[1] For ease of reference, we will refer to older adults living in all three congregate settings as “residents” although persons living in hospitals are legally known as “patients” and persons in retirement homes are “tenants” pursuant to the Residential Tenancies Act.

[2] Law Commission of Ontario, The Law as it Affects Older Adults: Moving the Project Forward – Report of the Preliminary Consultation (December 2008) at 4-10, online: .

[3] Roderick MacDonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass et al. eds., Access to Justice for a New Century: The Way Forward (Toronto: Press, 2005) 19 at 23-24.

[4] Reem Bahdi, Background Paper on Women’s Access to Justice in the MENA Region (2007) at 3, online: .

[5] S.O. 2007, c. 8.

[6] The Canada Post Corporation Act, R.S.C., 1985, c. C-10 makes it an offence to open or abandon mail. Section 48 says: “Every person commits an offence who, except where expressly authorized by or under this Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, knowingly opens, keeps, secretes, delays or detains, or permits to be opened, kept, secreted, delayed or detained, any mail bag or mail or any receptacle or device authorized by the Corporation for the posting of mail.” Section 49 says: “Every person commits an offence who unlawfully and knowingly abandons, misdirects, obstructs, delays or detains the progress of any mail or mail conveyance.”

[7] R.S.O. 1990, c. P. 40.

[8] Ontario, Ministry of Health and Long-Term Care, Hospitals, online: (last modified: 15 June 2009).

[9] Public Hospitals Act, R.R.O. 1990, Reg. 964, Classification of Hospitals, s. 1(1).

[10] Public Hospitals Act, R.R.O. 1990, Reg. 552, s. 10.

[11] Ibid., Table 2.

[12] Canadian Institute for Health Information, The “Younger” Generation in Ontario Complex Continuing Care (June 2007) at 2 and 20, online: .

[13] Canadian Institute for Health Information, Hospital Report: Rehabilitation (2007) at 2, online: .

[14] S.O. 2006, c. 17, s. 2(1).

[15] Ontario Seniors’ Secretariat, Consultation Backgrounder for Ontario’s Consultation on Regulating the Retirement Home Industry (Winter 2006-2007) at 4, online: .

[16] Canadian Housing Mortgage Corporation, Seniors Housing Report (2009) at 4.

[17] Ibid. at 5.

[18] For example, see the Building Code Act, 1992 , S.O, 1992, c. 23; Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4; Health Protection and Promotion Act, R.S.O. 1990, c. H.7; Regulated Health Professions Act, 1991, S.O. 1991, c. 18; Substitute Decisions Act, 1992, S.O. 1992, c. 30; Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A; Personal Health Information Protection Act, 2004, S.O. 2004, c. 3; Human Rights Code, R.S.O. 1990, c. H.19; Criminal Code of Canada, R.S.C. 1985, c. C-46.

[19] R.S.O. 1990, c. N.7.

[20] R.S.O. 1990, c. H.13.

[21] R.S.O. 1990, c. C.9.

[22] Email from Kim Hewitt, Information Request Coordinator, Health System Information Management and Investment Division, Ministry of Health and Long-Term Care, to Lisa Romano, Research Lawyer, ACE (16 July 2009).

[23] Ibid.

[24] Ibid. Ontario has 354 for-profit nursing homes and 113 not-for-profit nursing homes.

[25] Ibid. There are 103 municipal homes for the aged in Ontario.

[26] Telephone conversation between Richard Lee, Senior Financial Consultant, Financial Management Branch, Ministry of Health and Long-Term Care, and Lisa Romano, Research Lawyer, ACE (22 July 2009).

[27] Canadian Institute for Health Information, Antipsychotic Use in Seniors: An Analysis Focusing on Drug Claims, 2001 to 2007 (2009) at 15, online: .

[28] Ontario, Ministry of Health and Long-Term Care, prepared by Monique Smith, Parliamentary Assistant, Commitment to Care: A Plan for Long-Term Care in Ontario (Spring 2004) at 8, online: .

