Simon's Megalomaniacal Legal Resources

Retirement Homes (Ontario)
Legal Guide

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Chapter 6 - Enforcement

1. General
   
2. Duty to Report
   
3. Complaints to Licensee
   
4. Complaints to Registrar
   
5. Inspections
   
6. Investigations
   
7. 'Whistle Blowers'
   
8. Orders
   
9. Administrative Penalty Orders
   
10. Offences
    
11. Appeals

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1. General

Contravention of the Retirement Homes Act includes contravention or non-compliance with the Act, it's Regulation, any licensees and Registrar-imposed licensee conditions under the Act and any Registrar's Orders issued under it [RHA 4].

Further, "(n)o person shall hinder or obstruct any person in the performance of his or her duties under this Act." [RHA 117].


2. Duty to Report

Any person who has reasonable grounds to suspect that any of the following has occurred, or may occur, to a resident shall, and a resident may, report the suspicion and the information upon which it is based to the Registrar [RHA 75(1,2), Reg 58]:

1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.

2. Abuse of a resident by anyone or neglect of a resident by the licensee or the staff of the retirement home of the resident if it results in harm or a risk of harm to the resident. [see Ch.3: "Procedural Rights", s.7 "Licensee Duty Regarding Abuse and Neglect"]

3. Unlawful conduct that resulted in harm or a risk of harm to a resident.

4. Misuse or misappropriation of a resident’s money.

This duty also applies to a medical practitioner, a person who is a member of a College under the Regulated Health Professionals Act, a "drugless practitioner under the Drugless Practitioners Act" or a "member of the Ontario College of Social Workers and Social Service Workers" (a 'professional') regardless of whether the information is confidential or privileged. No "action or other proceeding" may be commenced against such a professional person unless the person "acts maliciously or without reasonable grounds for the suspicion" [RHA 75(3)].

As well, such a person so reporting is immune from civil liability [RHA 75(3)]. However this duty and immunity doesn't apply to solicitor-client privilege [RHA 75(4)].

On the making of such a report by a person the Registrar shall conduct an inspection or "makes inquiries for the purpose of determining whether the licensee of the home is in compliance with the requirements under this Act" [RHA 75(5)]. The Registrar shall immediately visit the retirement home "if the report indicates that serious harm has occurred to a resident of the home or that there is a risk of serious harm occurring to a resident of the home" [RHA 75(5.1)].


3. Complaints to Licensee

Licensees shall establish written policies for addressing complaints "about the operation of the home" [RHA 73]. Complaints, whether written or verbal, "concerning the care of a resident or operation of the home", shall shall be dealt with as follows [Reg 59(1)]:

• The complaint shall be investigated. If the complaint alleges harm or risk of harm to one or more residents, the investigation shall be commenced immediately.
  
  
• The complaint shall be resolved if possible, and a response provided within 10 business days.
  
  
• For those complaints that cannot be investigated and resolved within 10 business days, an acknowledgement of receipt of the complaint shall be provided within 10 business days of receipt of the complaint, including the date by which the complainant can reasonably expect a resolution, and a follow-up response shall be provided as soon as possible in the circumstances.
  
  
• Responses, as mentioned here, shall be made to the person who made the complaint, indicating,
  
  . what the licensee has done to resolve the complaint, or
  
  . that the licensee believes the complaint to be unfounded and the reasons for the belief.

A written record shall be kept of complaints [except verbal complaints that are resolved within 24 hours: Reg 59(4)] that includes [Reg 59(2)]:

• the nature of each verbal or written complaint;
  
  
• the date that the complaint was received;
  
  
• the type of action taken to resolve the complaint, including the date of the action, time frames for actions to be taken and any follow-up action required;
  
  
• the final resolution, if any, of the complaint;
  
  
• every date on which any response was provided to the complainant and a description of the response; and
  
  
• any response made in turn by the complainant.

As follow up, the licensee shall ensure that [Reg 59(3)]:

• the written record of complaints is reviewed and analyzed for trends at least quarterly;
  
  
• the results of the review and analysis are taken into account in determining what improvements are required in the retirement home; and
  
  
• a written record is kept of each review and of the improvements made in response.

