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Retirement Homes (Ontario)
Legal Guide
Chapter 2 - Resident's Bill of Rights- The Resident's 'Bill of Rights' and it's Legal Enforcement
- The Bill of Rights
- Bill of Rights #1: Right to Care Services Information
- Bill of Rights #2: Right to Apply for Publicly Funded Care Services and Assessments
- Bill of Rights #3: Rights to Information About and to Apply to External Care Services and Assessments
- Bill of Rights #4: Right to Qualification and Training of Staff Who Provide Care Services
- Bill of Rights #5: Rights to Participation in Care Decisions, Plan of Care and to Exercise Legal Consent
- Bill of Rights #6: Rights Against Restraint
- Bill of Rights #7: Right to Privacy in Treatment and Care
- Bill of Rights #8: Right to Safety, Cleanliness and Respect
- Bill of Rights #9: Right to Lifestyle and Choices
- Bill of Rights #10: Right to Input into Policies Without Reprisal
- Bill of Rights #11: Right to Know of RTA Status
1. The Resident's 'Bill of Rights' and it's Legal Enforcement
The RHA's most obvious legal protection is the resident's care service 'Bill of Rights' [RHA s.51]. The enforcement of the Resident's Bill of Rights is novel, it both [RHA 51(2-3)]:- requires the licensee to "ensure that the rights set out in the Residents’ Bill of Rights are fully respected and promoted in the home in accordance with the regulations, if any",
and, more importantly:
- renders these rights enforceable "against the licensee of the home as though the resident and the licensee had entered into a contract" for them.
This makes these 'rights' directly enforceable at the hands of the residents on a firm legal basis before the courts, a refreshing remedial option which I wish we saw more of in Ontario regulatory and administrative law.
See the Isthatlegal.caSmall Claims Court (Ontario) Legal Guide [the court monetary limit is $35,000 since 01 January 2020]. Claims above $35,000 may be advanced in the regular Superior Court.
However, this praise requires temperance, since - while direct contractual standing has serious potential clout (effectively bring then entire Bill of Rights under the regular court system with it's highly developed contract damages and other remedial sanctions) it has it's drawbacks.
Firstly, many de facto resident 'rights' are not included the Bill of Rights, which only consists of the 11 rights set out in s.51(1) of the RTA (listed below in section 2). These 'non-bill-of-rights' rights, are set out in ss.52-75 [Ch.3 "Regular Rights" and Ch.4 "Operator Duties, Prohibitions and Restrictions"], but these all lack the contractual force of law - unless they happen to be specifically embodied in a contract or agreement between the RH and the resident.
Next, some of the rights in the Bill of Rights would strike the average person as remarkably obvious and not needing guarantee, that is - things that any person (let alone a resident) would and should have already just by virtue of being a citizen. This occurs because the 'Bill of Rights' was created partly to counter a range of monopoly-type powers that retirement home owners used to impose on residents, powers that didn't normally exist in contractual arrangements but that the particular dynamics of the resident-home relationship enabled. The key dynamic that allowed these pre-Bill problems to arise was that physical control that the RH operators has over the RH premises. Like company towns (in past) or trailer parks (even now) the physical control that the operator had enabled them to contractually bar 'competitor' service provider. This explain Rights 1-3.
The other 'rights' are mostly consumer and participation rights that are attributable to the reduced bargaining power of older people, especially those with various degrees of dementia.
And let us not deny that it is a sad reality of many retirement home residents that they would rather 'still be at home', but that their families can't (or don't want to) directly care for them anymore. That's a 'target market' highly vulnerable for abuse in an otherwise unrestricted market.
As well, some of the Bill of Rights 'rights' [#5-10] are maddeningly vague and general, a litany of (human-rights-type) high-flown promises we often see but less often experience. Great care must be taken to clarify when 'rights' have firm remedial foundations, and when they don't (ie. they only have the administrative remedies otherwise set out in this guide). If one is not careful (and even if one is), then facts, being of the nitty-gritty nature that they are, will tend to lead judges away from the high-flown rights of the Resident's Bill of Rights, and away from their accessible contractual enforcement.
