May 14, 2010
The Ontario Human Rights Commission (the OHRC) thanks the Standing Committee on Social Policy (Committee) for the opportunity to comment on Bill 21, an Act to Regulate Retirement Homes (Act). The OHRC commends the Ontario Seniors' Secretariat for introducing legislation that, for the first time in Ontario, would lead to regulations to enhance the safety and security of older Ontarians living in these facilities. As part of its consultation report on age, the OHRC recommended that the provincial government take further steps to regulate retirement homes.
The OHRC's comments are based on its expertise as a human rights body with a broad mandate to protect and promote human rights consistent with international principles. The OHRC's mandate and powers are grounded in the Ontario Human Rights Code (Code). The OHRC's work on housing, age, and disability, including its reports, Time for Action: Advancing Human Rights for Older Ontarians, Right At Home: Report on the Consultation on Human Rights and Rental housing in Ontario, the OHRC's Policy on Human Rights and Rental Housing, its Policy on Discrimination against Older People Because of Age, its Policy and Guidelines on Disability and the Duty to Accommodate and relevant case law provide a framework for this discussion.
All OHRC documents are available on the OHRC's website at www.ohrc.on.ca.
Protections of the Human Rights Code
The Act, should it come into force, is subject to the primacy of the Code. The OHRC recommends adding language to strengthen the Bill so that both tenants and retirement home operators understand their rights and responsibilities with respect to protecting the human rights of retirement home residents. This can facilitate retirement home providers' compliance with the Code, and increase equal opportunity and safety of retirement home residents.
Under section 2 of the Code, individuals have the right to be free from discrimination in housing, based on their age, disability, race and other Code grounds. This includes the right to be free from harassment and unequal treatment. People also have the right to be free from discrimination when receiving services (section 1 of the Code), administered through the retirement home, or through third party service providers. The right to be free from discrimination in a retirement home based on Code grounds extends to all aspects of occupancy: finding and signing a lease, in the provision of services, during tenancy, when considering maintenance and repairs, and during evictions.
Retirement homes represent a point on the continuum of housing and care for people as they age, and can allow people to live largely independently with some supports. Residents in retirement homes, or "care homes," are considered "tenants" under Part IX the Residential Tenancies Act, 2006. This section sets out certain provisions, such as the requirement that care homes have to give tenants written tenancy agreements outlining care and meal services to be provided, and that care providers provide tenants with information packages regarding the cost and availability of care and emergency services. It is important to note the Residential Tenancies Act is also subject to the primacy of the Code.
Because tenants receive housing and care services from the retirement home provider, this makes the relationship between the landlord and tenant more complex. If tenants are in vulnerable situations, and dependent on the retirement home provider as a caregiver, this may make it difficult for tenants to know or secure their rights. This interplay can also lead to various human rights concerns, which makes the protections offered by the government with respect to regulation of retirement homes that much more pressing.
Through its various consultations on age, disability, housing, and mental health, the OHRC has heard about the human rights concerns that have arisen with respect to retirement homes. For example, it has heard about retirement home providers not accommodating older residents' disabilities. It has heard about issues of heterosexism and homophobia, where gay, lesbian or bisexual people's lives were not recognized and their partners not acknowledged, or they were subjected to homophobic treatment by facility staff. Several groups expressed concern regarding the cultural, linguistic, and religious needs of older persons living in care facilities. It was emphasized that the cultural, linguistic and religious needs of older persons must be given equal consideration.
A number of organizations have highlighted concerns about the lack of regulation of retirement homes, which the OHRC was told allowed for substandard care to exist and made older persons more vulnerable to abuse. Concerns were also raised about the use of restraints and confinement.
Because of the existence of these human rights concerns, the Committee should consider amending the Bill to include a requirement that retirement home providers create sound human rights policies, including complaint procedures, and procedures around the duty to accommodate, and provide staff with training on this information.
Bill of Rights & information packages
Five guiding principles are central to any consideration of issues relating to older persons: dignity, independence, participation, fairness and security. We are pleased to see that the Bill reflects many of these principles.