4. Complaints to Registrar

In addition (regardless of whether a complaint has been made to the licensee), the Registrar shall receive complaints concerning licensed retirement homes [RHA 81-83]. If the complaint or other information indicates a contravention of the RHA may have occured, the Registrar may have an inspection performed [Reg 60].

In the course of resolving a complaint they may inspect, mediate and otherwise take action to resolve the complaint [RHA 84], and they must conduct an inspection if the complaint relates to [RHA 85]:

1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.

2. Abuse of a resident by anyone or neglect of a resident by the licensee or staff of the home that resulted in harm or a risk of harm to the resident. [see Ch.3: "Procedural Rights", s.7 "Licensee Duty Regarding Abuse and Neglect"]

3. Contravention of a requirement under this Act, or other unlawful conduct, that resulted in harm or a risk of harm to a resident.

After the complaint the Registrar shall notify the complainant in writing of any action taken or decisions made. Also, the Registrar shall notify the complainant of their right to have a Complaints Review Officer review the complaint if the Registrar has decided to do nothing [RHA 87,88].


5. Inspections

The Registrar shall appoint inspectors, and themselves are inspectors [RHA 76].

Inspectors have a range of powers, both with and without warrant, and with or without notice, on licensees and retirement homes (and suspected unlicensed retirement homes) [RHA 77(1-2), 78-79], and inspectors have a broad range of powers on a proper inspection, including demand authority [RHA 77(5-12].

Minimally, inspections shall be conducted of licensed retirement homes at least once every three years [RHA 77(3), Reg 58.1]. No living quarters may be entered during an inspection without a warrant or consent of the occupier, without exigent circumstances [RHA 5, 77(4), 78].

After conducting an inspection of a licensed retirement home the inspector shall prepare a draft report, which the licensee may provide written comments on, followed by a final report which shall be distributed to the licensee and the Resident's Council [RHA 77(14]. An inspection of unlicensed premises shall also be followed by a report [RHA 77(16)].


6. Investigations

Licensees shall investigate "every alleged, suspected or witnessed incident" of [RHA 74]:

• abuse of a resident of the home by anyone, or
  
  
• neglect of a resident of the home by the licensee or the staff of the home.

[see Ch.3: "Procedural Rights", s.7 "Licensee Duty Regarding Abuse and Neglect"]

Regardless of whether the licensee has investigated, the Registrar has it's own investigative authority. Investigators may be appointed by the Registrar [RHA 80], and they have broad authority to investigate where there is suspicion of an offence that has "contravened or is contravening this Act or the regulations or has committed an offence that is relevant to the person’s fitness for a licence" [RHA 80.1-80.3].


7. 'Whistle Blowers'

Unusual in most regulatory statutes are the RHA's provisions protecting persons (staff, residents, family members, substitute-decision makers and others) from retaliation or the threat of retaliation against them if they have "disclosed anything to the Registrar or an inspector or has provided evidence that has been or may be given in a proceeding" respecting RHA contraventions and coroner's inquests [RHA 115]. Specific employee provisions involving the Ontario Labour Relations Board (OLRB) apply, for both employees under collective agreements and those not [RHA 116].

Noteworthy in these provisions are immunity from legal liability for persons "for making a disclosure to the Registrar or an inspector", except in the case of the "person act(ing) maliciously or in bad faith". These protections could apply in torts of defamation, intentional infliction of mental suffering, intentional interference with economic relations, fraud, intimidation and others - depending on the facts [RHA 115(7)].


8. Orders

There are several Registrar Orders available to aid in enforcement of the RHA:

. Unlicensed - Ceasing Operation

For an unlicensed retirement home, an Order "to cease to operate the premises as a retirement home" if the Registrar "believes on reasonable grounds that a person is operating a retirement home without a licence" [the Registrar may also order that the party apply for a license] [RHA 89].

. Licensed - Prohibitory or Mandatory Orders

For a licensed retirement home in contravention of the Act, an Order "to refrain from doing something, or to do something, for the purpose of ending the contravention and achieving compliance and for the purpose of ensuring that the contravention is not repeated and that compliance is maintained" [RHA 90(1)].

. Licensed - Management Orders

For a licensed retirement home, an Order "ordering the licensee to employ or retain, at the licensee’s expense, one or more persons acceptable to the Registrar to manage or assist in managing all or some of the operations of the home" [RHA 91].

