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A Community of Interests i 



OAZON 
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UOil 




The Report of the Commission of Inquiry into 
Unregulated Residential Accommodation 




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Commission of Inquiry 76 coiiege street 416/327-2427 


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Into Unregulated Residential eth Floor ^^' „,,,,, 

^ Toronto. Ontario 416/327-2425 

Accommodation m7ain3 


Ontario 






Commission d'enquete 76, rue coiiege 416/327-2427 




sur les Etablissements T^^T,r., . ]ft°Ji'VIo. 

, , , Toronto (Ontario) 416/327-2425 

residentiels non-reglementes m7ain3 




To His Honour 




The Lieutenant-Governor of the 




Province of Ontario 




Dear Sir: 




I am pleased to submit herewith the Report of the 




Commission of Inquiry Into Unregulated Residential 




Accommodation . 


N 






Ernie Lightman, PhD ^"^V 




Commissioner \ \ 




May 1, 1992 


' 


Ernie S. Lightman, PhD CommissionerlCommissaire 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 



A Community 
of Interests 



THE REPORT OF THE COMMISSION OF INQUIRY 
INTO UNREGULATED RESIDENTIAL 
ACCOMMODATION 

ERNIE S. LIGHTMAN, Ph.D. 

Commissioner 



JOHN KENEWELL, LL.B. 
Director of Policy and Research 



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Credits: 

Design: Peter Maher 
Cover Illustration: 

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Pencil on paper board mounted on wood 

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Collection of Imperial Oil, Toronto 

Photo Courtesy of Mira Godard Gallery 
Editor: Chads Wahl 
Copy Editor/Proofreader: Alison Reid 
Production Consultant: Paula Chabanais &. Associates Limited 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 



Contents 



Letter of Transmittal 
Acknowledgements viii 
Commission Staff ix 
Executive Summary xi 

Prologue 1 

PART i: WHERE YOU LIVE CAN MAKE YOU VULNERABLE 

1: An Introduction 7 

BASIC DEFINITIONS 8 

2: Who Are Vulnerable Adults? 1 7 
REST-HOME RESIDENTS 22 

3: Residents Must be Central 35 

EMPOWERMENT AND PROTECTION 36 

THE REST HOME: ACCOMMODATION OR CARE? 42 

4: The Regulatory Dilemma 56 

A RANGE OF VIEWS 60 

APPENDIX: EXPERIENCE IN THREE PROVINCES 78 



PART II: THE REST HOME AS HOME 

5: The Landlord and Tenant Act and Rent Control 83 

REST HOMES AND THE LANDLORD AND 

TENANT ACT 88 

REST HOMES AND RENT CONTROL 99 

6: Life at the Top 108 

ENTERING THE RETIREMENT HOME 110 
RELATED MATTERS 123 

7: Life Near the Bottom 132 

"NON-HOSTEL" ACCOMMODATION 134 

HOSTELS 136 

SOME SHORT-TERM MEASURES 154 



PART III: EMPOWERING AND PROTECTING 
VULNERABLE ADULTS 

8: Two Existing Protections 1 71 
9: A Residents' Bill of Rights 1 76 

THE BILL OF RIGHTS 179 
A REST HOMES TRIBUNAL 185 
ADVOCACY 193 
10: Safety Standards 198 

MINIMUM SAFETY STANDARDS 199 
HEALTH PROTECTION 211 
PROTECTION FROM FIRE 220 
THE PHYSICAL ENVIRONMENT 230 
ENFORCING MINIMUM STANDARDS 239 



PART IV: RELATED ISSUES 

11: Housing: Supply and Choice 247 

APPENDIX: SUPPORTIVE HOUSING IN ONTARIO 257 

Yl: Professional and Human Resources 264 

THE STAFF IN REST HOMES 265 

INDUSTRIAL RELATIONS 270 

THE MEDICAL ROLE 273 

REFERRALS AND PLACEMENTS TO UNREGULATED 

ACCOMMODATION 279 
13: Provincial-Municipal Issues 286 

The Last Word 291 

APPENDIX: ASPECTS OF LONG-TERM CARE 300 

Commission's Recommendations 304 
List of Written Submissions 33-? 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

Acknowledgements 




The Commission wishes to thank the many individuals, 
groups, and agencies who contributed to our work in so 
many ways: 

most particularly, the residents of rest homes across Ontario, 
who shared with us their experiences and opinions, both 
publicly and in confidence; 

the rest-home operators and their associations, who supported 
our activities and facilitated our site visitations with courtesy 
and grace; 

the many community groups and agencies who made submis- 
sions, assisted in the organization of our public consultation 
process, and challenged our ideas; 

the professionals in many fields who talked and wrote of their 
concerns and their suggestions for reform, often based on 
years of practical experience; 

the government ministries and departments, both provincial 
and municipal, who aided and accelerated our research 
inquiries, and provided information and advice; 
everyone at the Office of Seniors' Issues, Ministry of Citizen- 
ship, who welcomed our staff into their crowded quarters and 
provided administrative backup and support with warmth and 
efficiency; 

Chads Wahl, who once again has brought her amazing edito- 
rial skills to bear on a very long manuscript. 



VIII 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

Commission Staff 



Ernie S. Lightman, Commissioner, received his Ph.D. in eco- 
nomics and is a professor of social policy at the University of 
Toronto. 

John Kenewell, Director of Policy and Research, is a member 
of the Ontario Bar and was seconded to the Commission by 
the Ministry of Community and Social Services, where he is a 
Senior Policy Adviser. 

Janet Cornfield, Policy Analyst, holds a diploma in nursing and 
is completing the Gerontology Certificate program at Ryerson 
Polytechnical Institute. 

Millinese Vaughan, Project Manager, has held a variety of 
senior administrative and managerial positions. 



IX 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA^^ 

Executive Summary 



This Commission was created following the death of 
Joseph Kendall, a resident of Cedar Glen, an 
unregulated boarding home near Orillia, Ontario. 
The coroner's inquest into Mr. Kendall's death was 
the longest in Canadian history and produced 
more than eighty recommendations; key among 
these was that a Commission be appointed to inquire into 
unregulated residential accommodation in which vulnerable 
adults reside. 

This Commission was appointed two days after the coro- 
ner's report was filed, in November 1990, and began its work 
on January 1, 1991, under the Public Inquiries Act. The Com- 
mission produced a widely circulated Discussion Paper in 
March 1991, which defined certain parameters for the Inquiry 
and raised several central questions for examination. The 
Commission consulted extensively, travelled to several com- 
munities across Ontario, visited a great variety of boarding, 
rest, and retirement homes, and met with residents, members 
of the public, and interest groups. We received some 230 writ- 
ten submissions. 

Many vulnerable adults in Ontario live in unregulated set- 
tings, from luxury retirement homes to boarding/lodging/rest 
homes in which residents' only source of income may be 
social assistance [Family Benefits/GAINS(D) or General Wei- 



xii Executive Summary 



1 Other than fire, public health, 
and construction standards 
that apply to all premises. 



fare Assistance (GWA)], or Old Age Security (and its supple- 
ments). The accommodation is "unregulated" because there 
are no provincial licensing, standards^ or inspection; nor are 
there other viable protections for the lives and well-being of 
residents. 

All premises within the scope of this Inquiry offer residents 
housing and limited care services (assistance with the activi- 
ties of daily living); often some or all meals are provided. Vir- 
tually all are operated on a commercial or for-profit basis. 
Some are very small; one facility has 450 beds. Research con- 
ducted for the Commission uses census data to estimate there 
are 47,500 vulnerable adults living in unregulated accommo- 
dation in Ontario. 

Some of the settings visited by the Commission appear to 
be exemplary: residents seem well cared for and content. 
Other premises revealed inadequate physical environments 
and unacceptably low-quality care: abuse of residents — physi- 
cal, emotional, financial, and sexual — may occur with great 
regularity. 

It is our general view that any setting in which both 
accommodation and care are supplied by operators creates a 
power imbalance between sellers and buyers, and the poten- 
tial for abuse of this power. 

The principal aim of this Inquiry has been to redress these 
structural imbalances, to empower vulnerable adults who live 
in unregulated settings, and to assist them to assume control 
of their lives to the maximum extent possible. Such control 
includes making decisions about where, how, and with whom 
to live. An allied goal of the Inquiry is to offer protection to 
those residents of rest homes who wish it. 

The Commission considered two broad approaches: 



1. Comprehensive regulation by the government of 
Ontario, on the nursing-home model, or by municipalities 
through municipal by-laws. 
This approach would involve mandatory minimum stan- 



Executive Summary xiii 



dards set by government (provincial or municipal); govern- 
ment inspection; and, possibly, government funding to 
ensure these standards can be met. The rest home would 
be viewed as an institution, part of a continuum of institu- 
tional care — in effect, a low-level, care-providing commer- 
cial nursing home. 

2. An empowerment approach, in which residents are 
given rights and the means to ensure that these rights are 
respected, combined with limited regulation to attain mini- 
mum standards in areas where a rights-based approach is 
unlikely to be effective. 

This approach considers the rest home to be a perma- 
nent community residence rather than a place of tempo- 
rary sojourn or a first-stage, low-level nursing home. 

The Commission rejects the first alternative. The protections 
promised by comprehensive regulation are uncertain, the 
empowerment of residents modest or non-existent. This 
approach would also be costly to deliver and enforce; experi- 
ence in other areas — particularly the nursing-home sector — 
also suggests there are many technical and operational obsta- 
cles to effective regulation. 

The Commission recommends the second alternative, 
which should better achieve empowerment and protection, at 
lower overall cost. 

To view the rest home as a form of permanent community 
housing is compatible with recent government directions: the 
development of new care-giving institutions is not being con- 
templated today. Instead, the goal is community care: to serve 
care needs in the community whenever possible; to lower the 
rate of institutionalization; and to limit institutional beds to 
those whose care needs are so high that they cannot be met 
in the community. As well, recent initiatives favour delinking 
(or separating) accommodation from the provision of care. 
The former would be provided by landlords and the latter 
delivered by non-profit community-based agencies to people 



xiv Executive Summary 



in their own liomes. Those for whom rest homes are home 
would then be fully eligible for all in-home services now 
available or developed in future under the long-term-care ini- 
tiative. 

We define "rest homes," whether retirement or boarding 
homes, as residences in which owners/operators provide or 
are paid to provide care services, or cause others to under- 
stand that they provide care. 

We call for mandatory registration of all rest homes with 
the municipality. Registration merely makes rest-home opera- 
tors known to municipal authorities: it is not dependent on 
meeting particular standards; and registrations, unlike nursing 
home licences, cannot be bought or sold. Registration will 
end the current practice by which rest homes may operate 
totally unknown to any level of government. 

The Commission recommends a multi-faceted approach to 
empowerment while offering protection to rest-home resi- 
dents. Specific elements include the following: 

1. a Rest Home Residents' Bill of Rights, which contains 
protections and entitlements regarding the physical accom- 
modation and the quality of care; 

2. a Rest Homes Tribunal (RHT), through which residents, 
with assistance as desired, will seek enforcement of the 
protections and entitlements set out in the bill of rights; the 
RHT is premised on adequate advocacy supports, both 
informal — by relatives and friends — and those to be creat- 
ed under Bill 74, the proposed Advocacy Act, 1991; 

3. mandatory reporting of abuse in rest homes; 

4. a police check of operators through the Canadian Police 
Information Centre to determine any criminal record, prior 
to registration; 

5. clarification of minimum safety standards regarding 
health, fire, and the physical environment, including the 
Building Code and municipal occupancy by-laws. (In con- 
sidering minimum standards, the Commission has been 
particularly concerned to avoid the loss of low-income 



Executive Summary xv 



housing that might follow from standards — and costs — that 
are too high.) 

The Commission also proposes to increase the account- 
ability of local inspectors to residents for non-response or 
delayed/inadequate response to residents' complaints. No 
inspection visit should be announced in advance; 

6. mandatory minimum staff-to-resident ratios in all rest 
homes at all hours. These ratios will be premised on a 
safety function, i.e., in case of emergency, staff will be 
expected to obtain appropriate assistance expeditiously. 
The ratio is not premised on staff providing ongoing care 
to residents; 

7. a minimum "competence" standard for all staff who 
assist with medications. Operators should not be required 
to assist residents with medications; however, should they 
choose to do so, staff must be adults, able to read and fol- 
low prescribed directions, and able to identify and commu- 
nicate with each resident. They will not be required to 
have any medical training. 



2 Accommodation exempted 
from the LTA based on these 
criteria will also be exempted 
from our definition of a "rest 
home." 



Following directly from our view of the rest home as perma- 
nent residential accommodation, the Commission also recom- 
mends: 

1. coverage of all rest homes under Part IV of the Landlord 
and Tenant Act (LTA); 

2. coverage of all rest homes under the proposed Rent 
Control Act (RCA). 



These coverages should address many of residents' most com- 
monly expressed problems, including capricious temporary or 
permanent eviction; failure to respect residents' privacy; 
denial of access to visitors; and sudden steep rises in costs. 

We have also recommended criteria for LTA coverage for 
group homes, supportive housing, and rehabilitative and ther- 
apeutic residences. 2 

Amendments to the LTA and proposed RCA are necessary 



xvi Executive Summary 



to accommodate the special nature of rest homes. For exam- 
ple, eviction of a tenant can be time-consuming and difficult 
under the LTA; yet in some cases, particularly where accom- 
modation is shared and living is communal, rapid departure is 
essential. Residents' care needs may suddenly exceed those 
that can be met in a rest home (either with operator- or com- 
munity-supplied services); the result may be severe disruption 
of the residence and even physical danger to operators and 
other residents. 

The Commission is satisfied there are sufficient grounds for 
eviction under the LTA, but timeliness is a problem. We rec- 
ommend a new "fast-track" procedure under LTA through 
which operators will be able to obtain interim orders to tem- 
porarily remove residents from the premises when the 
behaviour of those residents likely meets existing grounds for 
eviction, and when delay is likely to cause serious harm to the 
person or property of operators or other residents. 

Our approach to rent control differs from that of the 
February 1991 Ministry of Housing Green Paper on Rent Con- 
trol. That document would have required operators to 
"debundle" (i.e., sell separately) accommodation and care ser- 
vices; all care would be sold as optional extras. We recom- 
mend that operators be permitted to sell a mandatory package 
including accommodation, meals, and care services. However, 
whatever is sold on a mandatory basis must be fully subject to 
rent control. The prices of optional care services will not be 
controlled; however, the timing of increases will be restricted, 
access to alternative providers must be available, and resi- 
dents must have the opportunity to move out when prices of 
optional services rise. 

With respect to retirement homes, whose residents have 
relatively high incomes, government's primary interest is to 
ensure that the market works as it should: operators must pro- 
vide full pricing information to all potential residents, includ- 
ing a posted "rate sheet" and history of recent price increases. 
(They must also describe, in writing, any emergency-response 



Executive Summary xvii 



system, including details of any commitment to a particular 
response; any staffing levels above legal requirements; and 
any internal complaint procedures.) 

The Commission recommends that domiciliary hostels — 
rest homes in which residents are funded through GWA — be 
phased out as rapidly as possible. Currently, private operators 
may be paid a per diem (up to $1,015 per month) to provide 
accommodation, meals, and care services for each of about 
4,500 vulnerable adults, most of whom have psychiatric 
and/or developmental disabilities. Accountability of operators 
is often limited or non-existent. In our view, operators of hos- 
tels should not be funded through a per diem to assess and 
meet care needs of residents; as quickly as possible, they 
should come to approximate traditional landlords. 

We recommend that hostel residents who so desire should 
be assisted in leaving the hostels and reassigned to an appro- 
priate category of social assistance. This will usually involve a 
shift from municipally administered GWA to provincially 
administered Family Benefits, potentially saving a municipality 
as much as $203 per resident per month. 

The difference between current funding to operators and 
social assistance should be made available for the develop- 
ment and delivery of community-based care services. Resi- 
dents should have a primary role in identifying, arranging, 
and, when possible, delivering these care services. Additional 
funding of about $1,000 per resident per year should be pro- 
vided to approximate the cost of comparable community ser- 
vices currently provided to similar populations. 

As interim measures, we recommend that all hostel con- 
tracts under GWA be limited to one-year renewable terms; 
and that the province set a maximum total-bed capacity for 
each domiciliary hostel. We also believe that operators should 
be prohibited from involvement in the distribution of the per- 
sonal-needs allowance (PNA) to hostel residents. 

The Commission also recommends: 



xviii Executive Summary 



1. that coverage of rest homes under the Workers' Compen- 
sation Act and Hospital Labour Disputes Arbitration Act 
(HLDAA) be consistent with the definition of rest homes as 
residential settings, not institutions; 

2. that the Planning Act be amended to make accessory 
apartments and rooming, boarding, and lodging houses an 
as-of-right use in all zones where residential uses are per- 
mitted; 

3. that a pilot project be considered, as resources permit, 
to implement full community-based services in one or 
more communities; and that Windsor be considered for 
inclusion in such a pilot project; 

4. that the Residential Services Branch develop a precise 
legal definition of a nursing home, and that rest homes that 
offer high levels of care and serve, in effect, as "bootleg" 
nursing homes without nursing-home licences, cease offer- 
ing nursing-home levels of care; 

5. that the Ministry of Health investigate the quality of 
medical care delivered to residents in rest homes, and the 
billing practices of doctors (including "house doctors") 
who regularly claim for multiple and sequential home visits 
in rest homes. 

In an Appendix to the Report, the Commission also suggests 
that the announced intention of the government of Ontario to 
eliminate the funding differential between nursing homes and 
homes for the aged be deferred pending clear evidence of 
effective accountability to residents in nursing homes. 

Much of this Report focuses on residents' day-to-day prob- 
lems and quality of life. We argue that the protections 
promised by comprehensive regulation would not be effec- 
tive. Instead, a variety of remedies and avenues for redress 
should be available to residents; we believe that, overall, such 
measures will be more powerful and more accountable: 

1. violations of the residents' bill of rights may be pursued 



Executive Summary xix 



through the Rest Homes Tribunal, which will have avail- 
able a wide array of remedies from mild reprimands, 
through orders to do or cease doing something, to perma- 
nent closure of premises and banning of individual opera- 
tors from the industry; 

2. the LTA and/or rent control may offer remedies for vio- 
lations of the terms of the lease (mandatory package), 
including permanent or temporary abatement of rent and 
termination of lease; and 

3. violations with respect to commercial contracts for 
optional services may be pursued through the courts. 

In summary, this Report has placed before the people and 
government of Ontario a number of responses to the many 
problems identified in rest homes. To do nothing is unaccept- 
able: abuses continue to be identified, and the quality of resi- 
dents' lives in too many cases is frankly appalling. To regulate 
comprehensively, creating, in effect, a new set of care-giving 
institutions would be costly, and the outcome very uncertain. 

An approach based on empowerment, which we endorse, 
has the potential to do more, and at less cost. However, the 
empowerment must be practical and operational, not merely 
theoretical — and this, ultimately, is the greatest challenge 
Ontarians face. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 




Prologue 

We regulate cars, guns, repair shops, and just about 
every other kind of business practice; but when it comes 
to the people that least can protect and help themselves 
we turn the other way. 
Written submission from Hamilton, Ontario 



any vulnerable adults in Ontario live in condi- 
tions that we associate with the poor of Victo- 
rian England, not with residence in late- 
twentieth-century Canada. Today, Ontarians 
with psychiatric histories are living six or 
more to a room, sleeping in bunk beds or on 
floors, with few protections from exploitation, abuse, and 
capricious behaviour by landlords, staff, and sometimes com- 
plete strangers. Frail seniors lie bedridden and ignored, oft- 
times in dirty, foul-smelling wards, sometimes in luxurious 
private suites. The Commission met one woman with devel- 
opmiental disabilities who was paying $675 monthly room and 
board. Her social-assistance cheque totalled $638; the balance 
came from handing over her sheltered-workshop earnings and 
by doing chores around the residence. 

These vulnerable adults are not being accommodated; they 
are being warehoused, conveniently out of sight and mind of 
the people of Ontario. 

Some thirty-five years ago, we as a society began to close 
our large psychiatric hospitals and return patients to the com- 
munity. In doing so, we did everything wrong that could pos- 
sibly be done wrong: we discharged people from institutions, 
gave them inadequate incomes, and essentially abandoned 
them. 



2 Prologue 



Nor did we create supportive housing, group homes, or 
independent-living options sufficient for people with develop- 
mental disabilities. As children, they are relatively protected; 
as soon as they reach the age of majority, far too many are 
given a welfare cheque and little social support. 

We talk much of the aging of Canada's population, yet we 
have done little to meet the needs of our growing numbers of 
seniors. Public policy still takes for granted nuclear families 
and the unpaid labour of women as primary care-givers. Even 
elderly persons with adequate resources who choose to enter 
retirement homes may be victimized by unscmpulous opera- 
tors and the abuses that respect neither income nor economic 
class. Many frail elderly persons without private means can 
expect only inadequate care in whatever accommodation they 
can find. 

Each of these three population groups — persons with psy- 
chiatric histories, adults with developmental disabilities, and 
frail elderly persons — experiences different problems and is 
subject to different pressures. However, far too often, all have 
been neglected or substantially abandoned by our society. 
They may be provided with an income inadequate to their 
basic needs; otherwise they are, for the most part, left on their 
own. 

This societal neglect is most clearly visible in the area of 
housing. Everyone must have somewhere to live, and accom- 
modation often represents a person's largest single expense. 
Moreover, as vulnerability grows, people become increasingly 
dependent on their housing, which should be — but often is 
not — a stable refuge in an ever more turbulent and threaten- 
ing environment. 

We did not set out to create a system of rental housing in 
which the most vulnerable members of society are the least 
protected; but that has certainly been the outcome, for often 
they live in accommodation that is uninspected and outside 
the protection of rent control, the Landlord and Tenant Act 
iLTA), and other regulatory legislation. Through our indiffer- 



Prologue 3 



ence and neglect, those with the greatest needs often receive 
the least from our programs and services. 

Within a psychiatric hospital, patients are formally protect- 
ed by extensive rules and regulations; when they pass 
through the gates into the community, our collective responsi- 
bility largely ends and individuals are at the mercy of a cruelly 
indifferent society. Our obligations to persons with develop- 
mental disabilities often seem to end at the age of majority; 
these adults, too, can be left to find whatever housing they 
can. 

The number of beds in licensed and regulated premises for 
elderly persons, such as homes for the aged or nursing homes 
and community-based supports for independent living, have 
not increased as the population ages; many elderly persons 
are left to languish, virtually ignored, in unregulated accom- 
modation. 