2. The Bill of Rights
These are the 11 listed rights in the Bill of Rights, with commentary:
Bill of Rights #1: Right to Care Services Information1. The right to,i. know what care services are provided in the home and how much they cost,
ii. be informed in advance of any increases in charges for care services provided in the home,
iii. receive advance notice of a decision of the licensee of the home to discontinue providing a particular care service,
iv. have the licensee of the home take reasonable steps to facilitate the resident’s access to any external care providers that the resident needs, if the resident receives the notice described in subparagraph iii and indicates that he or she is going to continue to reside in the home, and
v. have the licensee of the home take reasonable steps to find appropriate alternate accommodation for the resident, if the resident receives the notice described in subparagraph iii and indicates that he or she is going to cease to reside in the home. The resident has the right to:- know what care services are provided in the home and how much they cost (i);
- be informed in advance of any increases in charges for care services provided in the home (ii);
- receive advance notice of a decision of the licensee of the home to discontinue providing a particular care service, and if the resident indicates they are staying, to "facilitate the resident’s access to any external care providers that the resident needs" or if they are leaving "to find appropriate alternate accommodation for the resident" (iii-v).
These are basic information duties on the licensee. Any default in them, particularly where it causes financial loss to the resident, is potentially compensable. That said, the 'rights' are quite minimal, and really amount to bare notice provisions with raw market dynamics underlying a resident's situation. The resident's options amount to 'accept or move'.
The advance notice of care service fee increases [ii] are only minimally useful to residents as RHA law lacks any equivalent to 'rent controls' - and what true 'rent' controls there are being easily defeatable [discussed above Ch.1, s.2. "Interaction of the Retirement Homes Act (RHA) and the Residential Tenancies Act (RTA)"]. These amount only to the 90-day notice, and even then care service charges are not subject to the 'only every 12-month' rule that rents are - ie. care service charges can be increased at anytime as long as the 90-day notice is given.
The 'advance notice of discontinuance of care services' [iii-v] are not so much a resident 'right' as they are a licensee's right. Retirement homes are not required to provide the full range of 'care services' [see Ch.1, s.3 above], and if a licensee decides to terminate care services of particular importance to the resident, then these 'advance notice' rules amount to a legitimation of such discontinuance. Even a contractual inclusion of the particular care services may not survive discontinuance, particularly given these provisions and the absence of term leases in RHs [RTA 145(1)]. There is also no procedure for reducing charges on reduction of care services, unlike the RTA [see the L&T guide at Ch.12, s.3: "Tenant Applications to Decrease Rent on Reduction in Services [s.130]"].
Again, these 'notice of discontinuance' provisions, presented as tenant 'rights' - amount to little more than minor procedures that allow licensees to do what they want according to the dictates of the market.
Bill of Rights #2: Right to Apply for Publicly Funded Care Services and Assessments2. The right to apply for publicly funded care services and assessments. Again, this is hardly a 'right'. It amounts to a prohibition against the licensee attempting to monopolize service provisions (and thus charging for them), at least with respect to publicly funded services. Such monopolies have existed in past with private suppliers when the economically-dominant party has physical control over access to the residents' home, such as 'company towns' and trailer parks.
The common law has a great distaste for monopolies, and lawsuits involving such situations would attract damages for higher charges, inferior services - and maybe even aggravated and punitive damages.
This anti-monopoly issue with respect to private suppliers is dealt with under 'external care services', below.
Bill of Rights #3: Rights to Information About and to Apply to External Care Services and Assessments3. The right to be informed about and to apply for care services and assessments from an external care provider. This 'application right' here is similar to that above, except that it covers applications for external care services and assessments (ie. from private suppliers). The 'information right' is that the supplier and residents may communicate (essentially advertising) about such services. The purpose behind these rights is again anti-monopolistic.
As with #2 above, the absence of an express 'right' to access these services is worrisome, but it is likely that a court would interpret the term "apply" to include access, as otherwise they would be interpreting a provision into meaninglessness.
Bill of Rights #4: Right to Qualification and Training of Staff Who Provide Care Services4. The right to have his or her choice of care services provided by staff who are suitably qualified and trained to provide the services.
This amounts to a right to have qualified staff. Note that it is a right, and it is not mandatory - so unless it is contractually or otherwise required (ie. a professional monopoly on the services) then family or friends may be able to provide the services.
If however the right is exercised and unqualified staff are provided, and loss or injury occurs, then it may be raised in legal damage claims.