. Licensed - 'Extraordinary Circumstances Order'

For a licensed retirement home, a management or other prohibitory/mandatory Order "if, (a) there are extraordinary circumstances, as set out in the regulations, that require immediate action to be taken with respect to the retirement home; and (b) the Registrar believes on reasonable grounds that the extraordinary circumstances have resulted or may result in harm or a risk of harm to one or more residents." [RHA 92.1]. For these purposes, "extraordinary circumstances" are [Reg 60.0.1]:

• Acts of God, including extreme weather events or other natural disasters.
  
• Severe flooding.
  
• Staff shortages that rise to a critical level.
  
• Shortages of critical supplies or interruptions of essential services, including with respect to food, heat, water and electricity.
  
• Fires, explosions, chemical spills or similar major hazards.
  
• Acts of terrorism.
  
• Major failures or destruction of critical physical or technological infrastructure, including failures caused by ransomware or cyber attacks.
  
• Epidemics or pandemics, including any necessary quarantines.

. Licensed - License Revocation

For a licensed retirement home, an order revoking their license, "to cease operating the retirement home", "and to comply with the requirements the Registrar considers necessary and sets out in the order." ['license revocation order'] [RHA 95]. With such an "the Registrar shall require the licensee to surrender the revoked licence to the Registrar on or before the date specified in the order" [Reg 60.0.3].

Any of the above Registrar orders shall give notice and "set out the requirements of Part VI for appealing the order" to the License Appeal Tribunal [RHA 96]. If "the order contains personal information or personal health information, the Registrar shall, at the same time, give the licensee a copy of the order with all personal information and personal health information redacted" [RHA 96.0.1].

With respect to 'prohibitory or mandatory orders' and 'management orders' either the Licence Appeal Tribunal [under the Licence Appeal Tribunal Act, 1999] or the Divisional Court "may affirm such an order" [RHA 92].

As well, court orders are available "for an order directing a person to comply with a provision of this Act or the regulations or an order made under this Act" [RHA 96.1].


9. Administrative Penalty Orders

Modern Ontario regulatory law relies much on administrative penalties (ie. fines) and less so on offences, as they are less onerous from the government's point of view. Offences still exist, below.

Administrative penalty orders shall give notice and "set out the requirements of Part VI for appealing the order" to the License Appeal Tribunal [RHA 96].

Administrative penalties may be imposed on anyone who the Registrar believes on reasonable grounds has "contravened a requirement under this Act", to a maximum of $10,000 [RHA 93]. The Registrar shall assess whether the contravention had or had the potential to have a major, moderate or minor adverse effect on residents or other persons, and set fines within the mentioned ranges after considering the: defendant's mitigation, prior contraventions, any economic benefit to the defendent and the goal of "encouraging compliance with the requirements under this Act".

The ranges are:

Minor From $100 to $2,000

Moderate From $1,000 to $5,000

Major From $2,500 to $10,000

There is a two-year limitation period from "the day the person’s most recent contravention on which the order is based first came to the knowledge of the Registrar" [RHA 93(5)].

Fines are due in 30 days, unless ordered longer [Reg 60.1(2)]. Unpaid administrative penalties may be collected using the enforcement procedures of the Superior Court [RHA 94].


10. Offences

Like most regulatory statutes, the RHA still provides for offence provisions, which are generally more serious than administrative penalties (fines). They are prosecuted under the Provincial Offences Act, either Part I (offence notice) or III (commenced by an 'information'). The ability to charge offences is not barred by the previous exercise of any other enforcement measures such as orders or administrative fines [RHA 97].

Details of offences available and procedures are set out in the Act [RHA 98-99,118].


11. Appeals

Registrar decisions and orders, including administrative penalty orders [RHA 93] and 'extraordinary circumstances orders' [RHA 92.1], are appealable to the License Appeal Tribunal [LAT] [RHA 100]. There is also a later appeal available on questions of law to the Divisional Court [RHA 6, 104(1)].

This website has not done a LAT guide, but s.100-105 of the RHA deals with them, and the balance of most of LAT procedures may be found on their website: License Appeal Tribunal website.