This Commission of Inquiry arose as a result of a death at 
Cedar Glen, an unregulated boarding home near Orillia, and 
the subsequent coroner's inquest, the longest in Canadian his- 
tory. It might have been initiated equally well in response to 
any number of deaths, abuses, and cases of neglect in similar 
residential settings across the province. Throughout the Com- 
mission's work, one question has been our touchstone: 
"Would this [approach/recommendation] have prevented 
Cedar Glen?" The answers determine the efficacy of our work. 

We do not know how many deaths each year in Ontario are 
attributable to improper treatment or neglect of residents in rest 
and boarding homes. We do not know how many instances of 
abuse — physical, emotional, and sexual — occur daily. We cannot 
determine what proportion of these vulnerable populations 
receive adequate or excellent accommodation, and how much is 
barely acceptable or utterly intolerable. Indeed, we have only a 
rough idea of how many unregulated premises operate in this 
province, as there is no obligation for them to make themselves 
known to any governmental body. We have even less knowl- 
edge of how many people live in such settings. 



4 Prologue 



We are dealing with a profound public-policy void. 

The purpose of this Inquiry has not been to determine 
guilt, or identify villains. Rather, the focus has been on the 
residents of rest homes, on the quality of their daily lives, and 
on how the government of Ontario can help create an envi- 
ronment in which the best quality of life is possible. Sadly, a 
Commission of Inquiry would have been warranted solely to 
investigate the quality of life experienced on a daily basis by 
many vulnerable residents in unregulated housing, quite apart 
from any concerns about death and abuse. 

This Commission has heard from operators and visited rest 
homes in which the services provided are exemplary and the 
needs of residents uppermost. We have seen retirement 
homes where the residents are content and well cared for, in 
environments that are clean and cheerful, with creative pro- 
gramming and staff who are well trained and conscientious. 
We have heard from people for whom it was a spiritual obli- 
gation to care for vulnerable adults, regardless of the personal 
or financial sacrifice. 

We wish at the outset of this Report to commend such 
homes and individuals, and to express our respect for and 
admiration of their ability to perform a ver)^ difficult job under 
circumstances that are trying at best. These individuals, often 
motivated by a personal ethical commitment, are doing soci- 
ety's work and dealing with significant social issues that too 
many of us simply refuse to face. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 



PART I 



Where You 
Live Can 




ake You 
Vulnerable 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 

1 

An Introduction 



In May 1985, Joseph Kendall was discharged from the 
Queen Street Mental Health Centre in Toronto to Cedar 
Glen Boarding Home, Orillia, a privately run home for 
ex-psychiatric patients and people with developmental 
disabilities. In November 1987, Mr. Kendall died in hospi- 
tal after being assaulted by another resident at Cedar 
Glen. A police investigation into allegations of abuse at Cedar 
Glen led to a coroner's inquest into Mr. Kendall's death; the 
inquest ran from August 8 until November 27, 1990. 

The jury's report contained more than eighty recommenda- 
tions; key among these was that "the Premier of Ontario 
should immediately appoint a Public Provincial Commission 
to inquire into unregulated residential facilities in the province 
and conduct a census of the vulnerable adults housed in these 
facilities." Two days after the report was filed, the establish- 
ment of this Commission was announced in the Ontario Legis- 
lature by the Hon. Elaine Ziemba, Minister of Citizenship with 
Responsibility for Human Rights, Disability Issues, Seniors' 
Issues, and Race Relations. 

The terms of reference for this Commission of Inquiry 
were, in part, "to examine, study, inquire into and to report 
upon the level of care and living conditions of physically, 
developmentally, socially or psychiatrically disabled adult per- 
sons, as well as frail or cognitively impaired elderly persons 



8 Where You Live Can Make Vulnerable 



1 Order in Council under the 
Public Inquiries Act issued by 
the lieutenant-governor on 
December 20, 1990. 

2 Doing the Right Thing Right: 
An Analysis of the Communi- 
ty Mental Health Sennces Leg- 
islation Consultation Under- 
taken by the Ontario Ministry 
of Health, by David Reville, 
MPP ( 1990). 

3 You 've Got a Friend, the 
Report of the Review of Advo- 
cacy for Vulnerable Adults 
(1987) used the term "vulner- 
able" to describe specific 
groups of adults: frail elderly; 
physically disabled; psychi- 
atrically disabled; and devel- 
opmentally handicapped. The 
report (p. 55) defined vulnera- 
ble adults as "people with 
some type of physical, emo- 
tional or cognitive impair- 
ment." 



who reside in unregulated residential accommodation in 
Ontario."! 

This Commission began its work on January 1, 1991, with a 
request for submissions; more than 230 written presentations 
were received, from handwritten notes to formal documents. 

A Discussion Paper, released in March 1991 and widely dis- 
tributed, established the framework and identified key ques- 
tions for public consultations in April and May 1991 in seven 
communities around the province. We also met privately with 
numerous stakeholders, interest groups, and concerned indi- 
viduals between January and May 1991- 

Of particular importance to the Commission were sessions 
organized by consumer/survivors in three communities: we 
are indebted to the powerful report Doing the Right Thing 
Right- by David Reville, which emphasized for us the necessity 
to conduct consultations involving vulnerable populations on 
terms set by and familiar to the respondents, rather than on 
grounds convenient to the Commission. 



Basic Definitions 



THE MEANING OF "VULNERABLE" 

The term "vulnerable" was used in the O'Sullivan Report^ to 
describe the population groups of interest to this Commission. 
More recently, the proposed Advocacy Act, 1991 (Bill 74, sec- 
tion 2) defines "vulnerable persons" in the following way: 



"vulnerable person" means a person who, because of a 
mental or physical disability, illness or infirmity, whether 
temporary or permanent, has difficulty in expressing or act- 



An Introduction 9 



ing on his or her wishes or in ascertaining or exercising his 
or her rights. 

Many presentations before the Commission questioned the 
applicability of the term "vulnerable" to specific groups or 
particular individuals. Some argued that when we label peo- 
ple "vulnerable," we create a self-fulfilling prophecy rather 
than a starting point for assistance. At least one agency for 
persons with physical disabilities expressed concern that clas- 
sifying its population as "vulnerable" would conflict with the 
philosophy of independent living that it promotes. 

Some operators and residents of luxury retirement homes 
have taken exception to their inclusion in this Inquiry; they 
have indicated that the term "vulnerable" does not accurately 
reflect the status or the needs of the "well elderly." Neither do 
they accept that the concept of "vulnerability" can or should 
apply to persons who choose to spend their own money on a 
particular type of accommodation. They argue that the state 
has no right to interfere in these private financial transactions 
by competent adults, although they acknowledge that private 
financial transactions in many other commercial areas are 
extensively regulated. 

Other people have noted, as did the O'SuUivan Report 
(p. 57), that institutions by their very nature create vulnerability 
and dependence. Some presenters argued that all rest homes 
should be considered institutions, as should any setting in 
which a person's right to autonomous decision-making is 
eroded or removed in favour of rules and conditions set by 
and serving the interests of the owners/operators/staff. 

We wish to distinguish between two types of vulnerability 
that, incidentally, correspond to two types of advocacy set out 
in Bill 74, the Advocacy Act, 1991: individual vulnerability, 
and collective vulnerability. 

This distinction is important, for each type of vulnerability 
calls for a different societal response. In the first case, we 
must focus on reinforcing individual capability so that individ- 



10 Where You Live Can Make Vulnerable 



4 To illustrate, the Landlord 
and Tenant Act (LTA) was 
intended to redress the inher- 
ent power imbalances 
between landlords and ten- 
ants, particularly in a tight 
housing market: tenants are 
seen as collectively vulnera- 
ble, regardless of any individ- 
ual vulnerability due to mem- 
bership in a particular group. 



uals disadvantaged by personal characteristics have access to 
means of enhancing their functioning, a process described as 
"empowerment. " 

Collective vulnerability, however, reflects systemic power 
imbalances within society; redress cannot be on the individual 
level. Rather, it is necessary to focus on the social structures 
that created the vulnerability or dependence.^ 

In broad terms, the Commission views many of the prob- 
lems experienced by residents of rest homes to be the result 
of both individual vulnerability and systemic power imbal- 
ances. 



THE MEANING OF "ACCOMMODATION" 



The types of housing examined by this Inquiry vary widely, 
but are generally associated with the provision of three ser- 
vices: accommodation; some or all meals; and limited care, 
such as supervision or help with bathing or assistance with 
medications. The housing includes rest homes (also known as 
"boarding" or "lodging" homes), for which rates are often 
determined by social-assistance levels, as well as luxury retire- 
ment homes, for which charges are determined by open-mar- 
ket forces. Virtually all are operated on a for-profit or commer- 
cial basis; tenancy is usually privately negotiated between the 
operators and potential residents (or, in the case of those with 
low incomes, the municipality acting on behalf of the resi- 
dents). The premises may be ordinary former single-family 
homes or huge complexes. (The largest, in Windsor, has 
approximately 450 beds.) At the lower end of the market, 
most residents are men, typically with psychiatric histories or 
developmental disabilities; in the retirement homes, the vast 
majority of residents are women. 

Residents may have their own rooms or apartments, or they 
may sleep several to a room, and at least some meals will be 
taken communally; but it is the delivery of care services by the 



An Introduction 11 



operators that distinguishes rest homes from traditional apart- 
ments or room-and-board settings. 5 

In the wide range of rest-home settings, variable amounts 
of care are delivered, according to individuals' needs and abil- 
ity to pay. In some luxury retirement homes catering to the 
"well elderly," care services may be limited to a registered 
nurse or registered nurse's aide on the premises and/or a 
twenty-four-hour, emergency call bell in each unit. Other 
premises function as de facto or "bootleg" nursing homes, in 
which high levels of care are given to residents. For those 
with low incomes, the extent and quality of care expected by 
residents and delivered by operators are often problematic. 

Nomenclature can be confusing: accommodation with care 
services is typically referred to as a "second-level lodging 
home" in the Hamilton area, a "rest home" in Windsor, and a 
"boarding home" in the Toronto area, though this latter term 
sometimes describes room-and-board situations only. Accom- 
modation for seniors with high incomes is widely referred to 
as a "retirement home." 

In this Report, "rest home" will be used generically to 
include boarding homes, lodging homes, rest homes, and 
retirement homes as set out above. When the reference is 
solely to the lower end of the market, "boarding home" may 
be used; upper-income accommodation with care for elderly 
persons will typically be referred to as a "retirement home." 
The intended use will, however, always be clear from the 
context. Unless indicated otherwise, all terms refer to settings 
in which care is delivered.^' 



5 "Retirement communities" 
and "seniors-only" apartment 
buildings, condominiums, 
etc., that offer housing only, 
whether based on equity or 
rental, are excluded from this 
Inquiry, as there is no care- 
services component. 

6 "Room and board" in this 
Report indicates the absence 
of care services. 



THE MEANING OF "REST HOME" 



"Rest homes" as we define them are nowhere defined in law; 
the meaning of the term is ambiguous. It is easiest to set out 
what they are not: they are not nursing homes — although the 
public often confuses the two — for nursing homes are subject 



12 Where You Live Can Make You Vulnerable 



7 "Residential premises" as used 
here is defined in the LTA, 
clauses 1 (c), (i) and (ii). The 
specification of three or more 
residents is arbitrary, but the 
Municipal Act (section 236) 
uses a three-person minimum 
in its definition of a group 
home. 

For the purposes of this 
Report we do not distinguish 
between owners and opera- 
tors, although these may be 
different persons. The own- 
ers of the premises in which 
a "rest home" is situ.ated may 
rent the premises to the 
operators. The operators pro- 
vide accommodation and ser- 
vices on the premises and 
are entitled to the income 
from the rest home. Some of 
the Commission's recommen- 
dations may be relevant to 
only one or the other when 
owners and operators are not 
the same persons. 

8 No disclaimer in the contract 
or elsewhere is relevant in 
determining whether the con- 
ditions are satisfied. Though 
some or all meals are nor- 
mally provided in a rest 
home, they are not seen as 
essential to the definition. 

9 The definition is intended to 
include premises where care 

- is promised or provided, 
regardless of whether there is 
an agreement that the care is 
being paid for. 

10 Assistance, care or treatment 
provided by any person sub- 
ject to the proposed Regulat- 
ed Health Professions Act, 
1991 Bill 43, should fall 
within the definition of 



to provincial licensing, standards, and per diem funding. Rest 
homes are not so subject. They are also not "room-and-board" 
settings, in which individuals purchase accommodation and 
meals only; nor are they rooming houses, which offer accom- 
modation only. 

We are therefore left to develop a definition: 

RECOMMENDATION 1: That a "rest home" be defined as 
any residential premises in which three or more persons 
unrelated to the owner/operator reside,^ and in which one 
or more of the following conditions is satisfied:^ 

1. the operator is paid for caring for residents, whether 
or not this care is actually received; 

2. the operator makes public or gives others, such as 
hospital discharge planners, to understand that care to 
residents is provided by the operator; and/or 

3. care is regularly provided by the operator to resi- 
dents.9 

For the purposes of this definition, "care" includes the follow- 
ing: 

1. any assistance with the activities of daily living (includ- 
ing, for example, bathing and washing, grooming, dress- 
ing, personal hygiene, toileting, rising and retiring, dining); 

2. the provision of any health care (for example, care pro- 
vided by nurses or therapists); i*^ and 

3. staff on the premises to assist with medications, super- 
vise the activities of residents, and/or respond to personal 
emergencies (for example, a call bell or intercom that will 
call staff, who will summon help from within or outside 
the residence). 

This list is not comprehensive, although it is intended to 
exclude residences in which household cleaning and meals 
are the only services provided. As well, some accommoda- 



An Introduction 13 



tion that would otherwise fall within the above definition 
must be specifically exempted, for example, short-term 
accommodation provided as emergency shelter, ^i 



THE MEANING OF "COM 
AND "NON-PROFIT" 



E R C I A L " 



Virtually all the accommodation described above is operated by 
private entrepreneurs on a commercial or for-profit basis. Thus, 
at the outset, we assumed that group homes and other accom- 
modation run by non-profit agencies would be excluded from 
our mandate. However, this proved unacceptable to many who 
argued that the only relevant criterion for inclusion in the Com- 
mission's mandate was whether premises were regulated, that 
commercial or non-profit status was irrelevant. There are many 
government-supported group homes i- across the province that 
are not subject to regulation in law or practice. Other group 
homes are completely "free-standing," operated without govern- 
ment regulation or financial support. 

A large number of submissions argued that vulnerable adults 
in non-profit unregulated accommodation are as much in need 
of protection as are residents of commercial rest homes: non- 
profit status does not guarantee protection of the rights and 
interests of vulnerable adults. The debate was most heated 
when dealing with the issue of bringing group homes under the 
LTA and its provision of security of tenure for residents. 

The Commission became convinced that non-profit 
unregulated accommodation should, indeed, be included in 
our mandate. Granted, the particular problems we were 
asked to consider involved primarily the commercial sector; 
however, our formal terms of reference did not exclude the 
non-profit sector, and we are satisfied that many of the con- 
cerns raised — particularly regarding the protection of resi- 
dents — were relevant to all rest homes, irrespective of their 



11 This issue is examined in more 
detail in the context of the 
Landlord and Tenant Act, in 
chapter 5. 

12 The term "group home" is not 
defined in legislation. Group 
homes funded by government 
operate under a variety of 
statutes. Some are funded 
under the Ministry of Commu- 
nity and Social Services Act or 
the Ministry of Health Act. Nei- 
ther statute identifies stan- 
dards, conditions, or terms 
that may be attached to the 
receipt of government money, 
nor is either regulatory in 
scope. 



14 Where You Live Can Make You Vulnerable 



13 An alternative way to define 
"regulated" accommodation 
would be to identify statutes 
that refer to specific types of 
accommodation — such as the 
Nursing Homes Act or the 
Public Hospitals Act — and to 
assume that coverage under 
these statutes, by definition, 
constitutes regulation. For 
reasons made clear in the 
next part of this Report, the 
Commission does not accept 
this approach. 



commercial or non-profit status. 

Our definition of a rest tiome, then, is intended to include 
for-profit and non-profit accommodation. As well, unless oth- 
erwise exempted by criteria the Commission will present later, 
group homes are rest homes. (See discussion in chapter 5.) 



THE MEANING OF "UNREGULATED" 

"Regulated" accommodation is typically considered to be that 
in which the provincial government licenses operators, sets 
standards, and inspects for compliance with the standards; 
"unregulated" accommodation usually comprises everything 
else. ^3 

No residential accommodation in Ontario is completely 
unregulated, for the Fire Marshals Act and the Public Health 
Act are universally applicable. Legislation such as the Homes 
for Special Care Act sets out (in the regulations) standards for 
the physical plant in this accommodation, on matters such as 
fire safety. However, neither the Act nor its regulations pre- 
scribe standards of care for residents. Thus, certain aspects of 
Homes for Special Care are regulated, while others are unreg- 
ulated. Such homes could fall, in part, within the scope of this 
Inquiry. 

A clear distinction between "regulated" and "unregulated" 
accommodation has proven difficult to make, as a particular 
type of accommodation can be regulated with respect to only 
specific considerations. 

Many submissions were made to the Commission request- 
ing inclusion of various types of accommodation for vulnera- 
ble persons within our mandate on the grounds that the forms 
of regulation were in place, but enforcement was sporadic 
and inadequate. For all practical purposes, the presenters 
argued, the housing was "unregulated." A number of presen- 
tations suggested that even nursing homes — perhaps the most 
comprehensively regulated accommodation in Ontario — 



An Introduction 15 



should be included because inspections and protection of vul- 
nerable adults were considered inadequate: ^^ for example, if 
residents of rest homes are to be provided with security of 
tenure, under LTA or in other ways, residents of nursing 
homes should be equally protected. i5 

Using effective regulation as the criterion to exclude 
accommodation from this inquiry is fraught, as many addition- 
al types of settings might then fall within our net. In 1987, for 
example, the provincial auditor examined Homes for Special 
Care and found consistent provincial standards across Ontario 
were wanting. Although the Ministry of Health (MoH) is now 
developing such standards, one might well argue — as some 
have done — that regulation in these settings is deficient and 
therefore they should be part of this Inquiry. 

Similarly, in 1990, the provincial auditor examined the 
Developmental Services Act, looking at three of the eleven 
large provincial institutions (Schedule 1 facilities) and three 
smaller group homes (Schedule 2 facilities) for persons with 
developmental disabilities. i'' In each case, the auditor found 
that Ministry of Community and Social Services (MCSS) moni- 
toring did not ensure that funds were well spent, or that per- 
sons with developmental disabilities were receiving adequate 
care and services. Once again, one might well argue that 
existing regulation is ineffectual. 

Thus, like a snowball rolling down a hill, the types of 
accommodation included within our mandate could grow 
until we would examine virtually all housing in which vulner- 
able people reside. Such an approach would, however, be 
impractical. 

The Commission has previously presented its definition of 
a rest home. Unless exempted, any accommodation that fits 
within the definition is subject to the recommendations of this 
Report. In the next part of this Report, the Commission sets 
out criteria for making exemptions from our definition of a 
rest" home. Our discussion of what should be exempted indi- 
cates the line the Commission draws between "regulated" and 



14 The Ministry of Health's moni- 
toring of quality of care in 
nursing homes "required sig- 
nificant improvement," 
according to the 1990 Annual 
Report of the provincial audi- 
tor, p. 139. 

15 Notwithstanding nursing 
home operators' obligation to 
locate alternative premises 
before discharging residents. 

16 Office of the Provincial Audi- 
tor, 1990 Annual Report. 
Queen's Printer for Ontario. 



16 Where You Live Can Make Vulnerable 



17 A person with identical needs 
would, in many cities in the 
southern part of the province, 
be housed in a rest home, 
where the operators might be 
directly compensated by the 
municipality for providing 
identical care. The for-profit 
rest home as understood in 
Southern Ontario is virtually 
non-existent in Northern 
Ontario. 



"unregulated" accommodation where care is provided. 

The Commission acknowledges that many types of "regu- 
lated" accommodation are, in practice, regulated only mini- 
mally or not at all. Many of the Commission's recommenda- 
tions might well apply to such accommodation. In considering 
implementation of the Commission's recommendations, the 
government of Ontario should examine the desirability of 
their wider application to other types of housing for vulnera- 
ble adults in which regulation is inadequately effective. 



Informal Care Services 

We have included within our definition of a rest home the 
condition that care is regularly provided by the operators. It is 
not the Commission's intention to consider premises in which 
care services are offered to residents only on an informal or 
occasional basis. 

In Northern Ontario cities, accommodation-only premises 
("rooming houses") are the norm for persons discharged from 
psychiatric hospitals; care services may be offered, on an 
informal and unpaid basis, by the operators or other 
residents.!^ When operators provide such assistance on a reg- 
ular basis — whether compensated or not — the home is a de 
facto rest home, regardless of any stated mandate. As such, it 
must be fully subject to the Commission's recommendations. 

Should higher standards be imposed on care-giving 
premises only, operators might withdraw from the provision 
of care in order to be exempt from the standards and associat- 
ed costs, particularly if the care is offered on an unpaid basis. 
This would result in a loss of accommodation offering low 
levels of care, or loss of care in the settings that remain. The 
Commission deems this outcome regrettable; however, accom- 
modation offering care must be treated as a rest home, and 
the same protections should be offered to vulnerable residents 
in all cases where operators regularly provide care. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

2 

Who Are Vulnerable 
Adults? 



One of the Commission's first tasks, as set out in its 
terms of reference, was to "conduct a census 
[survey] of vulnerable adults [in unregulated 
accommodation] in Ontario." In developing over- 
all estimates of this population and data on par- 
ticular groups and their housing, we have used 
the 1986 census, and the Health and Activity Limitation Survey 
(HALS), conducted in conjunction with the 1986 census. The 
data are projected forward to a 1991 base. 

The advantages of using the census are those of economy, 
speed, and efficiency. It was not feasible to develop a primary 
survey in the time available to this Inquiry; moreover, we 
doubt that the quality of such data would have equalled that 
of the census. 

The obvious difficulty of using secondary data, however, is 
that one cannot design the questions; therefore, we developed 
operational definitions of "vulnerable adult" and "unregulated 
accommodation" using the available census categories. Neither 
definition corresponds precisely to those used elsewhere in this 
Report, but they are reasonable approximations; taken together, 
the definitions should yield an estimate of "vulnerable adults" in 
"unregulated accommodation" in Ontario. (The Commission 
contracted with the G. Allan Roeher Institute [Canadian Associa- 
tion for Community Living] at York University to estimate the 



17 



18 Where You Live Can Make You Vulnerable 



1 Vulnerable Adults in the 
Province of Ontario: A Report 
Submitted to the Commission 
of Inquiry into Unregulated 
Residential Accommodation 
by the G. Allan Roeher Insti- 
tute, prepared by Cameron 
Crawford, assistant director, 
June 1991. Copies of the full 
report are available from the 
Roeher Institute. All numbers 
reported in this section are 
drawn from that report. 

