA Exemptions
- The Retirement Homes Regulatory Authority
- Licensing of Retirement Homes
- Registers
- Public Consultation Regarding Regulations
- French Use with the Authority (RHRA)
- Civil Liability
- Retirement Homes Regulatory Authority Emergency Fund
1. General
As a social phenomenon retirement homes (RHs) are relatively culturally new, focussed on western cultures with others cultures still feeling a greater family obligation to care for their elderly pesonally. I actually lived in one for close to a year, post-injury in 2018-2019 and had personal experience of it and it's residents myself. While it is not true that all retirement homes are places of abandonment for the elderly - many residents choose it for the advantages it has, and many families still consider their parents (and grand and great-grand parents) still part of the family while there - but sadly they are seen as places of familial abandonment by some residents.
As a legal phenomenon the Retirement Homes Act says the right sort of things that one would expect in a western liberal democracy, that is:RHA 1
The fundamental principle to be applied in the interpretation of this Act and any regulation, order or other document made under this Act is that a retirement home is to be operated so that it is a place where residents live with dignity, respect, privacy and autonomy, in security, safety and comfort and can make informed choices about their care options. But legally, most retirements homes are essentially rented rooms governed by the Residential Tenancies Act with a mandatory contractual care component of varying degrees.
As with all legal guides in this website this one takes an advocate's perspective, dwelling on individuals' rights - and moreover - their assertion of those rights. I leave it to others to write the perspective of the investor, management, employee and regulator.
2. Interaction of the Retirement Homes Act (RHA) and the Residential Tenancies Act (RTA)
As mentioned above, by their nature as rented accomodation, most retirement homes are also governed by the Residential Tenancies Act (RTA), where they are referred to as "care homes" [RTA 2(1)]:s.2(1)
“care home” means a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy; From that perspective, the RTA can be viewed as setting out the basic occupancy rights of residents (ie. 'tenants'), with care service contractual rights [governed by the Retirement Homes Act] being supplementary to those occupancy rights. In the case of conflict between the RTA and the RHA, the RTA governs:. "(n)othing in this Act [the RHA] overrides or affects any rights or obligations that a tenant or landlord has under the Residential Tenancies Act, 2006" [RHA 119], and
. "(i)f a retirement home also falls within the meaning of a care home as defined in the Residential Tenancies Act, 2006, nothing in this Act [the RHA] overrides or affects the provisions of the Residential Tenancies Act, 2006 that would otherwise apply with respect to the home as a care home" [RHA 52]. Chapters 2, s.3 of the Isthatlegal.ca Residential Landlord and Tenant Legal Guide [Special and Exempt Premises: Care Homes] sets out the variations from normal RTA law that apply to such 'care homes'. Readers of this website must take care when assessing an RH situation, to have regard to not only the RHA guide, but also to these RTA 'care home' variations - and of course main RTA law.
Perhaps the most significant variation is the exclusion of 'care services and meals' from the RTA definition of "rent" [RTA 2(1)], thus effectively exempting retirement homes from Ontario's rent controls. Residents of retirement homes will see invoices broken down into 'care services' and 'rent' separately, but - while RHs are technically governed by the rent control provisions [and the 90-day "Form N3: Notice to Increase the Rent and.or Charges for Care Home Services and Meals" duties] - the reality is that rent controls alone are easy to defeat simply by raising the care service charges alone.
For those few RHs not governed by the RTA, determining the precise legal nature of your retirement home accomodation can be complex. In particular, the status of any rented premises as RTA-governed is itself subject to a range of exceptions, as set out in Ch.2 of my RTA Guide [Ch.2: Special and Exempt Premises]. Note that the specific RHA-exempt categories [in s.4 below] above are mostly subject to either complete and partial RTA exemptions as well. When premises are not RTA-governed, they are most likely governed by some combination of contract law and possibly the Commercial Tenancies Act.
3. Retirement Homes (RHs) and Residents Defined
(a) General
The important dual definitions of 'retirement home' and 'resident' are intertwined. By definition, residents of a retirement home (RH) are mostly seniors, are mostly unrelated to the retirement home's operator - and they receive accomodation and some combination of at least two "care services" from the 'operator' of the home [RHA 2(1)]:RHA s.2(1)
“retirement home” means a residential complex or the part of a residential complex,
(a) that is occupied primarily by persons who are 65 years of age or older,
(b) that is occupied or intended to be occupied by at least the prescribed number of persons who are not related to the operator of the home, and
'Related to the operator' includes a person related through adoption, marriage, conjugal relationship outside marriage, other culturally traditional form of kinship as described in the regulations, if any, or through another prescribed form [RHA 2(2)].
