This section of the paper provides an overview of enforcement mechanisms utilized in government-funded developmental services systems in selected national and international jurisdictions. Within Canada, we examined four provinces: Alberta, British Columbia, New Brunswick and Quebec. Outside Canada, we examined selected provinces or states in Australia, the United States and the United Kingdom. 

The purpose of this section is to facilitate a basic understanding of the enforcement mechanisms available in other jurisdictions in order to determine innovative approaches to enforcement that could potentially influence or be replicated or adapted in Ontario. This is not an exhaustive review or analysis of the laws and practices in these jurisdictions, as such a review is beyond the scope of this paper. For accuracy, we use the terminology employed in each jurisdiction.

 

A. Alberta

1. Government Inspections and Oversight of Developmental Services

Alberta’s Ministry of Seniors and Community Supports administers the Persons with Development Disabilities (“PDD”) Program, the focus of which is to support the community inclusion and independence of adults with intellectual disabilities.[123] The PDD Program funds, monitors and evaluates the provision of specific services for adults with intellectual disabilities, including  community living supports, employment supports, community access supports to promote participation in society, and specialized community supports.[124] These services supplement the support of family, friends and community members and assist the individual in living as independently as possible in the community.[125]

Six regional PDD Community Boards work with individuals, their representatives and families, and service providers to deliver services throughout Alberta. Their purpose is to manage the provision of services, determine community priorities, assess the service needs of the region, and work with local agencies to provide services.[126] The Community Boards are agents of the Crown and are overseen and evaluated by the Ministry of Seniors and Community Supports. 

The PDD Program is governed by the Persons with Developmental Disabilities Community Governance Act.[127] The Act contains a preamble which states that statutory programs, resources and services are, “best provided to adults with developmental disabilities in a manner that acknowledges responsibility to the community and accountability to the Government through the Minister.”[128] The Act states that the role of the Minister includes evaluating results with respect to services for adults with developmental disabilities, setting standards for the provision of services, and monitoring and assessing the Community Boards.[129] Community Boards are required under the Act to manage the provision of services to adults with developmental disabilities in a way that is responsive to the needs of those adults.[130]

The Act also sets out inspection powers. An inspector can be appointed by the Minister or the Community Board, or can be a member of the Community Board itself.[131] The inspector is authorized to ensure compliance with the Act by entering premises, requiring the production of documents or records in the possession of the Board or service provider, copying those records, and inspecting and taking samples of any material, food, medication or equipment being used in the provision of services to adults with developmental disabilities. An inspector cannot exercise any of these powers without obtaining the permission of the service provider.[132]

The Minister may appoint someone to conduct an inquiry in respect of services for which funding is allocated by a Community Board, or in respect of how the Community Board carries out its activities under the Act.[133] For these purposes, the person appointed to conduct the inquiry has all of the powers, privileges and immunities of a commissioner under the Public Inquiries Act.

 

2. Accreditation of Service Providers

The Alberta Council of Disability Services, a representative organization for 130 agencies that provide services to people with intellectual disabilities, offers accreditation to service providers that meet the criteria and standards outlined in a document entitled Creating Excellence Together.[134] Under the agreement that governs the relationship between service providers, Community Boards and the PDD Program, service providers must comply with these standards or another recognized accreditation process.[135]  The extent to which a service provider has complied with these criteria is measured through an on-site visit conducted by the Council of Disability Services. Two levels of accreditation are possible: primary and advanced. Both levels address issues such as whether people who receive developmental services are supported to make decisions about every-day matters; are treated with dignity and respect; have strong, positive relationships; are included in the community; are supported to take care of their health; are free from abuse; and are able to access fair, equitable and reasonable dispute resolution processes.[136]

 

3. Complaints and Appeal Mechanisms

The PDD Program emphasizes that disputes are to be resolved at the service provider, Community Board or regional level wherever possible. Individuals who have concerns or complaints about decisions made regarding their services can file an appeal using the service providers’ appeal process. The Community Board is responsible for ensuring that the appellant is given adequate access to dispute resolution and appeal processes.[137]

The PDD Program has an appeal process that individuals who receive services can use when they are unhappy with decisions of a Community Board or PDD staff member that affect them. The appeal process is independent from the program itself. Decisions that are not subject to appeal are those that affect contractual arrangements such as decisions to enter into, amend or terminate a contract with a service provider. Reductions or suspensions of services, or disagreements concerning the level of services being provided can be appealed.[138] A person files an appeal using the Notice of Appeal form, which must be completed and submitted to the Appeal Secretariat within 30 days of receiving the decision that is the subject of the appeal. The Secretariat contacts the person who filed the appeal to discuss the concern, and may refer the matter for dispute resolution or mediation. Dispute resolution is voluntary and entails referring the appeal to the CEO of the relevant Community Board, who may investigate the appeal. Likewise, mediation is voluntary and is generally pursued when dispute resolution has not been successful.[139] The majority of complaints made to the appeal process are resolved through the mediation process. The PDD program may also refer individuals who require support to the Alberta Association for Community Living. [140]

If an appeal is not resolved within 45 days, a hearing is scheduled. The hearing is conducted by an Appeal Panel, established under section 15 of the Act, and made up of up to three individuals from the eight PDD Appeal Panel Members who have been appointed by the Minister. Prior to the hearing each party submits written information about the appeal. At the hearing the appellant and the Community Board are provided with an opportunity to present their case and question the other party. The Appeal Panel may also question either party. The rules of evidence that apply to judicial hearings do not apply to hearings before the Appeal Panel, and the panel must consider any evidence that is, in its opinion, reliable and relevant to the matter being heard and weigh it accordingly.[141] The Appeal Panel renders its decision in writing, generally within one month of the hearing. The panel can change, agree with or reverse the decision that is the subject of the appeal. Decisions of the Appeal Panel are final. Previous decisions of the panel do not establish binding precedents and the panel generally does not award costs.[142]

The PDD program also monitors complaints it receives using a dispute-tracking system. This allows the program to oversee agencies that receive many complaints, and work with service providers to develop training, policies and plans to address systemic problems.[143]

 

4. Inspections and Complaints for Supportive Living Accommodations

The Supportive Living Accommodation Licensing Act (“SLALA”) applies to supportive living accommodation that is provided to 4 or more adults who are not related to the operator, and where the operator provides for services related to safety, housekeeping or meals. This includes residential facilities such as group homes, although the Act does not specifically state this.[144] The SLALA sets out a framework for the reporting, investigation, and resolution of complaints using a variety of positions designated by the Minister, including directors, inspectors, complaints officers, and investigators. While inspections are conducted by inspectors at the request of the director, complaints officers and investigators become involved as part of the complaints process set out in the Act.

At the request of the director, the inspector may exercise a number of powers in order to ensure compliance with the SLALA, its regulations, an order issued under the Act, or a condition of a licence. These include the power to enter the supportive living accommodation at any reasonable hour and inspect it, to require the production of records and documents that pertain to the supportive living accommodation and examine and copy them, to inspect and take samples of material, food, and equipment used in the supportive living accommodation, to perform tests, take photographs or make recordings, and to interview the operator of the supportive living accommodation.[145] The inspector can only exercise these powers with the permission of the operator of the supportive living accommodation, but the inspector can only enter a resident’s unit with the permission of the resident or the resident’s legal representative.[146] The results of the inspection must b