A survey was also con- 
ducted for this Commission in 
the spring of 1991 by Louise 
Doyon of the Office for 
Seniors' Issues, with the assis- 
tance of the Ontario Munici- 
pal Social Service Association 
(OMSSA). Information was 
sought on the quantity of 
unregulated accommodation 
existing in the municipalities. 
Though the overall response 
rate was high (over 80 per- 
cent), the Commission was 
able to determine, through 
comparison with other exist- 
ing data, that the reported 
results were generally not 
valid. They are, therefore, not 
presented here. 

2 The "long" form of the census 
questionnaire administered to 
individuals posed the follow- 
ing question: "Are you limited 
in the amount of activity that 
you can do because of a 
long-term physical condition, 
mental condition, or health 
problem?" Answers to a num- 
ber of specific question items 
on the HALS survey were 
aggregated to form three cat- 
egories: "mild," "moderate," 
and "severe" disability. 

3 The definition has been 
broadened slightly to include 
all persons residing in unreg- 
ulated special-care homes 
(described later in this sec- 



number of vulnerable adults in Ontario who live in unregulat- 
ed settings.)! 



CENSUS 
ADULTS 



ESTI MATES OF VULNERABLE 



The most commonly used estimate of vulnerable adults is 
derived from the HALS Survey.- The survey found that 
1,164,000 adults in Ontario (16 percent of the adult popula- 
tion) had some type of physical or mental disability. Of these, 
359,000 reported a "moderate" disability; 279,000 were report- 
ed as "severely" disabled. These two groups comprise more 
than 600,000 persons. 

For the purposes of this Inquiry, this estimate of 600,000 
must be reduced to those who live in unregulated accommo- 
dation. In addition, the automatic exclusion of those with mild 
disabilities and the automatic inclusion of all persons with 
moderate or severe disabilities appears to be somewhat arbi- 
trary. We are unwilling on a priori grounds to exclude all per- 
sons having mild disabilities. As well, some persons are cate- 
gorized as having severe disabilities because of a high score 
on a single survey question; yet they are able to get on with 
their lives reasonably well, perhaps because they have suffi- 
cient income. 

The Roeher Institute study has provided us with an alterna- 
tive definition that we feel is more precise and more useful 
for our purposes. Based on the Roeher definition, three condi- 
tions (derived from the census responses) must be satisfied 
for people to be considered vulnerable: 

1. they must be poor^ (with incomes below $15,000^ in 
1986); 

2. they must have disabilities and not be living with family 
members; and 

3. they are characterized by one or more of tlie following traits: 



Who Are Vulnerable Adults? 19 



(a) because of their disability, they require help from oth- 
ers in one or more area of daily living, but are receiving 
less help than they need; 

(b) in the event that they are refused housing or employ- 
ment because of their disability, they do not know where 
to go to find information about their rights; and 

(c) they have learning or psychiatric disabilities, develop- 
mental disabilities and/or physical conditions that have 
resulted in emotional or nervous problems. 

Based on this definition, our estimate is that in 1991^ there 
were in Ontario some 196,000 non-institutionalized vulnerable 
adults living alone or with non-relatives. Of these, about 
150,000 live alone, two-thirds of them in rented premises. 
About 120,000 vulnerable adults are sixty-five years of age or 
older. 



CENSUS ESTIMATES OF UNREGULATED 
ACCOMMODATION 

The number of vulnerable persons living in unregulated 
accommodation was calculated by totalling the number of 
those living in the following types of housing, as categorized 
by the census: 

1. "Unattached with non-relatives" 

This includes persons living with others to whom they are 
not related, often as lodgers, room-mates, or employees. 
They may also be unrelated adults in shared living arrange- 
ments, though usually not a group home. The dwellings 
are privately owned, but none of the residents need be the 
owner. 

About 24,500 vulnerable adults reside with non-relatives 
in shared living arrangements.^' 



tion), who are presumed to 
be vulnerable adults. This 
would include some persons 
in upper-income retirement 
homes. 

The Commission is aware 
that vulnerability is not solely 
or necessarily an income- 
based concept. Seniors, in 
particular, become increas- 
ingly vulnerable with age, 
irrespective of income level. 
Therefore, elsewhere in this 
Report a person need not 
have a low income to be 
classed as vulnerable. 

4 The cutoff figure is arbitrary 
and above the Statistics Cana- 
da low-income cutoffs; but it 
is based in part on the sub- 
stantial out-of-pocket expens- 
es typically incurred by per- 
sons with disabilities. 

5 The 1986 census figures are 
projected forward to produce 
1991 estimates. In these for- 
ward projections, allowance 
was made for shifts in family 
types (e.g., living with non- 
relatives, etc.). It was 
assumed that the proportion 
of persons with disabilities to 
persons without disabilities 
has remained constant within 
the fifteen-to-sixty-four and 
sixty-five-plus age categories 
respectively: given the gener- 
al aging of the population, 
this assumption probably 
results in an underestimate of 
the number of vulnerable 
older people in Ontario in 
1991. 

6 Slightly more than 13,000 of 
these individuals are the only 
person with disabilities in the 
setting; the remaining 11,000 
reside with one or more 
other persons with disabili- 
ties. Presumably, many vul- 
nerable adults living with 



20 Where You Live Can Make You Vulnerable 



non-relatives are in small, 
informal boarding arrange- 
ments. Most vulnerable adults 
living with non-relatives live 
with one to four other per- 
sons. These estimates include 
both premises where care is 
and is not given. 

7 Those over sixty-five years 
tend to live in premises 
where there are ten or more 
other persons, while about 
half of those under sixty-five 
live in premises with five to 
ten other persons. 

8 The census category of 
"special-care homes" is gener- 
ic and less well defined than 
Homes for Special Care, a 
particular type of Ontario 
Ministry of Health-licensed 
and-regulated accommoda- 
tion. Persons resident in Min- 
istry of Health Homes for 
Special Care would not be 
included in the category of 
"unregulated special-care 
homes," because their accom- 
modation is considered for 
census purposes to be regu- 
lated. 

9 Derived from Health Reports. 
Supplement, Residential Care 
Facilities, 1986-87, Volume 1, 
Number 1, 1989, Table 1. 
Statistics Canada simply 
reports data provided by the 
provinces and territories. It 
provides general criteria 
(licensed, approved, regulat- 
ed, or funded, and providing 
care); the provinces and terri- 
tories then determine those 
premises to be included in 
the data. The category "pro- 
viding care" may include 
some units that should be 
excluded for our purposes 
(e.g., independent apartments 
visited occasionally by a 
social worker). 



2. "Service collective dwellings" 

This category comprises four census categories of non- 
institutional accommodation: hotels, motels, and tourist 
homes; lodging and rooming houses; work camps; "other" 
collective dwellings (primarily YM/YWCAs, missions, and 
camp grounds). 

More than 7,600 vulnerable adults live in these settings, 
the vast majority in lodging/rooming houses, and 
YM/YWCAs and missions.^ 

3. "Non-regulated special-care homes" 

The numbers in this category have been calculated as fol- 
lows: from the total number of persons residing in the cen- 
sus category of "special-care homes^ and institutions for 
the elderly and chronically ill" we subtracted the number 
of residents in approved, funded, regulated, or licensed 
special-care^ premises. The difference — more than 
15,300 — represents the number of residents in unregulated 
special-care homes, lo 

hj total, some 47,500 vulnerable adults live neither alone nor 
with family members, in unregulated accommodation in 
Ontario. Of these, some 32,300 are between the ages of fifteen 
and sixty four; 15,200 are sixty five years of age or older. 

This estimate of 47,500 persons represents our single best 
estimate of the number of vulnerable adults living in unregu- 
lated residential accommodation in Ontario in 1991. 

Table 1 presents detailed information on vulnerable adults 
in Ontario for 1991. The table also includes two other empiri- 
cal indicators of vulnerability: 

1. "poor with a disability": all persons with disabilities 
whose incomes (in 1986) were below $15,000; 

2. "at risk": all persons "poor with a disability" as well as 



Who Are Vulnerable Adults? 21 



Table 1 

Adults Living with Non-Relatives in Various Arrangements — Ontario 1991 





Total 


Living 
Alone 


Living Not Alone 
(Unregulated Accommodation) 










Unattached 

with 

Non-Relatives 


Service 
Collective 
Dwellings 


Non-Regulated 
Special- 
Care Homes 


Total 

Not 

Alone 


Vulnerable 














Adults 














15-64 


77,800 


45,496 


20,283 


5,600 


6,421 


32,304 


65 + 


118,898 


103,688 


4,185 


2,062 


8,963 


15,210 


Total 


196.698 


149.184 


24,468 


7,662 


15,384 


47,514 


Poor and 














Disabled 














15-64 


77,198 


49,626 


21,827 


5,745 


— 


27,572 


65 + 


139,039 


129,466 


7,431 


2,142 




9,573 


Total 


216.237 


179,092 


29,258 


7,887 


37,145 


"At Risk" 














15-64 


180,653 


137,916 


28,248 


8,068 


6,421 


42,737 


65 + 


214,707 


194,555 


9,005 


2,184 


8,963 


20,152 


Total 


395.360 


332.471 


37,252 


10,251 


15,385 


62,889 



22 Where You Live Can Make You Vulnerable 



10 Slightly more than half of 
these are sixty-five years of 
age or older. Persons living in 
unregulated special-care 
homes (which may include 
some upper-income retire- 
ment homes) are automatical- 
ly presumed, in the Roeher 
Institute report, to be vulnera- 
ble adults. 

1 1 The Roeher Institute study 
also generated the following 
demographic data on vulner- 
able adults in Ontario: of the 
103,000 vulnerable persons 
aged sixty-five and older who 
live alone, 86 percent (more 
than 89,000) are women. In 
urban centres outside Toron- 
to, the rate of vulnerable 
adults living alone is more 
than twice that of the general 
population. In rural areas, it 
is nearly 2.6 times that of the 
general population. The rate 
of vulnerable adults in urban 
centres living in service- 
collective dwellings such as 
hotels, rooming and lodging 
houses, shelters, YM/YWCAs, 
etc. is more than three times 
that of the general popula- 
tion. 

12 There is a range of govern- 
ment-funded institutions and 
alternative group- and inde- 
pendent-living arrangements 
in the community for each of 
the population groups of 
interest to this Inquiry. At 
least two ministries — MCSS 
and MoH — which have tradi- 
tionally held bureaucratic 
responsibility for these 
groups — have exercised vari- 
able conceptions of and com- 
mitments to non-institutional 
forms of living and care for 
vulnerable adults. 



those who were poor, did not have disabilities, and lived 
with one or more persons with disabilities. 
Depending on the definition used, the numbers of vulnera- 
ble adults living in unregulated accommodation with oth- 
ers is between 37,000 and 63,000. n 



Rest-Home Residents 

Having determined the number of those living in rest homes, 
we turned our attention to the residents themselves and the 
needs that the rest homes are intended to meet. 

Rest homes evolved in Ontario as a private-sector response 
to social needs for accommodation and care that were other- 
wise not being met. They are the product of limited and 
decreasing institutional accommodation and our society's 
ambivalent commitment to community-based alternatives. 

The rest home is a "spillover," a symptom of the failure of 
government to provide adequately in the community for those 
not in institutions or being cared for at home by their families. 12 

Government policy towards those with psychiatric histories 
and developmental disabilities has been dominated by the 
closing of institutions, yet our practice towards elderly per- 
sons has focused excessively on institutionalization. In each 
case, the result has been fundamentally unacceptable. In clos- 
ing provincial institutions, we usually failed to follow through: 
closing beds became an end in itself. In institutionalizing our 
seniors, we have revealed the principle itself to be wrong- 
headed. 

What this Commission — and the community — is being 
called upon to do is to begin again. But this time we must do 
it right. 

Let us briefly look at each vulnerable group in turn. 



Who Are Vulnerable Adults? 23 



SENIORS 

Ontario has one of the highest rates of institutionalization of 
seniors in the developed world. We place too many elderly 
people in institutional settings that can be impersonal, dehu- 
manizing, costly and, at times, dangerous, even though the evi- 
dence suggests that many would live better and longer if they 
were given adequate supports to remain in the community. 

In 1975, Ontarians sixty-five years and older comprised just 
less than 9 percent of the province's population; in 1990, their 
numbers had risen to 11.7 percent, and by the year 2011, 
seniors will comprise more than 15 percent of the population. 
Between 1975 and 2011, the seniors population will grow 
more than three times as fast as the total population (147 per- 
cent compared to 46 percent for the total population). 
Between 1990 and 2011, the growth rates will be 59 percent 
for seniors, 22 percent for the total population. 

As the average lifespan continues to increase, the number 
of older seniors grows. Persons eighty-five years of age and 
older comprised just more than 8 percent of the elderly popu- 
lation between 1975 and 1990. However, by the year 2000, 
those eighty-five and older will comprise nearly 11 percent of 
the seniors population; by 2011, they will account for nearly 
14 percent. 13 Put another way, in less than twenty years, per- 
sons eighty-five years and over will increase from about one 
in twelve of all seniors to almost one in seven. Those eighty- 
five and over, slightly more than 1 percent of the total popula- 
tion in 1990, will become 2.1 percent by the year 201 l.i'^ 

Our fiscal capacity to care for this aging population in 
institutions will be severely strained: between 1980 and 1989, 
the number of nursing-home residents in Ontario increased by 
18 percent; the number of extended-care residents in homes 
for the aged grew by 22 percent;i5 and the total number of 
residents in these settings grew by 19 percent, from 35,244 to 
42;049. 

Table 2 indicates there are currently about 70,000 institu- 



13 This represents growth of 110 
percent in the number of per- 
sons sixty-five to seventy-four 
between 1975 and 2011, 176 
percent for those seventy-five 
to eighty-four and 316 per- 
cent for persons eighty-five 
and older. 

14 Two-thirds (68 percent) of 
the older elderly in 1975 
were women. Three-quarters 
(75 percent) of the older 
elderly by 2011 will be 
women. 

15 In addition to extended-care 
beds in homes for the aged, 
there are also residential-care 
beds, which are not included 
here. 



24 Where You Live Can Make You Vulnerable 



Table 2 

Health and Social-Service Institutions for Long-Term Care 

in Ontario 



Number Beds Funding 



Homes for the Agedi 

Municipal 
Charitable 


94 
88 


Total 


182 


Satellite Beds" 


38 


Nursing Honnese 


3363 


Homes for Special Care? 

Residential 
Nursing 


199 
174 


Total 


373 


Chronic-Care Hospitaiss 


221 



18,720 $325.6m3 

9,496 $77.1m3 



27,9662 $402.7m 

858 
30,4893 $395.1 ms 



1,678 

2,004 $ 77.3m3 



3,682 
11,4369 $743.5m5 



Notes 

1 . Homes for the Aged are operated either by municipalities or charitable organizations on a non-profit basis; the Ministry of 
Community and Social Services is the ministry responsible for ensuring standards. 

2. As of April 1991. Includes both residential and extended-care beds. 

3. 1990/91. 

4. These are beds in community residences or facilities contracted for by municipal Homes for the Aged. They are subject to 
regulation under the Homes for the Aged and Rest Homes Act. Size range is from four to 1 20 beds. These beds may.be in 
nursing homes or in unregulated rest homes. 

5. 1988/89. 

6. Most nursing homes are operated on a for-profit basis and are licensed and regulated by the Ministry of Health. Some 
nursing homes also provide "satellite-home" beds under contract with municipal Homes for the Aged. There are no offi- 
cial figures, but it is estimated that seventy-one nursing homes have a total of approximately 3,000 unregulated rest- 
home beds. See chapter 3. 

7. Provides nursing and supervised accommodation for both discharged patients from provincial psychiatric hospitals and 
residents with developmental disabilities from regional centres for persons with developmental disabilities. 

Provided in residential homes and in nursing homes. There are 199 residential homes with 1,678 beds and 174 nurs- 
ing homes have 1,951 extended-care beds and fifty-three intermediate beds. These 2,002 beds are also reflected in the 
nursing-home totals above. 

8. Chronic-care hospitals are part of the hospital system regulated by the Ministry of Health. Twenty-two of these hospitals 
provide only chronic care; the others are general hospitals. 

9. As of September 1990. 



Who Are Vulnerable Adults? 25 



tional beds for seniors in Ontario (including residential, 
extended, and chronic care, but excluding private rest 
homes). This yields an institutionalization rate of 5.9 percent 
(fifty-nine beds per thousand population) among persons 
aged sixty-five years and older. 



16 Harvey G. Simmons, Unbal- 
anced: Mental Health Policy 
in Ontario, 1930-1989. 
(Toronto: Wall and Thomp- 
son, 1990), p. 160. 



PERSONS WITH PSYCHIATRIC HISTORIES 

Our practices towards persons with psychiatric histories have 
come in for well-deserved criticism: 

if by deinstitutionalization we mean a clearcut policy 
directed toward reducing the population of provincial psy- 
chiatric hospitals and establishing community services to 
receive discharged patients, then no such policy ever exist- 
ed in Ontario. However if by deinstitutionalization we 
mean a deliberate policy of reducing the long-stay popula- 
tion of the large mental hospitals regardless of what hap- 
pened to the patients afterward, then deinstitutionalization 
began in 1960.'^' 



Deinstitutionalization in favour of community-based care for 
persons with psychiatric histories has always been marked by 
a fundamental ambivalence of purpose: the lure of saving 
money by shutting large and inhumane institutions has been 
omnipresent in government decision-making; the commitment 
to develop true community care has been far weaker. (See 
Table 3.) 

Between 1961 and 1970, the number of patients in provin- 
cial hospitals decreased by 52 percent, from 18,292 to 8,838. 
This process was largely a matter of "skimming off" the easy 
cases. Many of the people discharged should not have been 
in institutions in the first place and were able to cope on the 
outside relatively well. These early discharges were strictly for 
financial reasons; the idea that people would live better in the 



26 Where You Live Can Make You Vulnerable 



17 Neuroleptic drugs are major 
tranquillizers, also commonly 
referred to as anti-psychotics. 

18 Building Community Support 
for People: A Plan for Mental 
Health in Ontario (The 
Provincial Mental Health 
Committee, Robert Graham, 
chairman, July 28, 1988). 

19 This Commission is indebted 
to the work of the Graham 
Committee. It is from them 
that we have drawn the 
phrase "consumer/survivor" 
to describe those who have 
used psychiatric services, and 
it is from Graham's extensive 
consultations around Ontario 
that we learned much about 
conducting hearings with dis- 
empowered groups. The con- 
sumer-centred approach of 
Graham's work is the central 
principle on which this 
Report is founded. 

20 A patient is "discharged" from 
a psychiatric hospital and 
"terminated" from a commu- 
nity hospital. 

21 Schedule 1 psychiatric facili- 
ties are subject to the Mental 
Health Act and must offer a 
program that includes inpa- 
tient, outpatient, and a variety 
of other services. The obser- 
vation, care, and treatment of 
patients must be under the 
direction of a psychiatrist. 
Schedule 2 psychiatric facili- 
ties are required to offer only 
an inpatient program. Patients 
cannot be detained involun- 
tarily and are not necessarily 
under the direction of a psy- 
chiatrist. 



"normalizing" environment of the larger community came later, 
in the 1970s, when the use of neuroleptic drugs became 
widespread.'^ Thus, by the time clinical and therapeutic argu- 
ments in favour of deinstitutionalization became the accepted 
thinking, the population of provincial hospitals had already 
been reduced by more than half. 

Since 1970, the number of institutionalized patients has been 
reduced by more than half again, from 8,838 in 1970 to 3,957 in 
1988, a decrease of 55 percent. These more recent closings of 
beds have affected a population less able to manage without 
extensive community supports. Although the provincial budget 
for community mental-health programs has continually 
increased, the resources (Table 4) needed to develop adequate 
and appropriate community-based programs and supports have 
never been committed by government. 

There have been many studies through the years, all of 
which confirm the lack of coherent and systematic planning for 
discharged psychiatric patients. Most recently, the Graham 
Reporti*^ recommended the development of integrated mental- 
health services in the community, and advocated the active par- 
ticipation of consumers in the planning and delivery of flexible 
and adaptable service options. A subcommittee on legislation is 
developing an operational plan for the report's recommenda- 
tions; their final report has recently been completed. i^ 

This Commission endorses the principles of the Graham 
Report and believes that the work of the Graham Committee 
legislation subcommittee should be given prompt consideration 
by the Ontario government. 

Although the movement of patients out of provincial hospi- 
tals was straightforward, where the patients went to was less 
evident. Therefore, the Commission set out to obtain informa- 
tion about the residential places to which inpatient and outpa- 
tients are discharged or terminated. ^o in February 1991, a mem- 
orandum was sent to the ten provincial psychiatric hospitals 
and all Schedule 1 facilities^i in the province (eighty-one hospi- 
tals/facilities in all), asking them to collect such data from 



Who Are Vulnerable Adults? 27 



Table 3 

Psychiatric Inpatient Population (at Year End*) in Ontario 



# of Patients in 

Provincial Psycfiiatric # of Patients in 

Hospitals Psychiatric Units 

Year (on the books) in Public Hospitals 



/ of Patients in 

Community and 

Miscellaneous 

Psychiatric 

Hospitals ** 



1961 


18,292 


— 


— 


1966 


13,753 


645 


229 


1970 


8,838 


1,118 


387 


1975 


5,416 


1,414 


433 


1980 


4,930 


1,851 


730 


1985 


4,372 


1,833 


830 


1988 


3,957 


1,830 


823 


% change 
1961-1988 


-78% 


+184% 


+259% 



On-the-books figures include patients in approved homes or on leave of absence. 

*The 1961-75 end of year is December 31 ; 1980-88 end of year is March 31 . 

**lt appears that the Clarke Institute of Psychiatry was considered as a Miscella- 
neous Psychiatric Hospital for 1975, 1985, 1988, and is captured in those figures. 



28 Where You Live Can Make You Vulnerable 

Table 4 

Expenditures on Mental-Health Services in Ontario 



Community 
Mental 
Health 



OHIP Regional General 

(Mental Psychiatric Hospital 

Health) Hospital (Inpatient) 



Health 



79/80 


30,307,842 


70,320,486 


183,609,505 


113,273,259 


4,271,933,711 


80/81 


32,419,649 


86,460,421 


200,425,517 


130,223,040 


4,895,043,777 



81/82 



17,753,728 108,535,068 232,094,363 147,777,662 5,812,552,088 



82/83 



23,456,974 138,392,855 272,638,406 155,022,991 6,770,135,955 



83/84 



30,068,268 158,146,718 296,215,839 170,960,701 7,583,752,812 



84/85 



34,735,234 175,205,668 306,501,090 185,557,009 8,342,898,900 



85/86 



41,379,177 196,188,128 331,388,993 200,561,580 9,254,496,977 



86/87 



50,766,370 230,575,677 357,959,741 229,221,255 10,158,310,686 



87/88 



61,449,149 279,214,637 383,483,503 248,615,451 11,532,680,421 



88/89 



74,636,940 302,257,744 419,431,774 203,560,892 12,566,253,595 



The Ministry of Health notes that the data reported in this table were not collected on a consistent basis over the period from 
1979 to 1989. Thus, it is not possible to calculate a meaningful rate of growth for the individual columns. 