One of the positive attributes of the Bill is the development of the Residents' Bill of Rights (section 51). This and the development of the Residents' Council allows for practical tools for residents to protect their rights, have control over their own affairs and have a voice to deal with those who run their care. Developing a Bill of Rights for retirement homes was one of the recommendations emphasized by groups that participated in the OHRC's age consultation.
The OHRC recommends that the Bill of Rights also outline the rights of residents to be free from discrimination and harassment in housing and services. These same rights apply to residents' families. The Bill of Rights should also indicate that residents have the right to make requests for accommodation based on Code grounds, and that these requests will be responded to in good faith and in a timely manner, unless to do so would cause undue hardship on the part of the retirement housing provider.
The OHRC also recommends including a requirement in section 54 of the Bill for retirement home providers to include a copy of their human rights policies and complaints procedures to residents when tenancy begins.
The residents of retirement homes represent diverse populations and may have diverse needs. The OHRC was pleased to see acknowledgement of this in the Bill of Rights. The Bill of Rights (subsection 9) outlines the resident's "right to have his or her lifestyle and choices respected .... " However, it also indicates that residents are able 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" (italics added).
Although the "reasonable enjoyment" standard has been set by the Residential Tenancies Act, where residents have specific requirements based on their religion or ethnic origin (or other Code grounds), these must be accommodated to the point of undue hardship. The Supreme Court of Canada has established that Code-related needs must be accommodated based on individualized need, and set out a three-step test for examining whether the duty to accommodate has been met. The OHRC recommends changing the language in this line in the Bill to reflect this standard of accommodation to the point of undue hardship.
Impact of fees on low-income individuals
Consultees in the OHRC's age consultation noted that "Low income seniors are at a disadvantage because they have to take what they can afford in a retirement home, which may be substandard., The OHRC welcomes the government's steps to set care and safety standards across a range of care homes so that a lower income does not result in substandard care. Regulation, licensing, complaint mechanisms and inspections are critical pieces of enhancing the safety standards of retirement residences. However, the OHRC cautions that fees charged by the proposed Authority (section 21) to pay for these services will likely be passed directly onto residents, especially in for-profit retirement homes, and this could adversely affect people with limited incomes. The OHRC has heard concerns from organizations such as the Ontario Association of Non-Profit Homes and Services for Seniors that some non-profit retirement homes may not have the same ability to directly pass on costs. This may put housing and service levels at risk.
Fees must be carefully considered because they can adversely affect and lead to lack of access to housing and services for persons with low incomes, either by making housing and services they need unaffordable or by decreasing the level of services available. The government should consider methods of assisting low-income individuals or alternative means of providing funding to pay for these services.
The duty to accommodate
As noted earlier, retirement home providers have a duty to accommodate the needs of residents based on Code grounds, which could include disability, age, family status, gender identity or creed. This duty involves working with a resident when an accommodation request is made to identify how his or her needs could be met in a way that best respects dignity, responds to individualized need, and promotes inclusion and full participation in the community.
Various concerns about the duty to accommodate were expressed to the OHRC in its consultations. Organizations indicated how the use of mobility devices was sometimes not accommodated by retirement home providers. The OHRC heard that, in some retirement homes, only residents who did not require mobility devices such as wheelchairs or scooters were welcome in dining areas, and if residents could not enter the dining area on their own (or with a walker), they had to eat their meals in their room and sometimes had to pay an extra "tray service" for these meals to be delivered. Some homes had policies in place providing that no motorized vehicles were permitted in the common areas, which limited access to the elevators, front door and the dining area.
In addition, the OHRC heard about the importance and need for buildings to be inclusively designed to accommodate the needs of people with disabilities up front. For example, organizations representing Deaf individuals indicated that the lack of visual fire alarms in bedrooms, hallways and bathrooms, and the lack of shake-awake alarms means that Deaf persons are placed at risk and excluded within their living spaces. Buildings should be designed to accommodate the use of mobility devices, and other physical accommodations may also be necessary. Retirement home providers should also ensure they provide accommodation when communicating with people with disabilities; for example, by providing large-print information for people with visual disabilities.