[29] According to the Ministry of Health and Long-Term Care, based on the fall 2008 Levels of Care Classification review of 43,334 residents, 6.26% of these residents are younger than 65 years of age. There are more than 76,000 long-term care beds in the province, and it is not known how these residents were chosen to be classified, therefore the numbers may not be statistically accurate: supra note 22.

[30] Recommendations 22 through 25 deals with specialized facilities and units, Office of the Chief Coroner, Recommendations from the Inquest into the Deaths of Ezzeldine El Roubi and Pedro Lopez (Inquest Dates: January 31 – April 18, 2005).

[31] Neil Gunningham & Duncan Sinclair, “Instruments for Environmental Protection” in Smart Regulation: Designing Environmental Policy (Oxford: Clarendon Press, 1998) at 42.

[32] Ibid.

[33] Ibid. at 44.

[34] Ibid. at 46.

[35] Michael Rustad, “Neglecting the Neglected: The Impact of Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits” (Suffolk University Law School: Legal Studies Research Paper Series, 2007) at 46, online: .

[36] The Honourable Warren Winkler, The Warren Winkler Lectures on Civil Justice Reform, University of Ottawa, Faculty of Law, Civil Justice Reform – The Toronto Experience (September 12, 2007), online: .
[37] It should be noted that ACE exempts the client’s principal family residence in arriving at the total value of assets in determining financial eligibility for services.

[38] Law Society of Upper Canada, Rules of Professional Conduct (2000).

[39] Rule 2.04(1) refers to the definition of a conflict of interest while Rules 2.04(2) and (3) refer to the avoidance of a conflict of interest.

[40] The commentary for Rule 2.01(1) says: “As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with legal matters to be undertaken on the client’s behalf.”

[41] Supra note 36.

[42] R.S.O. 1990, c. F.3, s. 61(2).

[43] McDonnell Estate v. Royal Arch Masonic Homes Society, [1998] 5 W.W.R. 268.

[44] R. v. Khelawon, [2006] 2 S.C.R. 787.

[45] R. v. Campoli, [2009] O.J. No. 2114 (O.C.J.).

[46] S.O. 1992, c. 30.

[47] S.O. 1996, c. 2, Sched. A.

[48] Brad Hagen et al., “Antipsychotic Drug Use in Canadian Long-Term Care Facilities: Prevalence, and Patterns Following Resident Relocation” (2005) 17:2 International Psychogeriatrics 179 at 180.

[49] Supra note 27 at 1.

[50] Ibid. at 16.

[51] Ibid. at 15.

[52] These comments are based on statistics from two different studies indicating that 29.8% and 30.8% of long-term care home residents are prescribed antipsychotic medications: supra note 48 at 188.

[53] Ibid. at 188-189.

[54] Susan Bronskill et al., “Neuroleptic Drug Therapy in Older Adults Newly Admitted to Nursing Homes: Incidence, Dose, and Specialist Contact” (2004) 52 Journal of the American Geriatrics Society 749 at 753.

[55] Ibid.

[56] Paula Rochon et al., “Variation in Nursing Home Antipsychotic Prescribing Rates” (2007) 167 Archives of Internal Medicine 676 at 682.

[57] Health Care Consent Act, s. 11.

[58] Nursing Homes Act, R.R.O. 1990, Reg. 832, s. 127(1).

[59] Nursing Homes Act, Reg. 832, s. 127(2)(b).

[60] Ontario Health Quality Council, Q Monitor: 2009 Report on Ontario’s Health System (2009) at 80-81, online: .

[61] K.P. v. C. P. (April 15, 2004) File No. 7690, Health Professions Appeal and Review Board.

[62] Nursing Homes Act, s. 2(2)6ii.

[63] Health Care Consent Act, s. 17.