These figures are taken from: Regional allocation of esf/mafeo' expenditures on mental-health services by Ministry of 
Health — Community Information, User Support Branch. 

Data for 1989-90 and 1990-91 not available. 



Who Are Vulnerable Adults? 29 



March 15 to April 15, 1991.^^ 

With a response rate (total or partial) of 91 percent, we 
were able to determine the following (see Table 5): 

As of February 1991, there were 6,118 psychiatric beds in 
Ontario. The total number of discharges/terminations in the 
sample month was 4,698; i.e., more than three-quarters of all 
beds "turned over" during the month. -3 The vast majority of 
all discharges (2,922) and terminations (817) were to indepen- 
dent or private living arrangements.^^ 

There were 124 inpatients discharged to boarding homes 
(1,488 on an annual basis);-'' there were a further thirty-one 
outpatients terminated (372 annualized) to boarding homes. 
As well, fifty inpatients and twelve outpatients went from 
institutions to "rooming houses" and "hostels." 

From this data we can deduce that more than 2,000 outpa- 
tients and 500 inpatients are discharged annually to unregulat- 
ed housing-^' in Ontario.-" 



PERSONS WITH 
DISABILITIES 



DEVELOPMENTAL 



Until the 1970s, professionals, government, and families gen- 
erally favoured institutionalizing persons with developmental 
disabilities. It was believed that these persons, who often also 
had physical disabilities, had little potential for personal 
growth. During the past twenty years, however, services have 
moved from a custodial and medical model to a developmen- 
tal approach that recognizes and encourages the potential of 
persons with developmental disabilities. One aspect of this is 
the affirmation of their right to live in the community. 

From 1975 to 1985, provincial funds invested in community- 
based services increased from $8 million to $181 million. A 
"Multi-Year Plan" was announced in June 1987. Included as its 
long-term goals were the establishment of a comprehensive 
community service system for all people with developmental 



22 The time period was chosen 
for convenience only. Five 
facilities collected data for 
either March or April rather 
than mid-March to mid-April. 

23 The crude mean turnover rate 
is 0.77, although the range 
and variance in length of stay 
are extremely high. 

24 The categories of housing 
presented in Table 5 are 
those of the Provincial Psy- 
chiatric Hospitals Disposition 
Data Form. 

25 The annual figures are simply 
the totals for the sample 
month multiplied by twelve. 
The assumption is that the 
sample month is representa- 
tive of annual discharge 
flows. 

26 For purposes of this Report, 
we do not distinguish among 
any of the specific categories 
enumerated in the definition 
of "boarding home" that 
appears in Table 5. 

27 This does not, however, 
imply that 2,500 individuals 
are involved, as the same 
person may be admitted and 
discharged several times dur- 
ing the course of a year. 



30 Where You Live Can Make You Vulnerable 



Table 5 

Location of Discharge from Psycliiatric Hospital Beds in 

Ontario, March 15-April 15, 1991 





Inpatient 


Outpatient 




Discharges 


Terminations 


Sample Size 


61 


40 


Total Number of Discharges/Terminations 3,71 


988 


Location of Discharges 






Private/Independent Living 


2,922 


817 


Other Institutions 


196 


18 


Supportive/Regulated Housing 


122 


16 


Unknown 


124 


48 


Extended Care 


95 


28 


Boarding Homes 


124 


31 


Other 


45 


13 


No Fixed Abode 


32 


5 


Hostels 


26 


4 


Rooming Houses 


24 


8 




3,710 


988 



Categories of Housing have been defined as follows: 

a) Private/Independent Living— includes private homes/ apartments/family, subsi- 
dized housing, hotels/motels 

b) Boarding Homes— includes boarding homes that are municipally licensed (sec- 
ond-level lodging homes); unlicensed; of unknown status; and supervised and 
domiciliary boarding homes includes those regulated by Habitat Services in 
Toronto 

c) Rooming Houses 

d) Supportive/Regulated Housing — includes group homes, co-ops, HSC (Residen- 
tial), Approved Homes, MCSS homes, foster homes, correctional halfway houses 

e) Extended Care— includes nursing homes, homes for the Aged, HSC (Nursing) 

f) Hostels— includes shelters and temporary residences 

g) No Fixed Abode— includes discharges to the street 

h) Other Institutions— includes hospitals (general and psychiatric), correctional 

institutions, and other treatment centres 
i) Unknown— includes discharges Against Medical Advice (AMA), and Absence 

without Leave (AWOL) 
j) Other— includes deaths and deportations 



Who Are Vulnerable Adults? 31 



disabilities, and the planned phase-out of institutional placement 
of these people. 

However laudable those aims, living in the community 
often means living in unregulated rest homes. Yet adults with 
developmental disabilities are often the most vulnerable of the 
vulnerable adults. 

Seven-year strategic objectives associated with the Multi- 
Year Plan set targets for the development of community ser- 
vices and community-living places for people with develop- 
mental disabilities. For example, 683 such people living in 
nursing homes were targeted for placement in the community 
under the Multi-Year Plan; as of December 1990, 327 had 
been so placed.-^ 

Deinstitutionalization of adults with developmental disabili- 
ties has generally proceeded at a slower but more consistent 
pace than that of the psychiatric population. In 1979, there 
were 4,957 adult residents with developmental disabilities in 
Schedule 1 facilities; by 1991 this number had dropped to 
3,033, a decrease of 39 percent. 29 (See Table 6.) This popula- 
tion in Schedule 2 facilities first increased substantially, from 
475 adult residents in 1979 to 678 in 1986; however, since that 
time there has been a gradual decline, to 590 residents in 
1990. 

The total number of residents (adults and children) in 
Schedule 1 and Schedule 2 facilities has dropped by about 
half in fifteen years, from 7,766 residents in 1976 to 3,810 in 
1991. During a similar period, community-based accommoda- 
tion (group homes and supported independent living)^" h^s 
nearly tripled, from 2,645 places in 1979 to 7,344 in 1991. 

The Ministry of Community and Social Services (MCSS) 
intends that by the year 2010 there will be no Schedule 1 or 2 
facilities in Ontario, but there will be 17;000 community-based 
accommodation spaces and 44,000 adults using community- 
based services. This is an ambitious goal, which the Commis- 
sion endorses and supports. We also urge that the plan be 
adequately funded, for the current number of community- 



28 The Ministry of Community 
and Social Services estimates 
there are currently between 
28,000 and 35,000 persons 
with developmental disabili- 
ties in Ontario using govern- 
ment-funded services of some 
kind, including about 12,000 
people in Schedule 1 and 2 
facilities, nursing homes, and 
community-based accommo- 
dation. MCSS also estimates 
that at least 50,000 people 
with developmental disabili- 
ties may be living in the com- 
munity without using govern- 
ment-operated or -funded 
developmental services. 

29 There are eleven Schedule 1 
facilities directly operated by 
the province of Ontario. 
There are currently nine 
Schedule 2 facilities that 
receive government funding 
but are operated by commu- 
nity-based boards of direc- 
tors. 

30 There are approximately 700 
group homes for adults with 
developmental disabilities in 
Ontario, ranging in size from 
two to fifteen beds, with the 
majority in the four-to-six-bed 
range. 

The Supported Indepen- 
dent-Living (SIL) program 
provides support for adults 
with developmental disabili- 
ties to move from residential 
facilities, group homes, or 
parental homes into main- 
stream accommodation. The 
program provides appropriate 
supervisory and training ser- 
vices to promote a more 
independent and self-suffi- 
cient lifestyle. In 1987-88 
there were 1,525 people in 
the SIL program; in 1990-91 
there were 2,075. 

The Family Home program 



32 Where You Live Can Make You Vulnerable 

Table 6 

Statistics on Accommodation Services for People witli 

Developmental Disabilities in Ontario 









Total/ 












of Residents 




/of 








in Schedule 


Community- 


. People Using 




Schedule 1 


Schedule 2 


land 2 


based 


Community- 




Facilities 


Facilities 


Facilities 


Accom- 


based 




/of Adult 


# of Adult 


(Adults 


modation 


Services 


Year 


Residents 


Residents 


and Children) 


(spaces) 


(estimate) 


1974 








700 




1975 








888 




1976 






7,766 


1,245 


4,600 


1979 


4,957 


475 


7,191 


2,645 




1986 


4,200 


678 


5,477 


4,884 


25,000 


1987 


3,904 


684 


5,083 


5,305 


_ 


1988 


3,769 


638 


4,800 


5,678 


_ 


1989 


3,635 


634 


4,607 


6,243 


27,000 


1990 


3,554 


627 


4,461 


6,725 




1991 


3,033 


590 


3,810 


7,344 


29,000 


2010 











17,000 


44,000 


(proj) 












% change 












1979-91 


-39% 


+24% 


-55% 


+178% 





provides funding for families based accommodation spaces must more than double within 
who are willing to share their .1 ^ ^ • 1 -r /^ ^ • -^i j 1 ^ 1 i- 

home with one or two adults ^^^ twenty-year period if Ontarians with developmental dis- 

or children with developmen- abilities are to be adequately accommodated when they 

tal disabilities. , . . 

become adults. 



Developmental Disability and Rest Homes 

The children's services program of MCSS funds services for 



Who Are Vulnerable Adults? 33 



children with developmental disabilities. When children 
receiving such services turn eighteen (or twenty-one, if Crown 
wards), Adult Protective Services Workers (APSWs)^! — advo- 
cates and case managers — are usually assigned. At this time, 
too, the task of finding suitable housing and services begins, 
just as funding drops severely: services in children's programs, 
which can cost several hundred dollars a day, depending on 
need, are replaced by social assistance — $688 per month 
under the Guaranteed Annual Income System — Disabled 
[GAINS(D)]. 

The waiting period for places in group homes or indepen- 
dent living arrangements for this population group is typically 
three to five years. As a result, interim housing must be found. 
Two options are available, both involving unregulated hous- 
ing. The first is remaining past the age of majority in a chil- 
dren's home;3^ the second option is a rest home. 

We have some data on adults with developmental disabilities 
residing in rest homes. A 1988 Task Force on Boarding Homes 
of the Ontario Association of Community Living (OACL>3 sent 
out a survey to APSWs across the province; the response rate 
was 79 percent. The survey found that there were 217 boarding 
homes in the province in which people with developmental dis- 
abilities lived, and that the total number of APSW clients in 
these boarding homes was 369.^^ 

Several important facts about the residents were derived 
from the study: 

1. almost 40 percent of the residents saw their families 
once a year or less, but almost 25 percent had weekly vis- 
its from families; 

2. nearly 40 percent of the residents had been placed in 
boarding homes by their families; 10 percent came from 
psychiatric facilities, and nearly 20 percent were placed by 
a child-welfare agency; 

3. 37 percent of the residents were in boarding homes 
because there was no other option; 



31 The APSW system grew out 
of the 1971 Williston Report, 
which recommended phas- 
ing out large psychiatric insti- 
tutions. In 1976, MCSS intro- 
duced an adult protective 
services program for persons 
with developmental disabili- 
ties in which the workers 
would he funded 100 per- 
cent by the ministry but 
would be sponsored by local 
community agencies. Their 
mandate was to serve as 
both case managers and 
advocates, but a 1983 docu- 
ment eliminated any refer- 
ence to the advocacy func- 
tion. 

32 This path involves a number 
of broader issues affecting 
public policy. Children's 
homes are regulated for a 
population of children; they 
are not regulated with 
respect to the needs of 
adults. See the discussion in 
chapter 12. 

33 Ontario Association of Com- 
munity Living, APSW Survey 
Report, draft copy, dated Jan- 
uary 18, 1990. 

34 These figures are an under- 
estimate because the 
response rate, though high, 
is less than 100 percent; in 
addition, not all adults with 
developmental disabilities 
choose to have APSWs. 



34 Where You Live Can Make You Vulnerable 



35 We discuss later the meaning 
of a finding such as this. 
Specifically we shall question 
whether operators should be 
providing the needed services 
(such as day activities, coun- 
selling, etc.). The failure of 
community agencies to pro- 
vide these supports, as noted 
in the text, is a matter of great 
concern to this Commission. 

36 Adult Protective Service Asso- 
ciation of Ontario, Home Is 
Where the Hurt Is: Strategies 

for Eliminating the Pain. A 
submission to the Commission 
of Inquiry into Unregulated 
Residential Accommodation, 
written by Patricia Spindel, 
consultant to the executive. 

37 The report broke down the 
findings: 379 persons in 
boarding homes, sixty in rest 
homes, and fourteen in retire- 
ment homes. We indicate 
elsewhere that the distinctions 
among these categories are 
not always clear and we pre- 
fer to treat them as a single 
residential category. 



4. some residents chose boarding homes because of the 
absence of the rules and supervision one would find, for 
example, in a group home; 

5. 87.5 percent of the residents needed services/supports not 
being provided by the operators of their home;^'' and about 
65 percent of the APSW clients in boarding homes needed 
services/supports not provided by community agencies. 

The Task Force concluded that "too frequently relatively 
young people are 'warehoused'..." 

The Adult Protective Service Association of Ontario, the orga- 
nization representing APSWs, conducted a survey of its mem- 
bership in February 1991, in part to present information to this 
Commission.36 There was a 66 percent response rate. More than 
70 percent of respondents "indicated a serious lack of residential 
services as the most important issue facing their clients." 

The APSWs reported a total of 563 clients currently in unregu- 
lated residential settings. Of these, 110 adults with developmental 
disabilities were residing in children's homes; the remaining 453 
lived in unregulated for-profit boarding/rest/retirement homes.37 

We have identified the three categories of vulnerable adults 
who are to be the primary focus of this Inquiry and have pre- 
sented some estimates of their numbers in the population. We 
have also described, in a preliminary way, the unregulated 
accommodation in which they often reside. The Commission 
now turns its attention to proposing a framework within 
which vulnerable adults can escape from society's indifference 
to, or neglect of, their housing and care needs. The principles 
on which we have sought to build this framework are the 
subject of the next chapter. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 

3 

Residents Must Be 
Centra 



Problems — and Commissions of Inquiry — do not 
form in a contextual vacuum, and solutions are not 
developed in isolation. We begin our analysis with 
an awareness of the fiscal crisis in Ontario and 
Canada, an understanding that resources are no 
longer available to deal with a vast array of press- 
ing social needs. Decisions made in earlier years to throw 
money at social problems in the hope that they would some- 
how resolve themselves are neither feasible nor desirable, 
particularly in today's economic climate. 

We are also aware that the economic crisis has not been 
caused by vulnerable adults, many of whom exist on marginal 
incomes. We are fundamentally unwilling to recommend or 
endorse policies that require these vulnerable adults to pay 
the price of governments' past economic and social misman- 
agement. We are committed to protecting vulnerable adults 
from the consequences not only of inadequate social policies 
and community neglect, but also of regressive economic poli- 
cies that have further empowered the powerful and left the 
rest behind. Our goal is to facilitate the empowerment of dis- 
empowered and vulnerable persons in Ontario. 

In our March 1991 Discussion Paper, the Commission pre- 
sented its central principle, that the client/consumer 
survivor/resident must be the focus of any analysis. 



35 



36 Where You Live Can Make You Vulnerable 



1 The Discussion Paper noted 
that the empowerment envis- 
aged by the central principle 
is not absolute and unquali- 
fied. "The market assumption 
of sovereign consumers mak- 
ing informed choices cannot 
apply in full to a vulnerable 
population." With a vulnera- 
ble population, there is a 
simultaneous need to protect. 



Some submissions have expressed reservations about the 
Commission's commitment to consumer empowerment. In 
particular, the Alzheimer Association of Ontario and Ontario 
Friends of Schizophrenics have argued that the vulnerability 
of their populations often precludes autonomous action: 
Alzheimer's is a progressive, irreversible brain disorder that 
affects cognitive functioning; therefore, individual decision- 
making is often impossible or inappropriate. People suffering 
from schizophrenia are on medication to control potentially 
destructive behaviour; they must not be allowed the option of 
not taking their medications. 

The Commission takes due note of these concerns. Our 
general position is that vulnerability is not an absolute: we 
believe that individuals should be permitted, encouraged, and 
assisted to act autonomously and become empowered when- 
ever and to the maximum extent possible} 

We must create a community in which vulnerable adults 
can begin to take control of their lives, including control over 
where, how, and with whom they live. We cannot give 
power, but we can facilitate the development of a framework 
in which empowerment can occur. We must also offer to pro- 
tect vulnerable persons, on the understanding that protection 
cannot be imposed. Many vulnerable persons require and 
desire protection from both the harsh vicissitudes of life and 
exploitation by unrestrained economic market forces. 

These two words — "empowerment" and "protection" — rep- 
resent the key values that underpin the work of this Commis- 
sion. 



Empowerment and Protection 



The early development of Canada's welfare state placed little 
emphasis on the importance of the consumer of services in 



Residents Must Be Central 37 



the social-service system. Bureaucrats and service providers, 
often paternalistic and assumed to be benevolent, believed 
they knew what their clients needed, if not what they wanted. 
Subsequently, it was discovered that professionals and 
bureaucrats were not always benevolent and did not 
inevitably have the best interests of their clients at heart. 

The concept of empowerment grew out of a market ethos 
in which sovereign consumers decide their own preferences 
and priorities. For some, people's right to control their own 
lives without undue interference is an end in itself, a norma- 
tive view of how society ought to be organized. For others, 
empowerment is a means to other ends, among them redress- 
ing the significant inequalities in incomes, rights, and entitle- 
ments current in Canada. 

Rather than making decisions on behalf of people, surely it is 
preferable to support individuals in deciding for themselves. 
Empowerment requires the investment of time and money in 
the enhancement of vulnerable adults' capacity for autonomous 
action. It requires that society aid and assist them in making 
informed choices about how to live their lives; professionals 
become support staff to consumers^ rather than controllers of 
the environment in which clients have to exist. 



2 The term "consumer" is often 
used to describe the person 
who is to be empowered. 
Although some people see 
this label in a positive light, 
others resent the transforma- 
tion of what should be a car- 
ing and helping relationship 
with the disadvantaged into a 
crass marketplace exchange. 

3 Judith Snow, oral presenta- 
tion to symposium on long- 
term-care reform, held at 
Canadian Hearing Society, 
December 1-2, 1990. 



The battle is: who gets to define my life. I am sitting in a 
room where virtually everybody believes it is all right for a 
bunch of service people to define my life, and that in fact 
the role of the government is to create more damn services 
. . . that will define my life. 

Only I can figure out how things work for me. I cannot 
work with a bunch of people trooping through my place, 
trying to decide for me who I am and what I need. I will 
spend the rest of my life ... trying to keep them organized, 
trying to keep the teapot fuU.^ 



For consumers to have real choice, and to exercise that 



38 Where You Live Can Make You Vulnerable 



choice, three conditions must be satisfied: 

1. there must be supply, i.e., options and alternatives; oth- 
erwise, choice is meaningless; 

2. there must be information available, i.e., consumers 
must know about the options; and 

3. there must be access, i.e., consumers must have the 
power and the resources, personal and financial, to avail 
themselves of the alternatives. 

Some vulnerable persons have a limited capacity to exercise 
informed choice. However, an assumption of limited capacity 
with regard to all choices is simplistic and demeaning. Unless 
a legal determination of mental incapacity has been made, 
individuals must be directly and actively involved in all deci- 
sions that affect their lives. 

In the past, our society and governments simply identified 
criteria for "capability" and then assumed "clients" met these 
criteria. We gave them an inadequate welfare cheque and left 
them to cope in the open market, but did little to make possi- 
ble even a minimally acceptable lifestyle in that market. 

If we are to do it right this time, we must ensure that ser- 
vices and supports are in place, that meaningful choices are 
available, and that vulnerable adults are offered assistance in 
developing decision-making skills. 

When consumers have real choices and are capable of 
identifying their own priorities and preferences with adequate 
supports, there is much less need for society to make deci- 
sions on their behalf — even benevolent and protective deci- 
sions. Only in those areas in which consumers do not have 
choices or are deemed incapable of making informed choices 
is mandatory intervention appropriate. To neither protect nor 
enhance choices and consumer competence is to abandon 
our collective responsibilities to the most vulnerable members 
of our society. 



Residents Must Be Central 39 



The Supports Needed for Empowerment 

For people to become empowered, they must first and fore- 
most have adequate incomes. Therefore, Ontario's major 
social-assistance review is of critical importance to vulnerable 
persons in this province. This Commission endorses the major 
initiatives on social-assistance reform in Ontario {Transitions 
and Back on Track). We urge the Ontario government to 
implement social-assistance reform as quickly as possible. 

Empowerment also requires a range of human supports to 
assist vulnerable persons in exercising their rights as con- 
sumers. Vulnerable adults may require substantial amounts of 
support to survive in a market economy. 

Three aspects of empowerment are most relevant to this 
Inquiry: advocacy, the delinking of accommodation from care, 
and the direct funding of individuals. 



ADVOCACY 

Advocacy, both formal and informal, is an essential support to 
help disempowered people identify and articulate their wishes 
and needs, and, ultimately, begin to assume control over their 
lives by pursuing their rights and entitlements. 

In April 1991, the government introduced Bill 74, the 
Advocacy Act, 1991, a basic framework for a province-wide 
advocacy system, administered by an independent Advocacy 
Commission.'' Advocacy services — rights advocacy, case advo- 
cacy, and systemic advocacy'' — will be provided to vulnerable 
adults who live in facilities or in the community. 

Advocates are to act on the wishes and instructions of their 
clients. 

Advocacy alone is not sufficient to empower residents in 
rest homes; however, it is an essential form of investment in 
people, which should generate a long-term social return as 



4 Many of tPhe operating 
details will be worked out by 
the Commission itself, and 
the amount of funding and 
size of the program are not 
yet known. 

5 The three types are defined 
as follows: 

1. rights advocacy: informa- 
tion and assistance will be 
provided about the vulnera- 
ble person's rights in special 
circumstances, particularly 
cases of proposed guardian- 
ship, in medical consent situ- 
ations, and when giving 
power of attorney; 

2. case advocacy: the advo- 
cate will act as an "articulate 
intermediary," assisting vul- 
nerable persons "to express 
and act on their wishes, 
ascertain and exercise their 
rights, speak on their own 
behalf; 

3. systemic advocacy: this 
focuses on wider concerns, . 
specifically "to help vulnera- 
ble persons to bring about 
structural changes at the 
political, legal, social, eco- 
nomic, and institutional lev- 
els." 



