The Ontario government enacted the Long-Term Care Homes Act, 2007, S.O. 2007, c. 8 (the “LTCHA”), and the Retirement Homes Act, 2010, S.O. 2010, c. 11 (the “RHA”), with the important aim of strengthening the laws regarding the licensing of such facilities, and in order to offer greater protection to the individuals who reside therein. Retirement homes and long-term care homes are similar facilities, but each are different in the level of care provided to patients. Generally speaking, retirement homes are funded by the residents or their families, and cater to older residents and typically those without serious medical conditions, whereas long-term care facilities are funded by the provincial government and are designed to accommodate those with medical illnesses who may require 24/7 care.
Regardless of distinction between the two facilities, the province has focused on resident-centred care as the primary objective underlying both the LTCHA and the RHA. To this end, Section 1 of the LTCHA states that:
The fundamental principle to be applied in the interpretation of this Act and anything required or permitted under this Act is that a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.
Meanwhile, Section 1 of the RHA outlines a similar purpose:
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.
Residents’ Bill of Rights
The focus on residents is further evident in the inclusion of a Residents’ Bill of Rights at s. 3(1) of the LTCHA and s. 51(1) of the RHA. The rights outlined in the respective Acts are extensive, but it is worthwhile to examine them in full. The RHA Residents’ Bill of Rights is as follows:
51 (1) Every resident of a retirement home has the following rights which constitute the Residents’ Bill of Rights:
1. The right to,
know what care services are provided in the home and how much they cost,
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,
i.v. 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.
2. The right to apply for publicly funded care services and assessments.
3. The right to be informed about and to apply for care services and assessments from an external care provider.
4. The right to have his or her choice of care services provided by staff who are suitably qualified and trained to provide the services.
5. 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.
6. The right not to be restrained except in accordance with the common law.
7. The right to be afforded privacy in treatment and in caring for his or her personal needs.
8. 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.
9. 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.
10. 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.
The LTCHA’s Residents’ Bill of Rights is even more extensive, given the higher degree of care and supervision required in such facilities, and is as follows:
3 (1) Every licensee of a long-term care home shall ensure that the following rights of residents are fully respected and promoted:
1. Every resident has the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity.
2. Every resident has the right to be protected from abuse.
3. Every resident has the right not to be neglected by the licensee or staff.
4. Every resident has the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
5. Every resident has the right to live in a safe and clean environment.
6. Every resident has the right to exercise the rights of a citizen.
7. Every resident has the right to be told who is responsible for and who is providing the resident’s direct care.
8. Every resident has the right to be afforded privacy in treatment and in caring for his or her personal needs.
9. Every resident has the right to have his or her participation in decision-making respected.
10. Every resident has the right to keep and display personal possessions, pictures and furnishings in his or her room subject to safety requirements and the rights of other residents.
11. Every resident has the right to,
i. participate fully in the development, implementation, review and revision of his or her plan of care,
ii. give or refuse consent to any treatment, care or services for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent,
iii. participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters, and
iv. have his or her personal health information within the meaning of the Personal Health Information Protection Act, 2004 kept confidential in accordance with that Act, and to have access to his or her records of personal health information, including his or her plan of care, in accordance with that Act.
12. Every resident has the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible.
13. Every resident has the right not to be restrained, except in the limited circumstances provided for under this Act and subject to the requirements provided for under this Act.
14. Every resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference.
15. Every resident who is dying or who is very ill has the right to have family and friends present 24 hours per day.
16. Every resident has the right to designate a person to receive information concerning any transfer or any hospitalization of the resident and to have that person receive that information immediately.
17. Every resident has the right to raise concerns or recommend changes in policies and services on behalf of himself or herself or others to the following persons and organizations without interference and without fear of coercion, discrimination or reprisal, whether directed at the resident or anyone else,
i. the Residents’ Council,
ii. the Family Council,
iii. the licensee, and, if the licensee is a corporation, the directors and officers of the corporation, and, in the case of a home approved under Part VIII, a member of the committee of management for the home under section 132 or of the board of management for the home under section 125 or 129,
iv. staff members,
v. government officials,
vi. any other person inside or outside the long-term care home.
18. Every resident has the right to form friendships and relationships and to participate in the life of the long-term care home.
19. Every resident has the right to have his or her lifestyle and choices respected.
20. Every resident has the right to participate in the Residents’ Council.
21. Every resident has the right to meet privately with his or her spouse or another person in a room that assures privacy.
