Seniors’ homes, trespass orders, and the Residents’ Bill of Rights

December 12, 2019 Sydney Osmar Elder Law Tags: 0 Comments

Recently, Marketplace has released the results of an investigation into seniors’ homes using trespass orders to ban family members from visiting.  The investigation reviewed over a dozen cases across Canada where family members believe they were banned from visiting their loved ones by retirement homes and long-term care homes as a method of silencing them from advocating on behalf of their loved ones.

In Ontario, one’s entry to a premises can be prohibited through the issuance of a notice under  the Trespass to Property Act.

Marketplace spoke with counsel at the Advocacy Centre for the Elderly (“ACE”) in Toronto, who explained that with regard to retirement homes in Ontario, case law has established that residents who pay to live on the property have a right to receive visitors they choose, without interference.

With regard to long-term care, the Long-Term Care Homes Act (the “Act”) provides residents with statutory protection, setting out that “[e]very resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference.” This particular protection can be located at section 3(14) of the Act, which forms part of the Residents’ Bill of Rights (the “Bill of Rights”). The Act also provides for a reporting and complaints procedure set out from sections 21 to 28.

The Bill of Rights statutorily mandates licensed care homes under the Act (“licensees”) to fulfill certain duties and obligations to their residents, including unhindered visitation and communication with family members and friends, the right to be protected from abuse, the right to exercise the rights of a citizen, and the right to be treated with courtesy, respect and in a manner that fully recognizes the residents’ individuality and respects their dignity.

Importantly, section 3(3) of the Act sets out that a resident may enforce the Bill of Rights against the long-term care home “as though the resident and the licensee had entered into a contract under which the licensee had agreed to fully respect and promote all of the rights set out in the Residents’ Bill of Rights.” While I have been unable to locate a reported decision where a resident (or a litigation guardian of a resident) has attempted to enforce the Bill of Rights vis-a-vis section 3(3), arguably, a resident pursuing such enforcement would have access to relief available in any other breach of contract case, including the specific performance of the contract and monetary damages.

In response to the Marketplace investigation, Ontario MPPs have called for a full investigation into the use of trespass orders against visitors and family members in retirement homes.

To learn more about the Residents’ Bill of Rights, take a listen to Stuart Clark and Doreen So’s recent podcast located here.

Thanks for reading!

Sydney Osmar

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