40 Where You Live Can Make You Vulnerable 



6 The present legislation, the 
Mental Incompetettcy Act, 
contains procedures that are 
expensive and time-consum- 
ing. As a result, family mem- 
bers and service providers 
often act on their own per- 
ceptions of allegedly inca- 
pable persons' best interests 
to make personal-care deci- 
sions for those persons. At 
present there is no public 
official with authority to act 
in personal-care matters for 
incapable persons who lack 
family or friends to make 
decisions for them. 



the competencies of vulnerable persons are enhanced and 
strengthened. 

We believe that following the passage of the Advocacy Act, 
1991, adequate funding and staffing should become a priority 
of the government so that the program might become opera- 
tional as soon as possible. 

Substitute Decision-Making 

As persons living in rest homes may become mentally inca- 
pable at some point, it is important to have clear standards 
for deciding when this occurs and simple procedures (includ- 
ing emergency procedures) for providing a decision-maker in 
such circumstances. 

Bill 108, the Substitute Decisions Act, 1991, introduced in 
May 1991,'' includes a streamlined process to appoint private 
guardians (such as family or friends) for mentally incapable 
persons; assured access to a substitute decision-maker for all 
mentally incapable persons through a new Office of the Pub- 
lic Guardian and Trustee; partial guardianship; and an emer- 
gency procedure including temporary powers. 



DELINKING ACCOMMODATION FROM CARE 



Separating accommodation from support services is a direct 
corollary of individual empowerment. If people are to make 
decisions about their lives, they must be able to choose 
where they wish to live, rather than being required to live in 
a particular setting because care is delivered there. To tie 
housing to the use of health or social services is to infringe 
inappropriately on individuals' right of self-directed action. 
(Whether such infringements are ever justifiable is discussed 
in Part III.) 

"Aging in place" describes a service model in which 
portable, community-based services come to individuals, who 
can then remain living in their own homes as long as such 



Residents Must Be Central 41 



services can meet their needs. The approach avoids the high 
costs of excessive institutionalization; more important, howev- 
er, it recognizes that consumers of services should not be 
required to move from place to place in order to receive 
needed services.^ 

One consequence of this thinking is that the group home 
is being de-emphasized as a model of service delivery. In the 
group home, accommodation and support services (usually 
counselling) are delivered by the same agency: when con- 
sumers receive housing, they also accept the entire service 
package. However, the roles and responsibilities of landlords 
and service providers are quite distinct. Logically, housing 
should be provided by housing agencies, services by care 
providers. 

An important (and underrecognized) 1987 document^ 
strongly advocated as much delinking of housing and support 
services as possible: 

the special needs tof a person] should not be the primary 
factor defining the choice of residence.... People with spe- 
cial needs should be able to choose from as wide a range 
of [housing] options as the general public, bearing in mind 
normal constraints such as affordability. 

The report concluded that a supportive housing policy has 
three key goals — independence, integration, and stability — 
and that linking housing to support services undermines all 
three.9 

The Commission endorses the trend to delink accommoda- 
tion from care and urges that initiatives continue to be devel- 
oped. 



7 A series of regional consulta- 
tions on (public) housing and 
support services for the 
elderly were held in 1989. A 
summary of these consulta- 
tions reported: 

Tenants do not want to 
leave their apartments if 
and/or when their needs for 
support services increase. If 
they become unable to take 
care of themselves, they 
would prefer to receive sup- 
port services in their apart- 
ment for as long as possi- 
ble.... Very few tenants said 
they would be willing to go 
to Nursing Homes or Homes 
for the Aged. 

(Memorandum to Housing 
Authority Managers from 
Tenant Support Services 
Branch Re: Housing for the 
Elderly, Ministry of Housing, 
January 13. 1989). 

8 More Than Shelter, Interim 
Report of the working Com- 
mittee on Supportive Com- 
munity Living, (Ministry of 
Housing, January 1987). 

9 A 1990 discussion paper on 
supportive housing observed 
that all affected ministries — 
primarily Health, Housing, 
and Community and Social 
Services — "are now commit- 
ted to the intent and princi- 
ples" of supportive housing, 
which may entail delinking 
of services. Discussion Paper 
on Supportive Housing, pre- 
pared by Burt Perrin Associ- 
ates for the Ministry of Hous- 
ing and the Ministry of Com- 
munity and Social Services, 
August 14, 1990, p.31. 



DIRECT FUNDING 



Dij-ect funding as a means of empowerment presupposes the 



42 Where You Live Can Make You Vulnerable 



10 Individuals are deemed to be 
the best judge of their own 
priorities, best able to decide 
their own priorities among 
housing and all other needs 
(including food and services). 
In theory, there would be no 
checks or controls on how 
the money is spent, though 
this might not be practicable. 

1 1 The program operates on the 
assumption that the family 
will be primary care -givers. 
Families have an option to 
administer the SSAH funds 
themselves. They can either 
hire the service worker on a 
contract or they can assume a 
formal employer/employee 
relationship that entails bene- 
fits, withholding taxes, etc. 
Family members cannot be 
hired. 

12 Strategies for Change: Com- 
prehensive Reform of 
Ontario's Long-Term Care 
Services (1990) and Redirec- 
tion of Long-Term Care and 
Support services in Ontario-. A 
Public Consultation Paper 
(1991). With direct funding, 
persons would receive an 
amount of money equal to 
the cost of the services they 
would receive if these ser- 
vices were purchased on 
their behalf by the long-term- 
care system. 



availability of community-based services. Individuals receive 
an assessment of need by some community agency or govern- 
ment; they then decide how these needs are to be met. They 
may choose to purchase a package of services or one or more 
separate services. Payment might be made directly by individ- 
uals or by an agency on individuals' behalf. 

In the pure case, individuals are given a lump sum of 
money, which can then be spent as desired: the proportion 
spent on housing, support services, and other things is up to the 
individuals themselves. ^o 

There is little direct funding in Ontario, although the Spe- 
cial Services at Home program (SSAH) of MCSS does fund 
directly. The program was designed (in 1982) for families who 
are primary care-givers for children with developmental dis- 
abilities; it has since been extended to include adults with 
developmental disabilities who are living at home with their 
families as well as to children with physical disabilities. SSAH 
provides funds to purchase supports and services not avail- 
able from agencies in the community, such as family relief or 
respite care and special services assistance with particular 
tasks. 11 

The long-term-care proposals of the previous and current 
governments contain another initiative for direct funding of 
physically disabled adults. 12 

The Commission endorses the direct funding of social ben- 
efits and urges that more such initiatives be developed. 



The Rest Home: 
Accommodation or Care? 



In our Discussion Paper of March 1991, the Commission 
posed a dichotomy as a "fundamental question that faces the 



Residents Must Be Central 43 



Commission": is accommodation with care to be conceptual- 
ized primarily as housing or as care? 

Some responses have convincingly argued that the rest 
home is both housing and a setting in which care is provided. 
The major industry association formally views the rest home 
as holding a unique place between traditional housing and a 
full-care facility such as a nursing home: rather than retain this 
dichotomy, they suggest a continuum of care, on which the 
rest home occupies a distinct place. 

Personal visits by and submissions to the Commission have 
confirmed that, indeed, there is no simple dichotomy: some 
retirement homes are targeted at the "well elderly"; they offer 
a particular style of living in which care services receive 
scarcely a mention. Other rest homes are nursing homes in 
every way save provincial regulation, licensing, and per diem 
funding under the Nursing Homes Act. One of the great 
strengths of the rest-home industry has been its flexibility, its 
ability to respond to a range of needs identified in the market. 

The question posed by the Commission remains an impor- 
tant one, however, for it is our purpose to suggest future 
direction, rather than to describe current practice. In part 
because of the legal and definitional void, rest homes have 
come to fill an array of service needs, without any governing 
coherence or compatibility with other social priorities. Our 
task is to recommend a measure of coherence and direction 
for the industry that will blend with other government and 
private-sector initiatives, while not unnecessarily infringing 
upon market activity. 

Governmental priorities in long-term care and elsewhere 
have moved towards funding community-based services and 
agencies and, to some extent, people directly. New care-giving 
institutions on the nursing-home model are not being contem- 
plated by government. Any private-sector initiatives to create 
new institutional care facilities will stand or fall on their ability to 
read the market, independent of government policy, involve- 
ment, or support. 



44 Where You Live Can Make You Vulnerable 



13 This would constitute another 
route to expanding ntirsing- 
home places. If community- 
based in-home services are 
not expanded, these places 
will be sorely needed as the 
population continues to age. 



Most important, however, is the consumers' view of rest 
homes. "Residents," as the term makes clear, see rest homes 
as their home, not a place of temporary sojourn. It is their 
sole permanent accommodation. Indeed, those going into 
retirement homes usually sell their homes or give up their 
apartments and take furniture and other personal belongings 
with them. 

The rest home is also seen as permanent accommodation 
by operators and government. It is also seen as a site where 
variable amounts and types of care are given; however, the 
accommodation. function is the central, ongoing characteristic. 



RECOMMENDATION 2: That the rest home's primary 
function be viewed as the provision of residential accom- 
modation in which some element of care is also provided. 



COMMUNITY RESIDE 
INSTITUTION? 



CE OR 



The relationship of rest homes to licensed nursing homes and, 
by extension, to the proposed long-term-care system has been 
raised in many submissions to the Commission. Some have 
argued that rest homes should be formally considered to be 
low-level or first-stage nursing homes, funded by the province 
at a suitable per diem rate, and regulated comprehensively. 
Some have advocated the absorption of rest homes into the 
nursing-home sector, without restricting them to low levels of 
care. '3 Either approach would incorporate rest homes into the 
institutional sector of the long-term-care system and expand 
the number of nursing-home beds. 

Others argue that new "institutions" in any form are funda- 
mentally at odds with the thrust of long-term-care reform. Rest 
homes, they argue, should be a form of residence, part of the 
community rather than part of the institutional world. 

The rest-home industry, as we have noted, holds a middle 



Residents Must Be Central 45 



view, that their premises are a point on the continuum of 
long-term care between community care in one's own home 
and a full-care facility. 

However, the concept of "continuum of care" has been 
supplanted in public policy-making by the even more power- 
ful idea of "aging in place." Rather than being moved around 
as they age, people should stay in their homes as long as pos- 
sible, with services coming to them. It is this view that has led 
to governmental decisions, over many years, not to develop 
new institutions, but rather to focus on portable and flexible 
services delivered to people in their homes. i"* 



14 The Commission does not 
deny the need for institu- 
tions, and accepts that there 
is probably some limit for 
institutionalization rates 
below which the cost of com- 
munity services would be 
prohibitive. We merely argue, 
as others have done, that 
many more people could be 
better served in the commu- 
nity and that Ontario has 
been overly preoccupied 
with an "institutionalization" 
model in relating to persons 
with long-term- care needs. 



RECOMMENDATION 3: That the government of Ontario 
expand, as a matter of priority, community services that 
enable people to remain in their own homes. 

Figure 1 

Viewing the Rest Home 



Home/Community 
Home 



Institution 
High-Care Facility 



Rest Home -'' 



Aging in Place 

Continuum of Institutional Care 



Rest Home 



Figure 1 presents two views of the rest home. The solid line 
presents the continuum-of-institutional-care model, in which 



46 Where You Live Can Make You Vulnerable 



the rest home occupies an intermediate stage; the dotted line 
presents the rest home as an alternative to a private residence 
in the community, rather than part of the world of the institu- 
tion. 

In both cases, the rest home lies between the private home 
and the high-care facility. However, the first alternative views 
the rest home as a low-level care institution, a modified nurs- 
ing home. This implies per diem provincial funding and com- 
prehensive regulation. In the second alternative, the rest 
home is treated as a private residence rather than an institu- 
tion. This involves no ongoing per diem funding to operators; 
rather, residents would be eligible for any and all in-home ser- 
vices available or developed in future as part of the long- 
term-care reform. 

It is the strong view of this Commission that the second 
alternative represents the preferable description of the rest 
home. We cannot recommend new low-level care institutions 
knowing that during the next few years they might well be 
dismantled or de-emphasized in favour of portable services. 

RECOMMENDATION 4: That the rest home be viewed as 
an alternative form of accommodation in the community, 
and not as the first stage in a continuum of institutional 
care. 

We see the future rest home as one of several community resi- 
dential options within a fully mature system of long-term care. 
Many care services now delivered in nursing homes will be 
delivered to people in their own homes, which may include 
rest homes. Some persons now placed in nursing homes so 
their needs can be met would be able to remain in the com- 
munity. 

A dichotomy of accommodation will emerge: one's own 
residence as long as possible, followed by a high-care, gov- 
ernment-regulated facility when and if necessary. Govern- 
ment-funded low-care institutional beds will be phased out, as 



Residents Must Be Central 47 



services are able to be delivered in individuals' homes. i5 

In short, the Commission views the rest home as a form of 
residence, freely chosen by people who prefer such a setting 
to other housing options, including their former homes. i*^ 



LONG-TERM CARE 

A substantial number of submissions and presentations have 
urgently advocated that rest homes be incorporated in the 
Ontario government's long-term-care reform initiative. They 
consider it absurd to undertake so fundamental a reform, 
while ignoring a major component such as rest homes. 
Indeed, rest homes have been omitted from the long-term- 
care initiative to date^^ and it is certainly appropriate that this 
Commission consider them within this context. 

The Commission holds that rest homes should be viewed 
as part of the community and should not become new low- 
level care institutions. Rest homes, if they are to find a market 
niche, will do so as an alternative form of private accommo- 
dation for persons who want and are willing and able to pay 
for care services offered by the homes. The rest home will, in 
some ways, compete as provider of care services with the in- 
home services that will emerge from long-term-care reform. 

Take one example: assistance with bathing is a common 
service offered in retirement homes, and residents often pur- 
chase this service from operators. There is no eligibility criteri- 
on other than that residents have the money to buy the ser- 
vice and wish to do so. 

Government-funded programs also offer assistance with 
bathing. For those who qualify. Home Care operates as a 
medicare service funded under the Health Insurance Act with 
no user fee.^^ However, because total resources in the Home 
Care program are limited, service may not be available to all 
who meet the program's criteria. Therefore, administrative dis- 
cretion is often used to ration service. Local Home Care 



15 We may note the intent of 
the British Columbia govern- 
ment to withdraw from the 
funding of low-care institu- 
tions, to be replaced by 
enhanced community care. 

16 Consistent with the principle 
of empowerment adopted by 
the Commission, the decision 
of where to live and where to 
receive care must always be 
made, to the maximum extent 
possible, by the persons con- 
cerned. 

17 Rest homes were originally 
omitted from the long-term- 
care initiative because it was 
necessary to put closure of 
some sort on what was a 
massive undertaking; more- 
over, there was no legal defi- 
nition of "rest home" with 
which the policy-makers 
could work. 

18 As part of long-term-care 
reform, there are plans to de- 
insure Home Care services 
from the Health Insurance 
Act. It is important that the 
government identify explicit 
rationing criteria to determine 
eligibility for Home Care 
once it is no longer an enti- 
tlement. 



48 Where You Live Can Make You Vulnerable 



19 In either case, they can also 
privately purchase the care 
from other suppliers in the 
community. Some consumers, 
ineligible for Home Care, will 
choose to purchase care ser- 
vices in rest homes. 

20 Section 3 of the Nursing 
Homes Act prohibits any per- 
son from establishing, operat- 
ing, or maintaining a nursing 
home unless the facility is 
licensed by the Ministry of 
Health. The legal definition of 
a "nursing home" then 
becomes critical. 

Under the Act, a nursing 
home "means any premises 
maintained and operated for 
persons requiring nursing 
care or in which such care is 
provided to two or more 
unrelated persons." "Nursing 
care," in turn, is defined to 
include both "intermediate 
nursing care" and "extended 
care." The former means 
"nursing and personal care 
given by or under the super- 
vision of a registered nurse or 
registered nursing assistant 
under the direction of a 
physician to a resident for 
less than one and one-half 
hours per day." "Extended 
care" has the same definition, 
with the added specification 
of "a minimum of one and 
one-half hours a day." 

This was the basis of the 
observation in the Commis- 
sion's Discussion Paper (p. 6, 
footnote 3) that "delivery of 
nursing care to two or more 
unrelated persons in a 
premises requires licensing 
under the Nursing Homes 
Act." 



administrators may refuse or limit such services to rest-home 
residents on the assumption that they are receiving care in the 
rest home. Thus residents of a retirement home may be com- 
pelled to pay privately for this service even though they quali- 
fy for Home Care. 

As in-home social and health services become more readily 
available in the community, residents with adequate income 
who qualify for these services will have several options. If 
they choose to live in retirement homes, they may purchase 
care services from the operators; or, if eligible, they may 
receive these services from Home Care. They may prefer to 
remain in their own homes and, if eligible, receive assistance 
in that setting. i9 The success of the retirement-home industry 
will depend on its ability to persuade consumers that it is the 
preferable option. 

Further discussion of this approach, and our recommenda- 
tions, are included in chapter 6, "Life at the Top." 



"BOOTLEG" NURSING HOMES 

Much reference has been made to "bootleg" nursing homes, a 
phrase widely used to describe rest homes that deliver high 
levels of care, including nursing care, to residents on a com- 
mercial basis. They serve, in effect, as nursing homes, 
although they are not licensed, regulated, inspected, or fund- 
ed by the province under the Nursing Homes Act. 

The Nursing Homes Act requires the licensing of all 
premises that meet the Act's definition of a "nursing home." 
Premises that come within the definition but are not licensed 
may be closed; at the same time, the province limits the num- 
ber of nursing-home licences it issues. 

Strictly speaking, under the Nursing Homes Act, any 
premises providing any nursing care by or under the supervi- 
sion of an RN or RNA to two or more unrelated persons may 
require a licence to operate legally. 20 In practice, however, 
the Act is not interpreted so strictly. The Ontario government 



Residents Must Be Central 49 



provides per diem funding to licensed nursing-home opera- 
tors only for "extended care" (more than ninety minutes of 
nursing care for a resident each day). 

A bootleg nursing home is therefore a rest home that pro- 
vides more than ninety minutes of nursing care a day for two 
or more unrelated residents and does not have a nursing- 
home licence under the Nursing Homes Act. 

The bootleg nursing home effectively creates a two-tier 
system of nursing-home care — those regulated and funded by 
the Ontario government, and those unregulated and funded 
on a private commercial basis. 

Bootleg nursing homes operate with the acquiescence of 
operators, residents, and government. Residents may need 
high-level personal and nursing care; however, both licensed 
nursing-home beds and acceptable community-based home 
services may be unavailable. Families with the resources to 
pay privately may be desperate to find placements for rela- 
tives whose needs have grown; rest-home operators are 
happy to oblige, as payment is set without government 
involvement, sometimes in excess of the nursing-home per 
diem. 

Ministry of Health (MoH) inspectors seem unwilling to close 
down unlicensed bootleg nursing-home beds while there are no 
alternatives available. It is also difficult to determine when par- 
ticular individuals receive more than the ninety-minute nursing- 
care minimum, as rest homes are not required to record such 
data. The Residential Services Branch of the Community Health 
and Support Services Division (CHSSD) (a part of MCSS and 
MoH), who are responsible for enforcing the Nursing Homes 
Act, assert that the Act was not intended to prevent the private 
purchase or sale of unlimited amounts of nursing care; however, 
the Commission's reading of the Nursing Homes Act suggests the 
contrary. -1 Indeed, we feel that steps must be taken by the 
CHSSD to ensure its Residential Services Branch has clear crite- 
ria for enforcing the Nursing Homes Act. 



21 Section 17(2) of the Nursing 
Homes Act sidles: "Where an 
inspector has reasonable and 
probable grounds to believe 
that any premises are being 
used as a nursing home with- 
out being licensed under this 
Act, the inspector without a 
warrant . . . may enter upon 
such . . . premises for the pur- 
pose of determining whether 
or not the person is in con- 
travention of section 3 [the 
requirement to have a licence 
to operate a nursing home]." 



50 Where You Live Can Make You Vulnerable 



RECOMMENDATION 5: That the Community Health and 
Support Services Division develop a precise legal definition 
of a "nursing home" so that it is clear which premises 
offering "nursing care" require a licence. 

This definition may retain the current ninety-minute minimum 
for nursing care or any other cutoff point that is deemed 
appropriate. Such a determination would then imply that a 
legal rest-home operator can provide no more than this 
threshold of nursing care. 

This two-tiered system of nursing-home cafe is, of course, 
institutional care. Persons with adequate financial resources 
have always had the option to privately purchase care and 
services to be provided in their personal residence. As the 
Commission recommends that a rest home be considered to 
be a "personal residence," rest-home residents must have the 
same right to privately purchase care in their private homes. 

We recommend that rest-home operators be prohibited 
from selling more than a specified amount of nursing care. 
Historically, the state has decided that once health-care needs 
reach a certain point, these needs should be provided only by 
persons who are licensed and regulated The complexity of 
the service required and the vulnerability of a potential pur- 
chaser dictate that only "approved" sellers may deliver institu- 
tional health care. The point beyond which unlicensed sellers 
will be excluded will be that distinguishing nursing care from 
rest-home care. 

The net effect is that residents of rest homes will be free to 
privately purchase whatever amounts of nursing care they 
desire. They may also receive, from the reformed long-term- 
care system, any amount of nursing and personal care for 
which they qualify. However, operators of rest homes will be 
able to sell nursing care only up to the threshold for licensing 
as a nursing home. 

This means that rest homes operating as bootleg nursing 
homes, i.e., providing more than threshold levels of care on 



Residents Must Be Central 51 



an unregulated basis, cannot be permitted to continue to do 
so. Residents requiring nursing care beyond the threshold 
amount should be eligible for in-home care from the long- 
term-care system, or be accommodated in a facility licensed to 
meet their needs. Those not eligible for services through long- 
term care or who desire more than the amount of nursing 
care operators may sell may purchase such care from another 
private provider. Those persons who choose to purchase up 
to the specified amount of nursing care from operators as part 
of a mandatory package of accommodation and care may, of 
course, do so. 

We assume that operators and outside suppliers will be 
required to function at arm's length, and we recommend that 
operators have no financial interest in any outside supplier 
delivering nursing-home-level care to residents of their rest 
homes. 

RECOMMENDATION 6: That no rest-home operator be 
permitted to sell more than the threshold amount of nurs- 
ing care to any resident of that rest home. 

Bootleg nursing homes are an inevitable consequence of an 
aging population, slow growth in licensed nursing-home 
beds, and a failure to develop adequate community services. 
Many residents of bootleg facilities are severely at risk, as the 
case material received by this Commission has documented 
again and again. Needed community-based services are not 
yet in place, and many residents of the bootleg facilities have 
high-care needs that cannot be met outside institutions. 