22 Every resident has the right to share a room with another resident according to their mutual wishes, if appropriate accommodation is available.
23. Every resident has the right to pursue social, cultural, religious, spiritual and other interests, to develop his or her potential and to be given reasonable assistance by the licensee to pursue these interests and to develop his or her potential.
24. Every resident has the right to be informed in writing of any law, rule or policy affecting services provided to the resident and of the procedures for initiating complaints.
25. Every resident has the right to manage his or her own financial affairs unless the resident lacks the legal capacity to do so.
26. Every resident has the right to be given access to protected outdoor areas in order to enjoy outdoor activity unless the physical setting makes this impossible.
27. Every resident has the right to have any friend, family member, or other person of importance to the resident attend any meeting with the licensee or the staff of the home.
As is evidenced throughout the Residents’ Bill of Rights in both Acts, respect for the dignity and individuality of residents goes far beyond the right to participate in decisions about their personal or medical care: residents have the right to pursue a full spiritual life, to make friends, to make complaints, and to participate in cultural activities, among other things. However, though the rights outlined are comprehensive, neither Act creates a new legal avenue by which residents could be compensated for a contravention of their rights.
Complaints Regarding Violations of Residents’ Rights under the LTCHA and RHA
While the causes of action available in tort and otherwise, such as negligence and breach of contract, remain available to residents of retirement homes and long-term care homes, no new cause of action has resulted from the enactment of the RHA or LTCHA, and residents are therefore unable to pursue legal remedy under either Act. The LTCHA, in fact, specifically provides at s. 193 that:
(1) No cause of action arises as a direct or indirect result of the enactment of this Act including, without limiting the generality of the foregoing, the deemed replacement of a licence or approval under section 187 or the extinguishment of any authority or permission under section 188.
(2) No costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort or trust, is available to any person in connection with the enactment of this Act, including, without limiting the generality of the foregoing, the deemed replacement of a licence or approval under section 187 or the extinguishment of any authority or permission under section 188.
Both Acts, however, provide complaint mechanisms and enforcement procedures, with penalties including warnings, fines, the revocation of an operating license, and imprisonment. Sections 21 to 28 of the LTCHA outline the complaints procedure for long-term care homes, and provide that a licensee under the Act must report, investigate and respond to complaints made against the long-term care home. The Act also provides protections for whistle blowers. As for the enforcement of the provisions of the LTCHA, an inspector or the Director (“the person appointed under section 175 as the Director and, where more than one person has been appointed, means the person who is the Director for the purposes of the provision in which the term appears”) under the Act has broad powers to order a licensee to “do anything, or refrain from doing anything, to achieve compliance with a requirement under the Act” per s. 153(1)(a). The maximum penalties for a contravention of the LTCHA, pursuant to s. 182(1), are a fine of $25,000 or $50,000, depending on whether it is a first or subsequent offence, and/or a term of imprisonment no longer more than 12 months.
As for the RHA, ss. 73 through 75 outline the procedure for complaints to a licensee of a retirement home. A licensee is required to respond to complaints, but as opposed to the provisions of the LTCHA, only certain complaints, relating primarily to the neglect, harm, or financial abuse of a resident must be reported to the Registrar (“the Registrar of the Authority appointed under section 23” of the RHA)  under the Act. Sections 81 through 88 outline the procedures for complaints to the Registrar, and provide that the Registrar must investigate and respond to all complaints. Section 84 grants broad enforcement powers to the Registrar, similar to those of the Director under the LTCHA, to, among other things, “take other action that is prescribed in the circumstances that are prescribed.” The maximum penalties for a contravention of the RHA are the same as those under the LTCHA.
The LTCHA and RHA provide residents of care facilities with extensive rights to participate in decisions about their day-to-day activities, medical care, and to participate fully in their social, cultural and spiritual lives. Where a licensee under either Act fails to ensure the rights of residents as prescribed, both Acts provide for penalties ranging from written warnings to imprisonment. However, it must be noted that the most severe penalties under the RHA and LTCHA – the revocation of a license or imprisonment of a licensee – are likely to necessitate the shutdown of a facility and/or the removal of residents from a facility. While such penalties may be essential to ensure the safety and well-being of residents, they are also disruptive to the living situation and care of these individuals. In order to be compensated for such disruptions, or any other harm caused by the licensees of a retirement or long-term care home, residents and their families must still rely on longstanding causes of action, such as negligence, tortious assault and battery, and breach of contract.