Bill of Rights #5: Rights to Participation in Care Decisions, Plan of Care and to Exercise Legal Consent5. The right to,
i. participate fully in making any decision concerning any aspect of his or her care,
ii. participate fully in the development, implementation, review and revision of his or her plan of care, and
iii. give or refuse consent to any treatment, care or service for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent. These several participation rights, if breached, would probably amount to (iii), or come close to (i and ii), the tort or crime of battery against the person. Also perhaps misappropriation of funds, so far as the resident is paying for somethings they did agreed to. Again, these 'rights' are ones that the average person walking the street would assume without the need for a separate legal guarantee - and if they were denied that person would feel legally aggrieved.
So while hardly a 'right' to shout about, Right #5 gives you a sense of the nature of tort as a legal remedy: Torts, with it's many available forms depending on the facts of the situation.
Bill of Rights #6: Rights Against Restraint6. The right not to be restrained except in accordance with the common law. This right is plain, and turns on the torts of false arrest and imprisonment and battery. The reference to 'common law' is just saying that it is the judge-made tort law of the tort that governs any lawsuit.
Chapter 5 ["Confinement and Restraint'] is particularly relevant to this issue.
Bill of Rights #7: Right to Privacy in Treatment and Care7. The right to be afforded privacy in treatment and in caring for his or her personal needs. This is a broad and developing right, and one already governed in part by PHIPA, PIPEDA and other statutes. These statutes and this issue are addressed in these links: Privacy and Tort - Invasion of Privacy.
Bill of Rights #8: Right to Safety, Cleanliness and Respect8. The right to live in a safe and clean environment where he or she is treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity. This 'right' can be broken into two: safe and clean environment (physical) and courtesy and respect (social).
With respect to the physical part, the 'right' is roughly added onto already existing RTA rights respecting repairs and a range of rights set out in Residential L&T: Ch.3 - Tenant Rights, Responsibilities and Remedies.
The 'social' part is much more amorphous, which means (legally) that there is lots more room for argument. Human rights codes in Canada got caught up for years on the concept of "human dignity" emanating from the case of Law v. Canada (Minister of Employment and Immigration) (SCC, 1999), finally realizing how nice-sounding but desperately fuzzy the concept is. It sensibly ignores it in Ermineskin Indian Band and Nation v Canada (SCC, 2009). There is no RHA case law on the 'dignity' issue that I am aware of, so if you find a sympathetic 'dignity' fact situation, you may have room to make new law.
Bill of Rights #9: Right to Lifestyle and Choices9. The right to have his or her lifestyle and choices respected and to freely pursue his or her social, cultural, religious, spiritual and other interests as long as the resident’s lifestyle, choices and pursuits do not substantially interfere with the reasonable enjoyment of the home for all usual purposes by the licensee and other residents.
This is similar to #8 above, but more cultural in nature. One time in my post-injury stay at the retirement home the staff went whole-hog on Christmas decorations, including blasting carols for hours a day from a hall speaker right outside my room. I complained with only some success, possibly earning myself an anti-religious reputation. Retirement homes, at least outside of Toronto, are bastions of whiteness and Christianity - the most exotic culturally we had amongst the clientele was a man with a German accent.
Bill of Rights #10: Right to Input into Policies Without Reprisal10. The right to raise concerns or recommend changes in policies and services on behalf of oneself or others to the Authority or any other person without interference and without fear of coercion, discrimination or reprisal, whether directed at the resident or anyone else. This is another right without a right. "(C)oercion, discrimination or reprisal" are already prohibited by a combination of tort law (Intimidation), human rights law and RTA law (Ch.3, s.2(d): Harassment).
Like so much of these 'Bill of Rights' #10 reeks of political showmanship, devoid of any new substantive law.
Bill of Rights #11: Right to Know of RTA Status11. The right to know if the home is also a care home within the meaning of the Residential Tenancies Act, 2006, and whether the residents therefore have rights and responsibilities as tenants under that Act. This, oddly tacked in at #11, is the exception to the shallowness of the other 'rights'. Knowing the licensee's view of whether the premises are governed by the RTA is highly useful to advocacy. And as we saw above, RTA law supercedes the RHA in the event of conflict [RHA 52, 119].
Technically, in the event of doubt, the determination of whether premises are governed by the RTA may be subject to an application before the Landlord and Tenant Board [RTA 9(1)(a), Residential L&T Guide: Ch.2, s.12], so - absent a recent ruling - this can only be read as an expression of the licensee's perspective on the issue.
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