"Regularizing" the Bootleg Homes 

For those rest homes currently delivering more than the 
threshold amount of care, there are two policy options: the 
premises may either become licensed and receive per diem 
funding, subject to regular inspection; or operators may cease 



52 Where You Live Can Make You Vulnerable 



selling high amounts of care. The first option would increase 
the number of licensed nursing-home beds, which runs 
counter to the thrust of long-term-care reform. It would also 
be costly to the Treasury and reinforce a system that appears 
to generate little consumer or public satisfaction. 

The second approach, restricting the services provided by 
operators or closing these premises, is practical only if the 
care services are available from other sources, i.e., expanded 
community-based services delivered to people in their own 
homes. This option, too, will require public expenditure. 

The question is not whether to spend, but on what to 
spend. For all the reasons outlined in this Report and other 
governmental initiatives, the Commission believes that a major 
expansion of community-based services is the only viable 
alternative. However, if the government of Ontario does not 
fund major initiatives in this area, it must consider licensing 
and regulating these high-care rest homes or creating more 
legal nursing homes. The status quo is simply too dangerous 
for too many people. 

"Regularizing" these rest homes or creating new licensed 
nursing homes is the option of last resort. It will be expensive 
and will not, in our view, deliver the best quality of care. But 
it should, at the very least, protect some residents who are 
now at risk. 

Pending resolution of this problem, we stress that bootleg 
nursing homes are rest homes within our definition of the 
term; as such, all recommendations in this Report apply to 
them. These premises cannot be immune from both the Nurs- 
ing Homes Act and the Commission's proposals. 

Combined Rest Homes and Nursing Homes 

There is also a closely related concern. The Residential Ser- 
vices Branch informed us that as of April 1991, seventy-one 
licensed nursing homes (nearly one in five of the 335 such 
homes in the province) have an unregulated rest-home com- 
ponent. Approximately 3,000 unregulated rest-home beds are 



Residents Must Be Central 53 



attached to or on the same site as licensed nursing homes that 
have 30,489 licensed beds. As these rest-home beds are not 
regulated under the Nursing Homes Act, they are outside the 
mandate of the Residential Services Branch. 

Many retirement homes actively market their affiliation 
with a licensed nursing home on the premises. It is implied 
that nursing-home-level care will be provided in the rest 
home, or that rest-home residents will have preferential access 
to nursing-home beds. One retirement-home operator told 
this Commission that he had little problem with residents 
whose care needs grew beyond his ability to meet them, for 
he had an "arrangement" with a local nursing-home operator. 
Entry to his retirement home was a means to "jump the 
queue" to the nursing home. Thus, there is two-tier institu- 
tional nursing care: those with sufficient incomes may buy 
accelerated entry via the retirement home; those lacking such 
resources must wait in line. 

The rest-home-cum-nursing-home operators can control 
admission to scarce nursing-home beds. Certificates of eligibil- 
ity for "extended care" are issued by individual medical doc- 
tors, who serve as the gatekeepers to the insured system of 
nursing-home care; such certificates have proven to be fairly 
easy to obtain. The queue for nursing-home beds then occurs 
at the point of entry to the nursing home, as the supply of 
beds is smaller than the number of certificates of eligibility. 
Nursing-home operators can then decide which persons with 
extended-care certificates will be accepted in their premises. 

The Service Co-ordination Agencies (SCAs) planned by 
long-term-care reform will remove much of the nursing-home 
operators' control over access to nursing-home beds. Howev- 
er, we must stress that admission to nursing-home beds 
should be determined solely by level of need. 22 



22 The fact of residence in a rest 
home should be irrelevant. 
However, any amounts of 
care received in the rest 
home may, like care received 
in a private home, reduce the 
level of "need" and therefore 
the priority ranking to secure 
a nursing-home bed ahead of 
a person who receives no 
care. Operationally, rest 
homes cannot be assumed to 
provide any particular 
amount of care; need should 
be determined on the facts of 
each case. 



RECOMMENDATION 7: That the reform of long-term care 
ensure that admission to a nursing home is not influenced 
by a person's prior residence in a rest home. 



54 Where You Live Can Make You Vulnerable 



23 This is most likely to occur 
when the nursing- and rest- 
home beds share a common 
reception area and are built 
to a single, i.e., nursing- 
home, standard: one door 
may lead to the rest home, 
another to the nursing home. 
Perhaps such nursing homes 
are built to this design in the 
expectation of future growth 
in nursing-home places. 

24 Some of the dual (rest/nurs- 
ing) home operations are cur- 
rently in financial difficulty. 
As of November 14, 1991, 
fourteen nursing homes with 
a licensed bed capacity of 
1,493 were in receivership in 
Ontario; two of these, with a 
licensed nursing-home bed 
capacity of 376 (or 25 percent 
of the total licensed capacity 
of the fourteen homes) were 
dual nursing/rest homes. A 
further thirty-three nursing 
homes (capacity 4,516 
nursing-home beds) were 
identified by the Residential 
Services Branch as "experi- 
encing financial difficulties"; 
of these, fourteen homes 
(capacity 1,785 nursing-home 
beds, or 40 percent of the 
total) were dual operations. 
As the number of rest-home 
beds in dual operations is 
about 10 percent of the num- 
ber of licensed nursing-home 
beds in Ontario, dual opera- 
tions experience financial dif- 
ficulty at a rate greater than 
the operations with only 
nursing-home beds. It is not 
known how many rest-home 
beds are affected in the dual 
operations. 



There is one further concern about the combined rest 
home/nursing home. Presumably, occupants of rest-home 
beds in nursing homes receive less care than occupants of 
nursing-home beds in the same premises. However, as the 
care needs of occupants of the rest-home beds increase, more 
than ninety minutes of nursing care may be necessary. If there 
is no nursing-home bed available, the operator may provide 
such care on a private basis, presumably at higher cost to the 
resident: the rest-home bed thereby becomes a bootleg nurs- 
ing-home bed. 

Cross-subsidization from the unregulated charges in retire- 
ment homes to the regulated per diems in associated nursing 
homes may also occur. Any implied promise that nursing- 
home-level care will be offered in a rest-home bed is likely to 
have one of two consequences: if the beds exist in close 
proximity, there may be an averaging of care across all beds. 23 
The private-pay rest-home residents may receive higher or 
lower levels of nursing care than they are paying for. Indeed, 
publicly funded nursing-home per diems may be diverted to 
uses other than those intended and mandated. ^^ 

If care levels are not blended, rest-home residents receive 
precisely the care they contracted for. In these cases, residents 
may have been influenced by misleading, though not inaccu- 
rate, advertising of the nursing-home component. 

This Commission believes that there is substantial risk of 
averaging out levels of care in dual facilities to the probable 
detriment of the nursing-home residents, in contravention of 
the Nursing Homes Act. If care is not blended, there is little 
need for the two residences to be on the same site. Quite the 
contrary, for it creates new large institutions rather than home- 
like settings. 

RECOMMENDATION 8: That the Nursing Homes Act or its 
successor prevent licensed nursing homes from having a 
rest home on the same premises. 



Residents Must Be Central 55 



The Branch will need to develop an empirical indicator of 
"the same premises" that produces an effective physical and 
operational separation between nursing home and rest home. 
We assume all current blended sites might be grandfathered, 
and further development of this form prohibited. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

4 

The Regulatory Dilemma 



1 Office for Senior Citizens' 
Affairs, Findings of the Survey 
of Rest and Retirement Homes 
(April 1989). The survey 
defined a rest home (p. 3) as 
"a home ... which provides 
for a fee accommodation and 
residential care to two or 
more unrelated adult persons 
but would not include a hos- 
pital ... or any other facility if 
its services are licensed, 
approved or regulated by 
provincial legislation." "Resi- 
dential care" was defined as 
"supervision and assistance 
with activities of daily living." 
Data for this survey were 
reported by owners/opera- 
tors. 

2 Of the 550 homes to whom 
the survey was sent, 535 pro- 
vided information on their 
size, reporting 23,620 beds in 
total. 



Recent Ontario government concern with rest-home 
regulation began with A New Agenda: Health and 
Social Service Strategies for Ontario's Seniors (June 
1986): "The government will explore all appropri- 
ate options ... and take the necessary steps to 
ensure that rest homes are subject to appropriate 
regulation." The Office for Senior Citizens' Affairs (OSCA) 
then launched an initiative to generate a data base on rest and 
retirement homes, for not even the most basic information on 
the industry and its residents existed, i The Office contracted 
with the Ontario Social Development Council to develop a 
comprehensive inventory identifying all rest and retirement 
homes in the province and to survey these homes. Informa- 
tion was solicited on the characteristics of the homes, resi- 
dents' profile, and the care and services being provided. 

The data were collected as of September 1987 and provide 
the only detailed information to date on rest homes in 
Ontario. There was a 79 percent response rate, identifying 550 
homes comprising more than 22,000 beds.^ This is the source 
of the commonly cited 1991 estimate of about 25,000-30,000 
rest-home beds in Ontario. 

Among the interesting findings of the OSCA survey were 
the following: 



56 



The Regulatory Dilemma 57 



1. The homes range in size from two beds to more than 
500 beds, with a mean of forty-four beds and a median of 
twenty-seven. Nearly 80 percent of the homes have sixty 
beds or fewer, and 56 percent have thirty beds or fewer; 
however, 56 percent of the total beds are in homes with 
more than sixty beds. 

2. Sixty-six percent of the homes (14,551 beds) serve pri- 
marily elderly clients — at least 75 percent of residents are 
sixty-five years of age or older. Residents older than sixty- 
five represent 84 percent of all residents of rest homes;^ of 
those residents younger than sixty-five, persons with psy- 
chiatric histories represented the largest group. 

3. All but ten of the 433 homes responding to the question 
item dealing with auspice were privately owned and run 
for profit. 

4. Two thousand five hundred and ninety-four residents 
(18 percent of residents in the homes responding to the 
questionnaire) are supported through the domiciliary-hos- 
tel provision of the General Welfare Assistance (GWA) Reg- 
ulations. In those homes serving primarily residents 
younger than sixty-five, approximately 65 percent of all 
residents are funded in this way. Such residents are found 
in 45 percent of rest homes in Ontario. 



3 The OSCA survey would 
appear to significantly under- 
report the numbers of per- 
sons under sixty-five years of 
age in rest homes, compared 
to the census estimates of the 
Roeher Institute study, dis- 
cussed above. Thus, the total 
population might well have 
been in excess of 550 homes 
and 22,000 residents. 



Former Toronto alderman Anne Johnston was contracted to 
meet with elected representatives of local governments to dis- 
cuss the municipal view on regulation. Interviews were con- 
ducted with representatives of forty-five municipalities across 
the province. 

In her report of September 1987, Ms Johnston noted that in 
general, municipalities favoured province-wide standards that 
could be administered and enforced locally. There was also 
an expectation of 100 percent provincial funding for any 
future additional local responsibilities. 

An extensive consultation process was begun in March 
1987 to identify issues and make recommendations to the 



58 Where You Live Can Make You Vulnerable 



4 Rest and Retirement: A Report 
on the Regulation of Residen- 
tial Care Facilities from the 
Advisory Committee on Rest 
Homes to the minister for 
Senior Citizens' Affairs (April 
1989). 



minister for Senior Citizens' Affairs. Seventy-eight submissions 
were received, most expressing support for the regulation of 
standards of care in rest homes. An Advisory Committee, 
chaired by Alderman Jacqueline Holzman of Ottawa, submit- 
ted its report in April 1989."^ 

The present Commission of Inquiry has some difficulty 
with the orientation of the Advisory Committee. The Commit- 
tee held that "All Ontarians have the right to an adequate sys- 
tem of care in rest homes." It is our view that all Ontarians 
have the right to an adequate system of care. Whether this 
care is delivered in rest homes or elsewhere should not be 
prejudged. 

The Committee also held that the rest home should be 
viewed as the resident's home "from a philosophical perspec- 
tive" but "not ... when legal matters are under consideration." 
No rationale is given for drawing a distinction between philo- 
sophical and legal entitlements, though the effect is to pre- 
clude, a priori, coverage of rest homes under the Landlord 
and Tenant ActiLTA). 

The Committee's commitment to the "protection of opera- 
tors" and their "desire to ensure a viable industry" rather sur- 
prised us. In the resident-centred approach we prefer, the pri- 
mary concern would be to protect vulnerable residents. Nor 
do we consider the assurance of a viable industry to be a goal 
in itself: the industry exists to serve residents; if and when this 
need no longer exists, government is not obliged to support a 
non-viable industry. 

The Advisory Committee recommended that standards of 
care in rest homes be regulated as part of a comprehensive 
rationalization of the extended- and residential-care systems in 
nursing homes and homes for the aged, i.e., a single piece of 
legislation should govern residential care, whether provided in 
nursing homes, homes for the aged, or rest homes. It also rec- 
ommended that enforcement be carried out at the municipal 
level. Until such a law is in force, the Committee recommend- 
ed provincial enabling legislation that would permit munici- 



The Regulatory Dilemma 59 



palities to regulate standards of care, and drafting by the 
province of a model by-law. 

A Long-Term-Care Task Force was established by the 
provincial government in 1989. Rest and retirement homes 
were not within its mandate, as the focus was to be on pro- 
grams and services already regulated by government. 

In sum, there have been several initiatives over the years, 
reflecting the increasing severity of the problem. There has, 
however, been no tangible outcome to date. 



5 The Fire Marshals Act and the 
Public Health Act are univer- 
sally applicable across 
Ontario. 



CANADIAN COMPARISONS 



The Commission wished to learn how accommodation cor- 
responding to a rest home is regulated in other jurisdictions 
across Canada. We therefore created brief descriptions of a 
"typical" boarding home for an individual with low income 
and a "typical" luxury retirement home. We asked each 
province to describe its relevant forms of inspection or reg- 
ulation. 

Ontario is the only province with an unregulated rest- 
home sector.5 All other provinces mandate standards. Some 
deal only with matters of physical plant; others attempt to 
regulate care, as well. (At the end of this chapter is a brief 
discussion of the experience of three provinces — British 
Columbia, Manitoba, and Nova Scotia — that is particularly 
informative.) 

Generally, provinces that regulate standards of physical 
accommodation and care in rest-home-type accommodation 
also set the per diem rates that operators may charge low- 
income persons. Residents who require financial assistance 
to pay the per diem are means tested. This government 
"funding" also depends on an individualized assessment of 
the care needs of prospective residents and may include 
coritrol over who is admitted to which facility. It is signifi- 
cant that British Columbia is phasing out government fund- 



60 Where You Live Can Make You Vulnerable 



6 The "objectives/' as we have f^g of facilities that provide low levels of care in favour of 
seen, are the protection and 

empowerment of vulnerable delivering more care services in the community, 
adults. 



A Range of Views 



Two central questions were posed in this Commission's call 
for submissions: 

1. Is regulation/licensing the most appropriate response for 
the provincial government? 

2. Are there alternatives or complements to regulation that 
will better accomplish the objectives? ^ 

Briefs and presentations to the Commission advocated widely 
varying approaches. A few argued for no intervention, on the 
ideological grounds that government should not interfere in 
the workings of the private market (particularly when, as in 
the case of rest homes, the market was functioning reasonably 
well). Most participants favoured regulation of some sort, typi- 
cally arguing that there is a recognized problem in the rest- 
home sector; that it is a governmental responsibility to protect 
vulnerable adults; and that regulation is the best way to 
achieve this end. Few briefs explored the definition or impli- 
cations of regulation; most assumed that the term merely 
described government doing what was necessary to achieve 
the desired ends. 

There is a continuum of possible governmental interven- 
tions, which differ in purpose, impact, and cost — from the 
minimal to the comprehensive. 

The least of these is registration: operators register with the 
public authorities, merely to inform them of the existence and 
operation of their rest homes. Numerous concerns have been 
conveyed to the Commission that local authorities do not 
know of the existence and location of all rest homes and that 



The Regulatory Dilemma 61 



such data would be useful to public authorities and consumer 
groups. Clearly, the cost would be minimal, and the imple- 
mentation uncomplicated. 

The next step along the continuum of intervention would be 
voluntary accreditation or certification. This involves meeting 
certain professional standards or conditions, usually specified by 
an industry association. Accreditation may provide useful infor- 
mation for consumers about what operators choose to do or 
sell. It also implies that setting and meeting accreditation condi- 
tions or standards is likely to result in higher-quality care. The 
costs of this approach, which depend on the conditions or stan- 
dards set, are usually borne by the operators or accrediting 
body. 

Farther along the continuum is licensing. To hold a licence, 
one must meet standards that can be checked prior to 
issuance and/or by regular inspection to ensure the standards 
continue to be met. Licensing implies certain decisions: are 
licences issued in limited or unlimited numbers; if limited, are 
they transferable; i.e., can they be sold. Taxi or nursing-home 
licences are limited in numbers and are transferable; as such, 
they are an asset and carry property rights. Removing them 
amounts to expropriation and can be done only for cause. 
The process is difficult, time-consuming, costly, and fraught 
with legal complexity. 

At the end of the continuum is regulation: standards are set 
by government, and authority is provided to monitor and 
secure compliance. The term "comprehensive regulation" (on 
the nursing-home model), as used in this Report, means regu- 
lation with the following three characteristics: 



7 In nursing homes, the stan- 
dards are contained in the 
Nursing Homes Act and its 
regulations. Some municipali- 
ties enact by-laws that set 
such standards for all local 
rest homes. 

8 In nursing homes, there is a 
per diem paid to operators; in 
some communities, rest-home 
residents on social assistance 
may be eligible for per diem 
funding under the hostel pro- 
visions of GWA. 



1. mandatory standards apply in all covered accommoda- 
tion and include both care and physical standards;^ 

2. government inspectors (either provincial or municipal) 
enforce the standards; and 

'3. in some cases, government will fund private operators 
directly so that the standards can be met.« 



62 Where You Live Can Make You Vulnerable 



The Commission has considered each point on the continuum 
of intervention. Our views are set out below. 



VOLUNTARY ACCREDITATION 

The Commission rejects voluntary accreditation or certification 
as being insufficient to safeguard the public interest. Voluntary 
measures, by definition, imply that some operators will not 
participate and compliance cannot be enforced. However, a 
voluntary accreditation system might provide useful informa- 
tion. A "star-rating" scheme, similar to that used for hotels, 
might provide consumers with information about potential 
residences and thereby lessen the likelihood of poor choices. 
The onus for the system's implementation must lie primarily 
with the industry, and would be supplementary to other mea- 
sures considered in this Report. 

RECOMMENDATION 9: That the rest-home industry con- 
sider a system of voluntary accreditation similar to the star 
rating used in the hotel industry. 



THE CASE FOR REGULATION 

Regulation is often necessary because private-market decisions do 
not or cannot produce socially acceptable outcomes. For exam- 
ple, if the competence and/or bargaining power of vulnerable 
consumers cannot be enhanced sufficiently to produce choices 
that adequately reflect their priorities and preferences (and those 
of the wider community), the imbalance of power between a vul- 
nerable buyer and a seller will not be rectified by the free market. 
Some argue that this imbalance might be offset through the 
involvement of advocates and other outside supports, but the cost 
is likely to be prohibitive. If resources adequate to approximately 
equalize bargaining power are unlikely to be provided, regulation 



The Regulatory Dilemma 63 



is considered the next best means of protecting vulnerable per- 
sons. 

More specifically, there are three broad objectives of regula- 
tion: 

Protecting Vulnerable Persons 

Many presentations to the Commission favour regulation as 
the only way to protect vulnerable adults and to ensure they 
receive acceptable care. Some vulnerable adults are unable to 
articulate their preferences, or are unable to act upon them 
for reasons of disability, powerlessness, socialization into 
dependence and passivity, overmedication, inappropriate 
medication, or inadequate resources. These submissions argue 
that it is the responsibility of the community to ensure 
through collective intervention that vulnerable adults are not 
subject to neglect, abuse, or exploitation. 

This possibly paternalistic but inevitably benevolent argu- 
ment holds that given the obvious need for support and a 
clear governmental responsibility to protect, regulation is the 
best/obvious/only way to proceed. The costs of the approach 
and the practical difficulties in effecting successful regulation 
are usually downplayed. 

Protecting Operators 

Regulation is also a means to protect the interests of opera- 
tors. Regulation assumes standards, rules, and conditions that 
must be met. Those who will not or cannot meet these condi- 
tions will leave the industry; those who remain will be seen as 
more credible. 

For many years, the rest-home industry opposed regula- 
tion: it considered itself a private-sector initiative that should 
be free of governmental interference. More recently, the dom- 
inant (if not universal) view among owners and operators has 
changed: regulation and its associated standards are now seen 
as a way to eliminate less-reputable operators who discredit 



64 Where You Live Can Make You Vulnerable 



9 Regulation would also likely 
imply consistent compensa- 
tion for particular services. 



the majority, and to gain recognition and acceptance of the 
industry in the long-term-care sector and in the business com- 
munity. However, government-imposed standards must come 
with funding for residents on social assistance that is adequate 
for the industry to meet these standards. 

Regulation would set parameters for the industry and 
define precisely what qualifies as a rest home. Thus, operators 
would be protected from consumers' unrealistic or unreason- 
able expectations. 



Consistency 

Lack of uniform treatment has been a recurring theme before 
the Commission. Families, operators, residents, and interest 
groups have stressed the inequity of current inconsistent treat- 
ment, and the practical difficulties of negotiating one's way 
through a system wherein conditions and rules are nowhere 
clearly and comprehensively set out. Regulation requires that 
the industry comply with specific standards and, in some 
cases, that everyone do the same thing in the same way. Reg- 
ulation of the industry would thus likely create consistent 
province-wide or municipal standards. 9 

The interests of municipalities could be protected by 
provincial regulation, which could identify the rights and 
responsibilities of municipalities. Regulations would also 
clearly define the roles and authority of various professionals, 
such as public-health nurses and fire inspectors. 



THE CASE AGAINST REGULATION 



The Commission has heard presentations arguing that regula- 
tion, particularly comprehensive regulation on the nursing- 
home model, is not appropriate to the rest-home sector. 

Housing groups have generally opposed rigorous stan- 
dards because higher costs to rest-home operators will 



The Regulatory Dilemma 65 



inevitably decrease the availability of low-income accommo- 
dation. Some advocacy groups have opposed comprehensive 
regulation because they oppose the creation of new private- 
sector, government-funded or -subsidized institutions: they 
particularly do not want to emulate the nursing-home model 
and advocate instead the urgent development of community- 
based in-home services. 

There are six main arguments put forward: 



10 There is also little incentive 
for residents to become more 
independent in rest homes; 
by their very nature, regula- 
tions impose a constant and 
uniform standard that may 
have little relevance to indi- 
vidual needs and capabilities. 