The duty to accommodate is critical when considering the needs of people with mental health issues or dementia. The OHRC heard that staff in institutions must be knowledgeable about an older person's right to refuse treatment or care, a right that must be respected. In addition, although there are provisions in the Residential Tenancies Act that allow a care home to find an alternative housing arrangement if someone requires a level of care that exceeds what can be provided by the home, a retirement home provider still has to meet its duty to accommodate a resident. This is particularly relevant when an individual may be exhibiting behaviour that is related to a disability that may cause disruption. Eviction cannot be the first resort for behaviour that is related to a disability. Human rights case law has held that landlords must accommodate tenants whose disabilities may cause them to be disruptive, to the point of undue hardship, prior to eviction.
At the same time, the OHRC recognizes the challenges that retirement home providers face in meeting the needs of people with mental health issues while also considering the interests or the rights of others in the retirement community who may also be vulnerable. The OHRC recommends that in addition to providing training on caring for people with mental health issues and dementia, the Bill should specify that retirement homes put in place sound practices and policies to identify how they can meet their legal duty to accommodate people based on Code grounds, with a particular focus on mental health issues and dementia, and should provide training to staff on the duty to accommodate.
Restraints and confinement
In its consultations on age and mental health, the OHRC heard concerns about the over-use of restraints and confinement that may conflict with an individual's rights to liberty and security of the person. In addition, an individual's right to equal treatment under the Code may be violated if decisions about restraint and confinement are based on stereotypes about the person because of Code grounds, as opposed to a strict assessment of his or her health and safety needs. From a human rights perspective, as much as possible, decisions about confinement and restraints should not conflict with the guiding principles of dignity, fairness, security, participation and independence. They should be based on an objective assessment of the health and safety risks involved and must respond to individualized need.
A decision to confine or restrain a person may be a response to specific disability-related behaviour, including a mental health issue, Rights to liberty and security of the person for persons with disabilities are now enshrined in international law, specifically the Convention on the Rights of Persons with Disabilities, which Canada has signed and ratified. In addition, in 1991, the UN General Assembly adopted the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (PPMI), which lays out certain rights specific to treating people with mental health disabilities. Principle 9 lays out rights with respect to treatment and care, including:
9(1). Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.
9(2). The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.
If retirement homes are subject to the Residential Tenancies Act, this puts the responsibility to confine or restrain on the landlord or his or her agents. At the same time, the OHRC recognizes that in rare cases, the health and safety needs of the individual, staff and/or other tenants may sometimes necessitate restraint or confinement. Overall, the OHRC supports the movement of the Ministry of Health towards a restraint-free environment.
The OHRC will defer to the expertise of the Advocacy Centre for the Elderly, the Canadian Association of Retired Persons, and medical organizations such as the Registered Nurses Association of Ontario to provide specific recommendations regarding restraint and confinement procedures. However. the OHRC emphasises that if retirement homes are permitted to restrain and confine individuals, clearer criteria and greater safeguards are needed around their use and review. These should at least meet the standards laid out by Long Term Care Homes Act, 2007.
It appears that some of the criteria for confinement laid out in the Bill are unclear. In section 70(3)(d), it proposes that in addition to trained medical personnel, a care plan can identify that a "prescribed person" can agree to confinement of an individual. The nature of this "prescribed person," and whether they will have professional medical qualifications, is unclear. The OHRC recommends the Committee consider section 9(2) above in the PPMI when considering strict safeguards and when defining who can make decisions to restrain or confine, to better protect the rights of residents, including people who have mental health and other disabilities.
In addition, the Bill and regulations will require clarity around how residents can object or raise issues with respect to the treatment provided by the retirement home. The Long Term Care Homes Act indicates that residents can appeal to the Consent and Capacity Board if they disagree with the decision made by their substitute decision-maker to confine them. The same provisions do not currently exist in the Bill, which leaves this to regulation (section 70(6». At the same time, in the Bill, there appears to be no right of review or notice to the resident described with respect to restraint.