(c) where the operator of the home makes at least two care services available, directly or indirectly, to the residents, ... Sometimes the resident is mentally incapable, or just have another (family, friends) person who helps them make decisions - called a "substitute decision-maker". A “substitute decision-maker” for a resident means a person who is authorized, under the Substitute Decisions Act, 1992 or under the provisions of the Health Care Consent Act, 1996 that apply with respect to retirement homes and residents of retirement homes, to make a decision or to give or refuse consent on behalf of another person in the circumstances in which the decision or consent, as the case may be, is required [RHA 2(1)].
“Incapable” means unable to understand the information that is relevant to making a decision concerning the subject matter or unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision [RHA 2(1)].
(b) 'Residential Complex'
The concept of a 'residential complex' is one drawn from RTA law where it refers to a "building or related group of buildings in which one or more rental units of living accommodation are located, and includes all common areas and services and facilities available for the use of the residents of the complex" [RHA 2(1)]. For RHA purposes a 'residential complex', or part thereof, in order the qualify as a 'retirement home' "must be occupied or be intended to be occupied by at least six persons who are not related to the operator of the home" [Reg 3(1)].
(c) Care Services
Most RHA rights relate to "care services", and "care services" is the most detailed issue in the RH definition, as listed here [RHA 2(1)]. They are:- (a) a prescribed health care service provided by a member of a College as defined in the Regulated Health Professions Act, 1991,
- (b) administration of a drug, as defined in the Drug and Pharmacies Regulation Act, or another substance,
"Drugs" means a drug as defined in the Drug and Pharmacies Regulation Act [Reg 4(1)].
- (c) assistance with feeding,
- (d) assistance with bathing,
- (e) continence care,
- (f) assistance with dressing,
- (g) assistance with personal hygiene,
- (h) assistance with ambulation, and
- (i) provision of a meal.
As well, any of the following professional services [Reg 2(1), RHA 2(1)(j)] are "care services":- any service that a member of the College of Physicians and Surgeons of Ontario provides while engaging in the practice of medicine;
- any service that a member of the College of Nurses of Ontario provides while engaging in the practice of nursing;
- any service that a member of the Ontario College of Pharmacists provides while engaging in the practice of pharmacy;
- the provision of a dementia care program;
- the provision of a skin and wound care program.
Services provided under the Homemakers and Nurses Services Act are not care services for the purposes of the Act [Reg 2(2), RHA 2(1) "care services"].
4. Statutory RHA Exemptions
There are some express statutory exemptions to the RH definition, which - despite otherwise meeting the definition of an RH, are not governed by the RHA. These are [RHA 2(1)]:RHA s.2(1)
“retirement home” means a residential complex or the part of a residential complex,
but does not include,
(d) premises or parts of premises that are governed by or funded under,
...
(iii) the Homes for Special Care Act,
...
(v) the Fixing Long-Term Care Act, 2021, [SS: aka 'nursing homes']
(vi) the Ministry of Community and Social Services Act,
...
(viii) the Private Hospitals Act,Note: Pending Proclamation
On a day to be named by proclamation of the Lieutenant Governor, "the Private Hospitals Act" is replaced with the "Oversight of Health Facilities and Devices Act, 2017" (ix) the Public Hospitals Act, or
(x) the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, or
(e) premises at which emergency hostel services are provided under the Ontario Works Act, 1997. Additionally, the following premises are excluded from the definition of 'retirement homes' [RHA 2(1)(f), Reg 3(2)]:- premises, or parts of premises, at which a supportive housing program or a residential treatment program is provided and funded under the Local Health System Integration Act 2006, the Connecting Care Act 2019 or the Ministry of Health and Long-Term Care Act;
- premises or parts of premises funded under the Community Homelessness Prevention Initiative of the Ministry of Municipal Affairs and Housing; and
- premises "owned or operated by a health service provider or an Ontario Health Team" that was funded [under s.21 of the Connecting Care Act, 2019 (CCA, 2019)] "to provide home and community care services that include residential accommodation" [within the meaning of Reg 187/22 ('Home and Community Care Services') under CCA, 2019].
5. The Retirement Homes Regulatory Authority
The Ontario retirement homes regime has a central 'Retirement Homes Regulatory Authority' (RHRA) [RHA 9-32], this is a non-share corporation and it's membership is identical to the Authority's board of directors (when directorship in the corporation ends, so does membership in the Authority) [RHA 11].
A minority of directors may be appointed by Cabinet [RHA 12(4,5)], but the majority are elected by members of the Authority [RHA 12(7)]. Directors are paid [RHA 12(11)] and act by by-laws [RHA 14]. The Minister of Senior Affairs plays a large role in the membership and election of directors, and must have a Memorandum of Understanding (MOU) with the Authority [RHA 18]. The Minister of Senior Affairs may unilaterally amend the MOU [RHA 18(3)] and issue policy directions to the Authority [RHA 19].
The Authority may issue forms, and set fees for the operation of the retirement home regime (except fees for the laying of complaints) [RHA 20-21].