Disempowerment 

Perhaps the most compelling argument against extensive reg- 
ulation is that residents can be excluded from important deci- 
sions affecting their accommodation. Rules and standards are 
determined politically or bureaucratically, and enforced by the 
regulator. The residents have little involvement in deciding 
what is acceptable, and little power over ensuring its attain- 
ment. 'o 



Decreased Supply 

Regulated standards increase costs to operators. Some opera- 
tions will no longer be economically viable and will close 
down. The result will be a reduced supply of accommodation. 

It is assumed the luxury retirement-home industry operates 
at a relatively high standard and would be little affected, in 
dollar terms, by new regulatory requirements. Thus it is 
unlikely that any accommodation in this sector would leave 
the market as a direct result of new regulated standards. 

The issue is critical, however, at the low end of the market. 
Given that many residents live on fixed incomes, operators 
would be unable to pass on increased costs. Thus, profits 
would be reduced, and some housing would be converted to 
other uses, thereby decreasing the supply of rest-home places. 
And, of course, some operators would simply ignore the regu- 
lations. 

Advocacy groups for the most marginally housed have 



66 Where You Live Can Make You Vulnerable 



1 1 Elasticity of market demand — 
the sensitivity of response 
patterns among consumers to 
changes in price — would 
influence the sharing of these 
higher costs between buyer 
and seller. 

12 Old Age Security/Guaranteed 
Income Supplement/Guaran- 
teed Annual Income System 

13 By way of illustration, we 
note a proposal from the 
Regional Municipality of 
Hamilton-Wentworth submit- 
ted to the provincial govern- 
ment in 1989. (City of Hamil- 
ton and Regional Municipality 
of Hamilton-Wentworth, A 
Pilot Project to Implement a 
New Second-Level Lodging 
House By-Law [M'dy 19891). In 
this document, the sum of 
$1.2 million was sought to 
upgrade the inspection of 
lodging homes and to plug 
some perceived gaps in the 
coverage of the by-law. 
Though the funds were origi- 
nally sought as a pilot pro- 
ject, ongoing support was 
anticipated. 

In the Commission's view, 
the more one regulates, the 
more those regulated attempt 
to find loopholes, and the 
loopholes are identified and 
plugged with more regula- 
tion. A regulatory system, 
almost by definition, can 
never be "complete" as long 
as those regulated are free to 
alter their actions. 



repeatedly stressed opposition to regulation, because it 
inevitably results in dehousing, particularly in communities in 
which the supply of low-quality housing is severely limited. 

This issue is among the most straightforward — and the 
most troubling — to come before the Commission. The intent 
of regulations and standards is to protect vulnerable persons; 
however, if the effect of regulation is to eliminate scarce hous- 
ing, is this protection? Is substandard housing that may place 
residents at immediate physical risk better than no housing? 

Higher Cost 

The increased costs of meeting higher standards would be 
passed on to consumers whenever and to the maximum 
extent possible, i^ Many rest-home residents cannot absorb 
higher costs without commensurate increases in social assis- 
tance. The Commission set out the need to offset these higher 
costs in the Discussion Paper (p. 17): 

If government mandates a certain level (and cost) of ser- 
vice, and if government determines what consumers can 
pay through social assistance or OAS/GIS/GAINS,i2 then 
government must bridge the gap between what it expects 
from owners and operators and what it is prepared to pro- 
vide to consumers. This is a statement of both ethical pro- 
priety and operational necessity. 

Without such increases, standards would be ignored, often 
with the tacit acquiescence of the regulatory authorities. 

The typically substantial administrative costs associated 
with regulation are considered necessary to ensure compli- 
ance, which involves detailed technical and legal procedures. 
In addition, the more comprehensive the regulation and the 
more extensive the inspection, the greater the staffing costs. i3 

We must ask if scarce public funds are best spent in build- 
ing up an endless regulatory system, given that every dollar 



The Regulatory Dilemma 67 



spent on a regulatory system cannot simultaneously be devot- 
ed to community-based programs and service delivery. 

Technical Problems 

Regulation is most effective as objective measurement of pro- 
cesses and structures. In practice, however, not everything can 
be so measured. Some important indicators of quality of care 
tend to be very subjective; and that which is not quantifiable 
will often be ignored in a regulatory system: if it can't be mea- 
sured, it can't be enforced. 

If some elements of a system are regulated and controlled, 
operators will tend to cut corners on the unregulated aspects, 
where there is less or no scrutiny. For example, one can regu- 
late nutrition relating to a minimum daily caloric intake, but 
not whether food is tasty or even palatable. Moreover, regula- 
tion depends on extensive record-keeping to document com- 
pliance, reinforced by a combination of good will and occa- 
sional inspections. Yet the Commission has been repeatedly 
told by residents of boarding homes that food standards — ^to 
continue the example — are met when inspectors are present, 
but ignored at other times. i'^ One can attempt through regula- 
tion to ensure food meets nutritional standards, is safe and 
free of dangerous ingredients, though even this is operational- 
ly difficult. Beyond that, however, meaningful consumer satis- 
faction is likely to be measurable only on a subjective basis. ^5 

As a result, standards for quality often tend to have the 
effect of guidelines rather than legal requirements. 

Staffing/Bureaucratic Problems 

Professional inspectors make informed judgments based on 
their training and knowledge. Those exercising professional 
discretion also understand that strict enforcement through a 
legal process tends to be slow, while an informal approach 
can often clear up matters quickly. Thus they tend to favour 
conciliation and reject an adversarial stance in an attempt to 



14 See Donna M. Woolcott, 
Nutritional Value and Quali- 
ty of Food Served in Contract- 
ed Second-Level Lodging 
Homes in the Regional 
Municipality ofHamilton- 
Wentworth, University of 
Guelph, January 1992, p. 29. 

None of this information is 
particularly new: the Com- 
mission has examined experi- 
ences in other areas — from 
child care to consumer pur- 
chases of funerals and trav- 
el — subject to the operational 
dilemmas of regulation. The 
travel industry is perhaps the 
closest analogy, as purchasers 
obtain a package of accom- 
modation, meals, and certain 
services. Experience in the 
travel industry supports the 
view that in certain areas (for 
example, quality assurance), 
there is little that can be done 
from a regulatory perspective. 

15 The Commission is aware of 
a study done in 1988 by a 
dietetic intern involving a 
two-week assessment of the 
nutritional value and quality 
of foods served in a non- 
representative sample of 

second-level lodging homes 
in Hamilton. The student 
found that five of six homes 
offered milk with every meal, 
but four of these used skim 
milk powder "which was not 
accepted by most of the resi- 
dents" and one home "was 
observed to over-dilute the 
skim milk." (Memo from 
Medical Officer of Health to 
Chairman and Members, 
Health and Social Services 
Committee, Regional Munici- 
pality of Hamilton-Went- 
worth, June 2, 1988.) 
See also Woolcott, op.cit. 



68 Where You Live Can Make You Vulnerable 



16 Another aspect of the prob- 
lem is the reliance on a 
quasi-criminal prosecutorial 
model of enforcement. This 
depends on the ability to col- 
lect suitable evidence and the 
will to prosecute, and 
requires a high standard of 
proof. 



build good working relationships with operators. The hope is 
that self-regulation and ethical behaviour will exist even when 
no inspector is present. Many inspectors consider themselves 
educational and training consultants and resource persons for 
operators, who are well disposed but may be ill equipped. 
They do not want to be policemen. 

Inspectors may also identify with operators more than with 
the residents for reasons of economic class, social back- 
ground, or professional status. Operators and inspectors 
develop a permanent working relationship; residents come 
and go. Moreover, the supports and protection promised to 
residents through a regulatory system may not materialize 
because of enforcement problems, lack of political will, or 
local political priorities. 

The public interest may also be sacrificed, not necessarily 
by conscious collusion but through the gradual development 
of a community of interest among the permanent players. The 
professionals — the suppliers of accommodation and care and 
the inspectors — are more disposed to maintain congenial rela- 
tionships with one another than to satisfy the consumer. The 
problem is exacerbated when the consumers tend to be par- 
ticularly vulnerable, as is the case with rest-home populations. 

Collegial relationships among the permanent players lead 
to a reluctance to impose legal sanctions. Informal persuasion, 
while strongly commended as a first approach, can be effec- 
tive only when backed up by the threat of more stringent 
measures if necessary. 



Sanctions and Penalties 

In many regulatory systems, sanctions are not imposed, even 
when standards are not met, at least in part because of the 
difficulties of satisfying legal due-process requirements. ^^ 
Political ambivalence regarding the needs of vulnerable per- 
sons is widespread, as is the fear of imposing inordinate cost 
burdens on operators and/or dehousing vulnerable residents. 
An additional problem is the lack of a range of sanctions. 



The Regulatory Dilemma 69 



For example, licensing often permits only extreme penalties — 
suspension or revocation. A by-law prosecution may result in 
the imposition of a fine. A small fine is merely a nuisance; a 
large fine will be passed on to residents in the form of fewer 
or lower-quality services and/or higher prices, or the operator will 
close down. 

With a shortage of housing and a lack of alternative accommo- 
dation for vulnerable residents, the threat of penalties — even of 
closing a residence — is unlikely to have teeth. The regulators 
need the housing as much as or more than those being regulated 
need the residents. In some cases, like that of Cedar Glen, it is not 
the inspectors but the operators who hold the real power. 

The nursing-home experience in Ontario provides corrobora- 
tion. The 1990 Annual Report of the provincial auditor concluded 
that "the procedures used ... to monitor the quality of care in 
nursing homes required significant improvement. "^^ 

The Commission has considered the two-stage compliance 
management program used in nursing homes: i^ at the first stage, 
compliance advisers attempt to "focus on the resolution of defi- 
ciencies by consultation rather than on prosecution. "i9 When con- 
sultation, education, and collaboration are not effective, enforce- 
ment officers are called in for further monitoring, and investiga- 
tion if necessary. 

The number of charges laid under the Nursing Homes Act has 
dropped from 497 in 1984, to twelve in 1988, to zero in 1989. In 
1989, there were no homes charged, no charges laid, and no con- 
victions under the Nursing Homes Act.^^ In addition, the provincial 
auditor has observed that over 40 percent of homes did not 
receive any visits during the year other than the annual licence- 
renewal visit. The report notes that these changes "can, in part, be 
explained by the new Compliance Management approach.... 
Additionally, homes have not been properly transferred into the 
Enforcement section. Moreover, the results of judicial decisions 
have shown that violations of many provisions . . . cannot be suc- 
cessfully prosecuted."^! 



17 Office of the Provincial Audi- 
tor, 1990 Annual Report, p. 39. 
The Commission cannot com- 
ment on the efficacy of any 
improved compliance mecha- 
nisms introduced recently or 
proposed for introduction. 

18 This was implemented in 
early 1988 and officially 
began in April 1990. 

19 Auditor's Report, p. 145. 

20 Auditor's Report, p. 144-45. 

21 Auditor's Report, p. 143, 145. 



70 Where You Live Can Make You Vulnerable 



^^ riKho.sidsysu-..M..,i.s Current Practice in Ontario 

cusNcd ill Ic-nxlli ill < li.ipicr 7 
^'.Thr ciiy oi lomnK. Ik.s .,|,^.,.^. -^ ,^,, spccinc Ontario legislation regulating rest homes, 

icicMlly |);is,sc(l ^i |)cim)I);iI tn <-> c^ 

(lire by hiw, bill li;il)ii;ii mi only l;iws ol gencnil ;i[)plication, such as public-health and 

li/,r,sr,.ninuiswitl.|,...ii.,,,;.i (j.^. ,s;,rc-iy legislation. Some local governments have assumed 

iiig opcnilors. I he Kcp.ioii <>! ^ 

oii.iwj Ciirlcion (Icvclopcd .1 rcsponsihility for local rest homes in an attempt to ensure 

by l.iw, bui h.is tu-kl oil minimum slanclarcls. (These primarily affect rest homes at the 

(•ti.iiliiix II in llu" iihsriKc ol 

|)n)viiui;il fii;ibling \v}i,\s\a lower end of the market.) 

"*'" Some municipalities enact local by-laws, often reluctantly, 

-! I U.iscd i.n ihc mosi icicni li^ bc( .iiise llic pioviiuf "is not doing its proper job." Another 

m.s|m,vi.lrch..u,sbytlK- .,,>,>,(,;„ h is nu.ic- limilcd in scope: standards are set by con- 

Minislry ol Miinu i|);il Allairs. ^ 

(Miinit ip.il Aiiiilysis iiiul H-icl between a municipality and individual operators receiv- 

i<(tiicv..lSv.sicMn, dat.i base, domiciliary hostel funding under the General Welfare 

|iil\ (I. I'>')().) r. / r. J 

Assistcntcc Act (dWAA)/^ and per diem payments are depen- 
di-nl on t ompli.iiux' wilh ihose standards. In most communi- 
ties, however, enlorcemenl is difficult, under cither the by-law 
or conliaci approach. There arc limited local resources, partic- 
ulaily as social assistaiux" costs consume an increasing share 
of local attention anti nuMiies. 

We shall briefly look at the approaches of four communi- 
ties to the regulation a\ rest home accommodation: two 
(ll.miilton a\k\ Wintlsor) have comprehensive rest-home by- 
laws and negotiate hostel contracts. The other two (Ottawa- 
C'arleton and Metro Toninto. through Habitat Services) utilize 
contracts. ^^ Other municipalities follow the general approach 
u.scd b\ one o^ these four or rely t)nly on general provincial 
and municipal powers. 



THE BY-LAW APPROACH 

I'hc number ^>\ municipalities with local by-laws has roughly 
diHiiilcd liom a war ago. to approximately sixty.-' Some acted 
aftiM particularly intolerable events in unregulated accommo- 
dation gaineil public- and media attention; others acted to pre- 



The Regulatory Dilemma 71 



vent such situations from occurring. Some by-laws have been 
developed with substantial operator input; all focus on meet- 
ing needs, delivering quality care, and protecting vulnerable 
persons. 

Coverage, content, and enforcement vary widely. Some by- 
laws regulate physical standards — such as lighting levels in 
rooms, bedroom space, dining-room size, and resident/toilet 
ratios. Others also regulate care — such as nutritional sufficien- 
cy of meals, procedures for the administration of medications, 
and minimum resident/staff ratios. 

All municipal by-laws are passed pursuant to section 
208(61) of the Ontario Municipal Act. It is generally agreed 
that the Municipal Act permits licensing and regulation of 
physical standards and sanitary conditions; however, munici- 
pal by-laws that regulate care standards would likely not be 
upheld by the courts. ^^ 

Hamilton and Windsor have systems of comprehensive 
regulation by municipal by-laws covering all rest-home 
accommodation.^*' The two by-laws are broadly the same; 
however, Hamilton sets an upper limit of twenty-four beds in 
any residence eligible for a hostel contract. This "cottage- 
industry" model has been criticized by operators as inefficient 
and precluding economies of scale. Windsor, at the other 
extreme, has several massive rest homes. The largest has 
approximately 450 beds, and six homes have more than 100 
beds; there are few small operations in the for-profit sector. 

The cities of Etobicoke and of Toronto also have municipal 
personal-care by-laws. Toronto's by-law (passed in July 1991) 
is more modest than Hamilton's or Windsor's. 

It is evident to this Commission that if regulation by com- 
prehensive municipal by-law is to continue, local communities 
must be given an explicit legal basis for such by-laws. Current 
approaches, largely based on compliance by acquiescence, 
lack a foundation sufficient for municipal action. 



25 The one exception, which is 
clearly legal, is the local 
Windsor by-law, passed after 
1982 provincial enabling leg- 
islation. Operators in Windsor 
have observed, howexer, that 
the standards specified in the 
by-law are vague and subjec- 
tive (because of the difficul- 
ties assessing non-measurable 
standards discu.ssed earlier). 
As a result, they question 
whether the content of the 
by-law would be upheld, 
though the legal authority for 
the by-law itself would 
remain unchallenged. 

26 Windsor's by-law, dating from 
1978 (and formalizing a by- 
law from 1970), generally 
covered personal-care mat- 
ters; however, it allowed con- 
siderable flexibility for the 
inspecting officials, such as 
the Medical Officer of Health, 
Windsor's by-law currently 
covers twent)' rest homes 
with approximately 1,550 resi- 
dents, of whom 560 are subsi- 
dized under the hostel provi- 
sions of GWA. 

Hamilton's municipal by- 
law, passed in 1980, regulates 
in detail not only physical 
structures but also standards 
of personal care. The by-law 
was de\cloped after a strong 
recommendation from the 
chief coroner of Ontario, who 
had conducted an inquest 
into one of three deaths in 
the city's lodging homes in 
1977. When the Hamilton by- 
law was passed, the city was 
regulating forty-two houses, 
accommodating approximate- 
ly 600 persons. Today the city 
licenses and regulates seven- 
ty-three facilities with a total 
capacity of 1,576. 



72 Where You Live Can Make You Vulnerable 



27 Hamilton and Windsor 
require compliance with the 
by-law as a condition of 
receiving a hostel contract, 
i.e., compliance is, in effect, a 
condition of the contract. 

28 Mental Health Program Ser- 
vices of Metropolitan Toronto 
(MHPS) is the legal name of 
the non-profit agency that 
administers Habitat Services. 
MHPS has a dual mandate, 
the operation of Habitat Ser- 
vices in Metro Toronto and 
the development of a co-ordi- 
nated system for mental- 
health services in the City of 
Toronto. We deal primarily 
with the former role. 

29 Habitat arose out of the 
shared concerns of Toronto 
and Metro, three provincial 
ministries (MoH, MCSS, and 
Housing), and the Supportive 
Housing Coalition. Habitat is 
the first involvement of Metro 
Toronto in subsidizing oper- 
ating costs for housing former 
psychiatric patients. All the 
participants were involved in 
housing people having psy- 
chiatric histories, although the 
particular focus was on the 
Parkdale area of Toronto. 
Those discharged from 
Queen Street Mental Health 
Centre and, earlier, from 
Lakeshore Psychiatric Hospi- 
tal have been drawn to Park- 
dale because of its proximity 
to the former institution and 
its traditional availability of 
low-cost, low-standard 
accommodation. 



THE CONTRACT APPROACH 

Some municipalities regulate through contract rather than 
attempting to enforce a by-law without provincial enabling 
legislation. Ottawa currently relies on contracts under the hos- 
tel provisions of the GWA Regulations. The standards required 
are roughly comparable to those in the Hamilton and Windsor 
by-laws; however, rest-home operator participation in the hos- 
tel system — and, hence, compliance with the conditions in its 
contract — is voluntary. Those rest homes that do not hold 
hostel contracts are not subject to the contract standards. 27 

Habitat Services 

Habitat Services, 28 founded in 1986, is a community-based 
non-profit agency in Metropolitan Toronto that negotiates and 
enforces contracts with individual operators. Funds are pro- 
vided in part under the hostel provisions of GWA. 29 The con- 
tract specifies physical standards, which must be met for an 
entire house if even only one resident is funded by Habitat, 
and personal-care requirements for Habitat-covered residents. 

A life-skills or social/recreational program in homes under 
contract is contracted to Community Occupational Therapy 
Associates (COTA), a non-profit agency. It is central to the 
Habitat program that the housing provider (Habitat) be dis- 
tinct from the service provider (COTA). 

As of January 1991, Habitat had contracts covering 6lO 
beds in thirty-two boarding homes, all but three operating for 
profit. (Habitat projected that 950 beds would be covered in 
1993-94.) For a resident to be subsidized. Habitat must do the 
placement; as of January 1991, there were sixty-one identified 
agencies from whom referrals were accepted. Residents 
express concerns about the quality of Habitat housing but 
acknowledge that physical and personal-care standards are 
substantially better than in non-Habitat housing. 

Because it is funded through the Ministry of Health (MoH), 



The Regulatory Dilemma 73 



Habitat is restricted to people with psychiatric histories. Those 
vulnerable adults excluded from the program, such as those 
with developmental disabilities, inevitably obtain only poor- 
quality rest-home accommodation. ^o They have only the mod- 
est protection of the local personal-care by-laws in the cities 
of Toronto and Etobicoke, and no local protection in the rest 
of Metro. 31 

Not all Ontario municipalities participate in the domiciliary- 
hostel program under GWA. One municipality has withdrawn 
recently, thereby forgoing its power to regulate through con- 
tract; others are contemplating such moves and have threat- 
ened withdrawal. 



30 Housing outside the Habitat 
program is a source of low- 
quality accommodation in 
Metropolitan Toronto to an 
extremely vulnerable popula- 
tion, some of whom might be 
homeless were higher stan- 
dards imposed across the 
board. The potential loss of 
housing for this most disad- 
vantaged group is a very real 
operational problem, particu- 
larly in the centre of Toronto. 

31 If applicants are diagnosed as 
having both a psychiatric dis- 
ability and a developmental 
disability, they are then eligi- 
ble for Habitat. 



Towards a New Approach 



The arguments regarding regulation are wide ranging, yet the 
Commission found only a relatively narrow band of feasible 
options. 

The option of retaining the status quo was rejected in the 
Discussion Paper, for it was the failure of a non-regulatory 
approach that led to the original need for this Commission. 
Nothing in the interim has emerged to change our minds. The 
case for government activity is based not on ideology but on 
empirical evidence: neglect and inadequate protection lead, in 
some cases, to abuse, exploitation, and death. The Commis- 
sion has seen enough evidence, both hard and anecdotal, to 
be satisfied that there is a significant problem. Government 
has a responsibility — and an opportunity — to offer protection 
to vulnerable adults. 

We are also reluctant to recommend comprehensive regu- 
lation because of the many disadvantages we have identified 
as inherent in the approach. 

Comprehensive regulation would create a system of low- 
level or first-stage nursing homes. Some have argued that this 
is desirable or necessary, given the population demographics 



74 Where You Live Can Make You Vulnerable 



32 Without provincial enabling 
legislation such by-laws may 
be ultra vires. 

33 Contracts can be signed 
between residents and opera- 
tors, or between municipali- 
ties and operators. 

34 At the same time we note the 
potential dehousing effect of 
higher standards set in by- 
laws. Those who remain 
housed will live in better con- 
ditions, but others (in particu- 
lar those on social assistance) 
will lose accommodation, as 
some operators cannot or will 
not meet higher standards. 

35 The standards obtained 
through contracts depend on 
the bargaining power of the 
parties: this power varies with 
the supply of housing in the 
community and the financial 
resources at the disposal of 
the consumer (or the munici- 
pality on behalf of residents 
funded through the domicil- 
iary-hostel system). The stan- 
dards set through by-laws 
also depend on relative bar- 
gaining power, mediated by 
the judgments of local coun- 
cils about the resources of 
potential consumers (in par- 
ticular those on social assis- 
tance), the ability of operators 
to provide a particular level 
of accommodation and care 
in exchange for those 
resources, and other political 
considerations. 



and the shortage of licensed nursing-home beds. Others argue 
against the creation of more inflexible institutions, with all the 
problems associated with such inflexibility, and stress instead 
the need for portable and in-home services. We have already 
indicated our support for the latter position. 