[64] College of Physicians and Surgeons of Ontario, Consent to Medical Treatment, Policy Statement #4-05 (January/ February 2006), online: .

[65] Ibid.

[66] The definition of evaluators can be found in Reg. 104/96 pursuant to the Health Care Consent Act.

[67] Email from Lorissa Sciarra, Registrar and Senior Manager, Consent and Capacity Board, to Lisa Romano, Research Lawyer, ACE (19 June 2009).

[68] Office of the Public Guardian and Trustee, The Role of the Office of the Public Guardian and Trustee, online: .

[69] Substitute Decisions Act, ss. 27 and 62.

[70] Residential Tenancies Act, s. 140(1).

[71] Residential Tenancies Act, s. 140(2).

[72] Telephone conversation between Susan Benger, Freedom of Information Coordinator, Landlord and Tenant Board and Lisa Romano, Research Lawyer, ACE (30 June 2009).

[73] The ACTION Line is staffed by employees of the Ministry of Government Services: Letter from Lynne Gottschling, Access and Privacy Coordinator, Ministry of Government Services, to Lisa Romano, Research Lawyer, ACE (16 July 2009).

[74] Of the 2,895 calls to the ACTION Line, 1,152 calls resulted in an investigation by a compliance advisor where no complaint was filed, 1,578 calls resulted in an investigation where a complaint was verified and 165 calls had no investigation status identified: Letter from Mary Salvatore, Program Advisor, Access and Privacy Office, Ministry of Health and Long-Term Care, to Lisa Romano, Research Lawyer, ACE (17 July 2009).

[75] Nursing Homes Act, s. 2(2)9.

[76] Nursing Homes Act, Reg. 832, s. 121.

[77] Supra note 28 at 21.

[78] Chinta Puxley, “Majority of Ontario nursing homes fail some basic standards” Globe and Mail (2 July 2008), online: .
[79] Ontario, Ministry of Health and Long-Term Care, Performance Improvement and Compliance Branch, New Inspection Process – Fact Sheet (June 2009).

[80] Nursing Homes Act, s. 25(2) – (4).

[81] ACE is of the opinion that in these circumstances, the Trespass to Property Act, R.S.O. 1990, c. T.21 cannot be used to prohibit visitors. Section 2(1) of the Trespass to Property Act says:

Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

Residents of long-term care homes have the right to have a visitor without interference. Section 9 of the Resident’s Bill of Rights states: “Every resident has the right to communicate in confidence, to receive visitors of his or her choice and to consult in private with any person without interference.” Thus, section 2 of the Trespass to Property Act confers a right at law for the resident to have a visitor, meaning the Trespass to Property Act cannot be used to bar visitors from entering the premises.

[82] Email from Tracy Fairfield, Complaints Response and Information Service, Ontario Retirement Communities Association to Judith Wahl, Executive Director, ACE (2 July 2009).

[83] Nursing Homes Act, s. 2(2).

[84] Nursing Homes Act, s. 2(4).

[85] Long-Term Care Homes Act, s. 3(3).

[86] Long-Term Care Homes Act, s. 3(4).

[87] Nursing Homes Act, s. 29(1).

[88] Nursing Homes Act, s. 29.1.

[89] Long-Term Care Homes Act, s. 56(1).

[90] Nursing Homes Act, s. 30.

[91] The powers of Family Councils are set out in section 60 of the Long-Term Care Homes Act.

[92] Nursing Homes Act, s. 30(e).

[93] For a thorough explanation of the problem and ACE’s interpretation of the legal issues, please refer to Jane Meadus’ paper entitled Discharge to a Long-Term Care Home from Hospital at www.acelaw.ca.

[94] Concerned Friends of Ontario Citizens in Care Facilities, Home Page, online: .

[95] Concerned Friends of Ontario Citizens in Care Facilities, History, online: .

[96] Supra note 60 at 75.

[97] Ibid. at 83.

[98] While residents may leave the home as they wish, it is acceptable for the home to require them to