A 'Risk Officer' shall be appointed by the RHRA board who shall act in a policy checking role to ensure that the Act and Regs are followed by licensees [RHA 24], and also a 'complaints review officer' [RHA 25]. The Authority shall establish a 'Code of Ethics' governing the conduct of itself and it's staff [RHA 26]. Further details of enforcement of the RHA are set out in Chapter 8: "Enforcement".
The Authority shall act day-to-day through it's corporate board - but more commonly by the Registrar [RHA 23(1)], and the Registrar is the entity with which most RH licensees, applicants for licenses and sometimes residents and their care-givers will have more interaction with.
The Registrar may at any time require a licensee of a retirement home to give it "information that the Registrar specifies in accordance with processes and criteria that the Authority establishes and that the Minister approves" regarding [RHA 108(1-3)]:. the types of care services that the licensee makes available in the home;
. clinical and functional profiles of residents of the home if the profiles are de-identified;
. the licensee’s operation of the home and compliance with this Act; or
. any other prescribed matters (including 'de-identification' of documents) [Reg 62.1]. As well, "(t)he Authority may require a licensee to deliver a written communication, on behalf of the Authority, to a resident or their substitute decision-maker in the time and manner the Authority may specify" [RHA 108.1].
6. Licensing of Retirement Homes
A 'licensee' of a retirement home is simply that, the legal entity that holds the licensee [RHA 2(1)]. The 'operator' is related but different, it is the "person who owns or controls the business of operating the home" [RHA 2(1)], and is an attempt to reach back to the true controller of the business enterprise. Most references in the RHA are to 'licensees'.
The RHA licenses retirement homes, and is an offence to operate one without a license [RHA 33-49, 98].
Forms, information, documents and application fee required for applications are set out in the RHA General Regulation [Reg 5], and extra expense insurance is required to address unforeseen loss or damage requirements that prevent the home from performing normal care of residents [Reg 5.1].
The Registrar may refuse a license application, or impose conditions on licenses both on or after the issuance of the license [RHA 8,36,39]. No such decision shall be made until the Registrar has served a 'notice of intent' to make the decision, with a right to make written submissions [RHA 40]. The Registrar may then issue a 'notice of decision' to address the matter [RHA 41].
Several administrative conditions are set out which terminate a license [RHA 48, 60.0.2] (for terminations 'for cause', see Ch.4, s.8 "Orders"), a significant one dealing with changes of "controlling interest" in the corporation which holds the license. The use of the term "controlling interest" reflects the government's interest in accountability in licensees, so that corporate structuring cannot (hopefully) be used to conceal and walk away from responsibility or unsuitable parties gain such control [RHA 3].
If and when an RH license terminates, by circumstance or administrative act, it's not as simple as cancelling one's driver's license (ie. you stop driving). On termination, residents in place must be dealt with - hopefully compassionately, so before the RH ceases operation the RH must give a transition plan at least 120 days before the operation ceases, and as well notice to the residents or substitute decision-makers [RHA 49, Reg 7].
In addition, the licensee must give the Registrar written notice of changes in controlling interests and "(a)ny other event that would result in the termination of the licence", at least two months beforehand. Changes in directors or officers (both of licensed corporations and corporations with controlling interests), management, retirement home closures, unplanned evacuations and temporary relocations must be given in writing "as soon as possible" [RHA 109, Reg 63].
7. Registers
The Registrar establishes one or more publically-available 'registers' to record details of both applicants and licensees for retirement homes. These contain such information as the name and address of the applicant and the premises, the number of residents that the home can accomodate, care services available and much more. For licensed RHs there are also details about inspection reports, orders issued to licensees and appeals, offence convictions and "information about any termination, revocation or surrender of the licence" [RHA 106, Reg 62].
8. Public Consultation Regarding Regulations
In an unusual feature, regulations passed under the RHA (regulations are law, here passed by Cabinet) are subject to a public consultation process involving website publication of 'proposed regulations' and submission of written comments by members of the public [RHA 122].
9. French Use with the Authority (RHRA)
Persons dealing with the RHRA have the right to communicate in french on request [RHA 110, Reg 64]. This would naturally include dealings with the Registrar as well [RHA 23(1)].
10. Civil Liability
It's usual with regulatory statutes to immunize or semi-immunize government actors such as the Crown, Crown employees and others from civil liability, usually to protect them from anything not done in bad faith. The RHA has several more provisions than are usual, but I'll leave you to sort them out it you ever want to sue someone official [RHA 28-30.1].
11. Retirement Homes Regulatory Authority Emergency Fund
The RHRA Emergency Fund is a fund collected from administrative fines and elsewhere to payout to residents for "additional costs that the individual incurred to obtain reasonable alternate accommodation and care for a period of no more than 120 days if, as a direct result of emergency circumstances arising from loss or damage to the home, the operator was unable to safely provide the normal accommodation or care in the home to the individual" [RHA 27, Reg 64.1-64.4].
|