The OHRC recommends that the Bill or regulations should clearly layout the process for rights of review, and that this be expanded to include restraint as well as confinement.
The OHRC is pleased that the Bill lays out the provision for rights advice to residents; however, the Bill places the onus on the resident to ask for a rights advisor (s.70(10)). In contrast, in the Long Term Care Homes Act, the responsibility for notifying a rights advisor is put on the licensee of the long-term care home (s.34(4)(1)). In the Bill, there appears to be no provision for rights advice relating to restraint, only confinement. When individuals are confined or restrained, it may be very difficult for them to ask for rights advice. The OHRC recommends amending the Bill to ensure that people are provided with rights advice on both restraint and confinement, and indeed any issue relating to consent and capacity. Retirement home providers should be obligated to contact a rights advisor for the resident when situations of restraint and confinement occur, or when asked to by the retirement home resident.
Preventing and responding to abuse
The OHRC believes it is a positive step to include the provisions for licensing, training of staff around preventing and responding to abuse, and provisions around whistleblowing. The OHRC has heard concerns that fear can act as a deterrent for reporting abuse. Families may be too afraid to complain about the abuse of older relatives because they fear retribution against their loved ones in the form of poorer care or further abuse. It is important that the whistle-blowing provisions of the Bill (s. 115) include residents and family members.
Section 75 lays out that certain misconduct should be reported to the Registrar. In section 75(2), it indicates that abuse by anyone or neglect by the licensee or staff of a resident only need be reported if it results in harm or a risk of hann to the resident. The OHRC recommends rewording this section to ensure that conduct that is abusive or neglectful is always reported as it presumes that it will result in hann or risk of harm to the resident.
Staff and volunteers
Sections 64 (1) and (2) of the Bill indicate that staff and volunteers shall be screened and such screening measures "shall include a police background check as defined in the regulations, unless the person being screened is under 18 years of age."
Screening people based on police background checks can have a discriminatory impact on people with mental health issues. For some, mental health disabilities may result in non-criminal contact with the police, who retain a record of the contact, and may hold this infonnation for a number of years or indefinitely. Although these individuals, their families or others may have contacted the police for emergency assistance, the information may later be disclosed through police records checks. This can create significant barriers when the person applies for employment or volunteer positions.
Information about an individual's past apprehension by police based on mental health may not be relevant to bona fide occupational requirements of a job or volunteer position. At the same time, vulnerable sector agencies have identified that in some cases, information about an individual's mental health may be relevant to the essential duties of caring for vulnerable persons.
The OHRC has been working actively on this concern with vulnerable sector agencies, police and mental health advocates. It has yet to finalize its position on this issue; however, it has released an Interim Guide on Police Record Checks for Vulnerable Sector Screening, which is available on its website at www.ohrc.on.ca. If the Act should come into force, the OHRC asks that it be consulted when the regulations regarding screening measures for staff and volunteers are developed.
As the population ages, the OHRC will continue to be active on issues affecting how we treat aging and vulnerable Ontarians. The OHRC welcomes opportunities to work with the Committee and the Seniors' Secretariat to build a system that makes aging a time of equity and dignity for all residents of Ontario.
 Ontario Human Rights Commission, Time for Action: Advancing Human Rights for Older Ontarians, (June 2001). p. 74. Recommendation 25.
 Section 47(2) of the Code states that where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.
 If a prima facie case of discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the standard, factor, requirement or rule was adopted for a purpose or goal that is rationally connected to the function being performed, was adopted in good faith, the belief that it is necessary for the fulfillment of the purpose or goal, and is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship. British Columbia (Public Service Employee Relations Commission) v. BCGSEU  3
S.C.R. 3, ["Meiorin"].
Time for Action, supra note 1, at p. 50.
Walmer Developments v. Wolch, (2003), CanLII42163 (ON S.C.D.C.).
 For example, Article 14 -Liberty and security of the person, states: 1. States Parties shall ensure that persons with disabilities, on an equal basis with others: a) Enjoy the right to liberty and security of person; and b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.