Data from the provincial auditor provides a powerful argu- 
ment against comprehensive regulation of rest homes in 
Ontario. As well, the many reservations about this approach 
to protecting vulnerable adults seem to be validated by the 
experience of the nursing-home industry. 

The Commission cannot endorse comprehensive regulation 
of rest homes on the nursing-home model. 



CONTRACTS OR BY-LAWS 

Some municipalities have enacted by-laws that set standards 
for the physical environment of rest homes that may be above 
that permitted by provincial legislation. Some by-laws also 
cover care in rest homes, an area in which there are no 
provincial standards. 32 Some presentations before the Com- 
mission have argued that municipalities should have the 
authority to set standards of care in local rest homes; others 
have maintained that a contractual approach would be more 
effective. 33 

In the Commission's view, there are three crucial factors in 
comparing contracts and by-laws: coverage, empowerment, 
and flexibility. 

One of the major strengths of by-laws is that no rest home 
is exempt from the higher standards;34 as such, the approach 
may be particularly effective in raising standards for those on 
OAS or social assistance who have neither the resources nor 
bargaining power to obtain higher standards on their own. 
(The standards obtained through contracts, as we have noted, 
apply only to those holding contracts. )35 

The by-law approach is more likely to exclude residents 



The Regulatory Dilemma 75 

from the decision-making process; by-laws give municipal 36 These licences, when given, 
,..,., , ., .,. , . , . may create a property right. 

authorities the right and responsibihty to determine what is 

acceptable. Enforcement is also the responsibility of municipal 
officials. Contracts (and leases) between residents and opera- 
tors have a greater ability to achieve our central goal of resi- 
dent empowerment. They provide residents with direct 
involvement in determining standards and the right to seek 
operators' compliance. 

Municipal rest-home by-laws are usually combined with 
municipal licensing. 36 Failure to meet standards may lead to 
prosecutions under the by-law; a persistent failure to meet 
standards (often evidenced by by-law convictions) may lead 
to the ultimate sanction, removal of the licence, i.e., the legal 
permission to operate a rest home. By-laws are generally 
enforced by prosecutions in courts; these may result in con- 
victions, which in themselves may be a deterrent, and the 
imposition of fines. 

Prosecutions, convictions, and impositions of fines may not 
be the most appropriate response to a failure to meet stan- 
dards. Moreover, they may not be a deterrent: penalties may 
be minimal if the offence is considered to be not serious; and 
multiple offences may be needed before substantial fines are 
levied. The response time may be long due to scheduling and 
backlogs in the courts. 

Contracts permit considerable creativity. Parties can agree 
in advance on their rights and obligations. The terms of the 
contract and the common law dictate the effect of the actions 
of the parties, the consequences, and the remedies. A substan- 
tial breach or default in performance may result in termina- 
tion. 

Thus we believe that contracts can provide for more 
appropriate consequences and penalties in the context of the 
rest home. This is particularly so in domiciliary-hostel agree- 
ments, which can provide for temporary or permanent loss of 
funding in response to a failure to meet standards and can be 
more responsive to a history of poor compliance. Other con- 



76 Where You Live Can Make You Vulnerable 



37 This approach is not possible 
with a lease, in which case 
the relevant provisions of the 
LTA would apply. 

38 Again, these conditions do 
not apply in case of a lease. 
When a government, in this 
case a municipality, is party 
to a contract, there may be 
greater due-process require- 
ments than in contracts 
between private parties. For 
this reason, some have sug- 
gested that a community 
agency may be in a better 
position to make the 
domiciliary-hostel agree- 
ments. It could then more 
easily be specified that con- 
tracts, unlike licences, need 
no hearing to cancel or sus- 
pend them, and that they can 
be cancelled without cause. 



ditions and outcomes can be specified, as well, including 
intervention for the welfare of residents: a reduction in the 
number of domiciliary-hostel residents permitted in a rest 
home; emergency care or supervision, or the provision of 
necessities with the costs chargeable to the operators. 

Standards in by-laws must be precisely worded to sustain a 
conviction and the standard of proof required is the highest 
possible: beyond a reasonable doubt. Discretionary standards 
are more easily provided for in contracts for services. Objec- 
tive measurements or assessments of quality of care required 
in a by-law approach can be replaced by more subjective 
assessments of consumer satisfaction. 3^ 

Determinations can be made by individual consumers, or 
by an agency (including the municipality) on behalf of and 
after consultation with residents. The residents or municipali- 
ties can refuse to pay for services below the quality contracted 
for or can refuse to continue purchasing such services. For 
example the Habitat contract specifies that "the parties specifi- 
cally agree that the determination of [Habitat Services], in its 
absolute discretion, as to whether or not any of the Standards 
are met shall be final and binding on the parties" (section l6). 

The authority to terminate a rest-home licence is one way 
to attempt to ensure compliance with standards. However, 
licences can be difficult to cancel; and generally, they are not 
cancelled for minor infractions. The process can be slow, 
requiring municipal hearings and substantial due process. 

Contracts can avoid due-process requirements that are as 
onerous as those that must be contained in by-laws; these 
requirements may be negotiated by the parties to the 
contract. 38 

It is the Commission's view that consumers should deter- 
mine what standards are acceptable (above minimum safety 
and health levels) through contractual negotiations with rest- 
home operators. (These minima will be discussed in detail in 
Part III.) 



The Regulatory Dilemma 77 



RECOMMENDATION lOr That standards (physical and 
care) above the minima recommended by the Commission 
be achieved through contracts with operators. 

Part I of this Report has set out the frameworl<: within which 
we approach our task. We have presented a formal definition 
of a rest home, distinguishing it from other settings, such as 
nursing homes. We have also drawn three conclusions that 
will be of considerable importance throughout this Report: 

1. The rest home should be viewed as residents' perma- 
nent accommodation. It is not a new type of institution or 
a place of temporary sojourn. 

2. Comprehensive regulation on the nursing-home model 
is not the best way to achieve our twin goals of facilitating 
empowerment and offering protection to vulnerable adults. 

3. Above specified minimum safety and health levels, qual- 
ity for physical and care standards can best be attained 
through voluntary contracts, not through comprehensive 
by-laws. 

Part II of the Report examines the implications of these find- 
ings, focusing particularly on the key issues of coverage under 
the Landlord and Tenant Act and rent control. Part III pre- 
sents our preferred approach, which includes regulation for 
the attainment of certain minimum standards. As well, we 
shall present a variety of measures that, we believe, will not 
only promote empowerment and protection of vulnerable 
adults, but will do so at lower public cost than comprehensive 
regulation, with greater accountability for public spending, 
and less interference in individual decision-making and pri- 
vate commerce. 



78 Where You Live Can Make You Vulnerable 



1 A personal-care facility may 
have all beds funded, all 
beds on a private-pay basis, 
or a mix. 

2 Where a residence has some 
funded and some unfunded 
accommodation, there may 
be a problem with cross- 
subsidization. For example, 
the higher standards in a 
funded bed may be met by 
using funds received for the 
private-pay bed. 



APPENDIX: 

Experience in Tfiree Provinces 

In order to provide a working context for our discussion, we 
summarize here the way three other provinces treat rest- 
home-type accommodation, i.e., residences in which room, 
board, and minimal levels of care and/or supervision are pro- 
vided by owner/operators. All three provinces have chosen 
regulation as the means by which standards are set and 
enforced. 



BRITISH COLUMBIA 



Known as "personal-care facilities" in B.C., rest homes are, by 
and large, operated on a for-profit basis. Enforcement of rest- 
home standards of physical accommodation and care is a 
provincial responsibility. 

The province funds some accommodation in personal-care 
facilities through a per diem set by the government (currently 
85 percent of OAS/GIS payments). Residents not in receipt of 
OAS/GIS may undergo a means test to qualify for subsidy. For 
other personal-care accommodation, no provincial funding is 
available; residents may pay privately. ^ 

Provincially funded accommodation is subject to higher 
program and quality-assurance standards.' As well, the 
province decides who is eligible for funded personal-care 
accommodation on the basis of individual assessments of care 
needs; then the province controls admission to such beds as 
they become available. Operators set the charge for private- 
pay beds and decide who is admitted. 

Personal-care accommodation has been part of a continu- 
um of provincially funded residential care in British Columbia. 
Recently, however, the government has started to phase out 



Experience in Tliree Provinces 79 



funded personal-care beds. Facilities must either upgrade to 
intermediate-care accommodation or become private-pay. 
Eventually, all rest-home-type accommodation will be avail- 
able only on a private-pay basis. 

This plan may have several possible consequences: persons 
with low incomes and minimal care needs may be unable to 
find accommodation in a care facility, irrespective of the avail- 
ability of care provided in their own homes; private-pay resi- 
dences for low-income persons may be withdrawn from the 
housing market or may continue to operate at standards com- 
mensurate with low-income residents' ability to pay. 



3 Most frail elderly persons in 
facilities reside in the next 
level of regulated facilities, 
known as "personal-care 
homes," equivalent to 
Ontario's nursing homes. 



MANITOBA 



Manitoba also regulates all rest-home-type residences. Called 
"residential-care facilities," most are operated on a for-profit 
basis. The resident population consists primarily of persons 
with developmental disabilities (68 percent); other residents 
are frail elderly persons (15 percent) and persons with psychi- 
atric histories (l6 percent ).-"* 

Each facility is licensed to provide one or more of five lev- 
els of care. Regulated standards cover physical conditions, lev- 
els of supervision, administration of medications, nutrition, 
and personal rights, but do not address personal-care or medi- 
cal services. The province is responsible for enforcement of 
standards. 

To be admitted to residential-care facilities, individuals 
must have their care needs assessed by the provincially man- 
dated Regional Supervising Agency. Admission is restricted to 
persons who are ambulatory and capable of self-sufficient 
action in case of emergency. 

The per diem rate for elderly persons is not provincially 
regulated. Rates vary from $600 to $900 a month. Seventy-five 
percent of the residents depend entirely on OAS/GIS and a 
provincial income supplement of up to $33 a month. 



80 Where You Live Can Make You Vulnerable 



4 There is one rate for each of por persons with developmental disabilities or psychiatric 

the five levels of care. 

histories, the province determines per diem payments on an 

assessment of individual care needs. "* Rates range from $479 

to $703 a month. For residents on Income Security (social 

assistance), the province pays the rates and personal and 

clothing allowances. 

Both funded and private-pay admissions are controlled by 

the province, which attempts to ensure that only persons 

whose needs can be met in the rest homes are admitted. 



NOVA SCOTIA 

The Nova Scotia government regulates and inspects rest- 
home-type accommodation. Known as "residential-care facili- 
ties," these are almost all operated on a for-profit basis and 
primarily serve elderly persons and persons with psychiatric 
histories. 

Residents who require assistance are needs-tested for 
income and assets. Municipalities provide the subsidies for 
per diem payments to operators. 

The province sets the per diem rate for subsidized resi- 
dents (at cost plus 10 percent), currently $25-$30. Rates are 
determined by regional negotiation among the province, 
municipalities in the region, and local operators. The province 
assesses the care needs of applicants requiring financial assis- 
tance and controls admissions of such applicants to the facili- 
ties. 

Approximately 50 percent of residents are private-pay. 
These residents may pay a higher per diem than subsidized 
residents, but there is an expectation that the extra charges 
relate to extra services. 

The residential-care facilities precede nursing homes and 
homes for the aged on the residential-care continuum. All are 
governed by the same legislation; however, the standards for 
some types of care differ. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 



PART II 



The Rest Home 
As Home 



82 The Rest Home As Home 



One of the important conclusions in Part I of this Report was 
that rest homes should be viewed as residents' permanent 
accommodation rather than as institutions or places of tempo- 
rary sojourn. We also observed that the rest home differs from 
conventional private housing in that it provides accommoda- 
tion with care. 

Residents of rest homes are, in general, vulnerable or 
potentially so. Social intervention has therefore been deemed 
the appropriate means to meet the policy goals of protection 
and empowerment for this population. We have rejected com- 
prehensive regulation on the nursing-home model, because 
such an approach is unlikely to meet these twin goals. In Part 
III we shall consider more modest regulation, which attempts 
only to ensure minimum safety standards are satisfied. 

First, however, we approach the crucial questions of cover- 
age of rest homes under the Landlord and Tenant Act {LTA) 
and Bill 121, the proposed Rent Control Act, 1991 {RCA). We 
devote a chapter to each of the major types of accommodation 
setting of interest to this Inquiry. "Life at the Top" examines 
issues of particular relevance to retirement homes for persons 
with high incomes. "Life Near the Bottom" focuses on boarding 
(lodging/rest) homes for those with low incomes, with particu- 
lar attention to the domiciliary-hostel system, funded under the 
General Welfare Assistance Act ( GWAA). 

We describe the quality of life experienced by those at the 
top and at the bottom, and highlight the problems that have 
been presented before us. We assess both the advantages and 
the limitations of coverage under these Acts. If coverage is to 
be recommended, we must indicate how the legislation should 
be amended to provide for the unique environment of the rest 
home, in which care services are provided along with accom- 
modation and meals. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

5 

The Landlord and Tenant 
Act and Rent Contro 



t present, unless specifically exempted, all resi- l This Act will replace the cur- 

dential premises in Ontario are covered by the rent rent regulation legisla-^ 

^ ^ tion, the Residential Rent Reg- 

Landlord and Tenant Act (LTA); and in addition, ulation Act (RRRA). 



A all rental units in residential accommodation will 
be covered by Bill 121, the Rent Control Act, 
1991 (RCA).^ The status of rest-home accommo- 
dation under these Acts is uncertain: operators maintain that 
rest homes are currently exempted from the LTA and rent reg- 
ulation; some residents and their advocates have held the 
opposite. Attempts to resolve this debate have generated a 
tremendous amount of argument before the Commission and 
in other fora. Thus, confronting this central issue will directly 
influence much that follows in this Report. 

As the LTA does not protect tenants against eviction for 
economic reasons and rent control does not protect tenants 
against arbitrary eviction, they can be effective only in tan- 
dem. Therefore, we will consider them together. 

Owners and operators are opposed to coverage under the 
LTA and rent control; community and advocacy groups are 
generally in favour, although opinions differ on whether to 
include group and treatment homes. Residents of retirement 
homes have mixed views; residents of boarding homes almost 
unanimously support coverage. 
. Operators argue that coverage would impair their ability to 



83 



84 The Rest Home As Home 



2 Reference Re Residential Ten- 
ancies Act, [1981] 1 S.C.R. 717, 
at p. 718 per Dickson, J.; Re 
Baker et. al. and Hayward 
(1977), 16 O.R. (2nd) 695 
(Ont. C.A.), at p.699 per Wil- 
son, J. A.; Interim Report on 
Landlord and Tenant Law 
Applicable to Residential Ten- 
ancies, Ontario Law Reform 
Commission, 1968, pp. 10-11, 
43-44. 

3 Rent Control: Issues and 
Options, A Consultation Paper 
from the Ministry of Housing, 
Febnjary 1991, p.8. 

4 The LTA also specifies the 
procedure for eviction. The 
landlord must serve the tenant 
with a notice of termination 
with the amount of advance 
notice varying according to 
the grounds for eviction. If the 
tenant does not move out in 
accordance with the notice, 
the landlord must apply to the 
Ontario Court (General Divi- 
sion) for an order to terminate 
the tenancy. There are two 
court appearances, the second 
before a judge, if the tenant 
disputes the application for 
termination. A hearing is held 
and both parties are given an 
opportunity to present their 
cases. 



operate efficient businesses, and would prevent them from 
"discharging" residents they consider inappropriate. (The need 
for speedy discharge is particularly important in settings 
where residents share rooms.) Operators consider that cover- 
age under LTA violates their concept of the rest home as a 
point on the continuum of residential-care facilities. Moreover, 
rent control limits the operators' ability to set prices in 
response to market forces. 

Residents respond that without the LTA and rent control 
they might be subject to arbitrary eviction and excessive rent 
increases that might force them to leave their homes. They 
also note that Part IV of the LTA was enacted to redress the 
imbalance of bargaining power between landlords and ten- 
ants, which historically favoured the former. ^ 

The Ministry of Housing's Green Paper, February 1991, 
stated that the "preferred approach" was for rent control to 
cover the accommodation component of "facilities such as 
unlicensed rest and retirement homes. "^ 



CONTENT OF TH E ACTS 

Part IV of the LTA provides protection to residential tenants, 
specifies the rights and responsibilities of landlords and ten- 
ants, and contains procedures for resolving disputes.'^ 

The LTA provides "security of tenure" for residential ten- 
ants: tenants may remain indefinitely in their rented premises 
subject only to specified grounds for eviction. The "fault" 
grounds for eviction include the following: 



1. the tenant fails to pay or is persistently late in paying the 
rent; 

2. the tenant or guest has damaged the rental unit or its 
environs; carried on an illegal act or business in the rental 
unit or building; substantially interfered with the reason- 



The Landlord and Tenant Act and Rent Control 85 



able enjoyment of the premises by the landlord or other 
tenants; and/or seriously impaired the safety or lawful 
rights of another tenant. 5 

The LTA also stipulates that: 

1. tenants have the right to sublet or assign their apart- 
ments; landlords may reserve the right to consent, but such 
consent must not be unreasonably withheld; 

2. landlords must give twenty-four hours' notice before 
entering tenants' premises (except in an emergency);^ 

3. neither party may change the locks giving entry to the 
rented premises without the consent of the other; 

4. landlords must keep the premises in good repair, fit for 
habitation, and in compliance with health, safety, and 
housing standards; 

5. landlords cannot withhold or interfere with the supply 
of vital services; and 

6. landlords may not substantially interfere with tenants' 
reasonable enjoyment of the premises as a way to force 
tenants to leave or prevent them from asserting their rights 
as tenants. 



5 There are also "no-fault" 
grounds for eviction: for 
example, landlords may 
require the premises for their 
own occupation or that of 
their immediate families, or 
landlords may wish to demol- 
ish the premises. 

6 Entry without notice is also 
permitted if the landlord has 
reserved the right in the tenan- 
cy agreement to show the unit 
at reasonable hours to 
prospective tenants after 
notice of termination of the 
tenancy has been given. 

7 Clause UcXix) of the LTA and 
paragraph 3(l)(e) in the pro- 
posed RCA. The RCA contin- 
ues an exemption of such 
premises from rent regulation 
under the RRRA [paragraph 4 
(IXe)]. ■ 



The proposed RCA strengthens the existing rent-regulation 
provisions and controls the timing, procedures for, and 
amounts of, rent increases. 



CURRENT STATUS 



The LTA and the proposed RCA exempt from coverage "accom- 
modation occupied by a person for penal, correctional, rehabili- 
tative or therapeutic purposes or for the purpose of receiving 
care. "7 

Most rest homes claim exemption from the LTA and rent 
regulation on the grounds that they are "accommodation 



86 The Rest Home As Home 



8 Accommodation occupied "for 
rehabilitative or therapeutic 
purposes" is also not defined 
in the legislation or in relevant 
case law. 

9 Rent Review Hearings Board 
Decision in Tenants of the 
Grenadier v. We-Care Retire- 
ment Homes of Canada Limit- 
ed and 582958 Ontario Limit- 
ed, dated November 25, 1991. 
The decision is being 
appealed to Divisional Court. 

10 The purchase of care services 
was not required as a condi- 
tion of residing in the rental 
unit. Paragraphs 200, 213, 220. 

11 Paragraphs 199 and 213. Meals 
were found to be subject to 
rent regulation as separate 
charges for meals were like 
separate charges for parking 
on a per space basis (para- 
graph 2l6). 

12 Paragraphs 200 and 204. 

13 Rent Review Hearings Board 
Decision in Diversicare VI 
Limited Partnership v. All Ten- 
ants of 312-314 Oxford 
Street, London, Ontario, dated 
July 27, 1988. This decision 
was upheld by Divisional 
Court of the Ontario Courts of 
Justice, in an unreported deci- 
sion released October 27, 
1989. 



occupied by a person for the purpose of receiving care." 
Much of the ambiguity about coverage of rest homes arises 
because "care" is not defined, and the meaning of "for the 
purpose of receiving care" is unclear.^ 

Two recent cases before the Rent Review Hearings Board 
have decided that the particular retirement homes are subject 
to rent regulation; however, as the decisions are based on the 
facts of each case, it may not follow that all rest homes in 
Ontario are covered. One Board found that the accommoda- 
tion portion of a Toronto retirement home's charges was sub- 
ject to rent regulation, but the charges for care services pro- 
vided by the operator were not.9 The Board noted that in this 
retirement home, the care services were contracted for on an 
optional basis. ^o Thus, there was a "separation of care costs 
from the [cost of] services normally included in the unit rent 
definition. "11 Another significant aspect of this case was the 
"independence" of the residents and "their freedom of access 
and privacy (their own key and a locked-door situation). "12 In 
London, a Rent Review Hearing Board ordered that a retire- 
ment home be covered, apparently because most residents 
did not use the care services offered. i3 

The LTA and the proposed RCA also exempt from cover- 
age all accommodation "subject to" fourteen enumerated 
statutes dealing with health and social services. This exemp- 
tion is widely claimed by premises — such as licensed nursing 
homes and municipal homes for the aged — that receive gov- 
ernment funding. Some group homes and non-profit housing 
providers funded by provincial government ministries also 
claim this exemption, but it is unclear what the criteria are for 
deciding that particular premises are "subject to" the listed 
statutes. 

In the only case in this area known to the Commission, a 
court found that a non-profit housing provider that contracted 
with and received funding from the Ministry of Community 
and Social Services (MCSS) to provide accommodation, meals. 



The Landlord and Tenant Act and Rent Control 87 



and counselling to socially disadvantaged persons was "subject 
to" the Ministry of Community and Social Services Act, and 
thus exempt from the LTA. The court stated that the exemp- 
tion is intended to cover accommodation that is "under the 
auspices" of provincial government agencies. i'* 

The Commission holds as a fundamental principle that 
when the law deals with a person's non-transient housing 
there must be certainty whether that housing is subject to the 
LTA and rent control. We recommend that both the LTA and 
the proposed RCA be amended to ensure such certainty: 



lA R. V. File, an unreported deci- 
sion of His Honour Judge 
Babe, in Provincial Court 
(Criminal Division) at Toron- 
to on May 24, 1987. 



RECOMMENDATION 11: That the government of Ontario 
accept as a principle the desirability of certainty concerning 
coverage of all residential accommodation for vulnerable 
adults under the Landlord and Tenant Act and the pro- 
posed Rent Control Act, 1991 and that these statutes be 
amended to this effect. 



COVERAGE OF REST HOMES UNDER THE 
LTA AND THE PROPOSED RCA 



Many vulnerable persons require care and support in order to 
live in the community. This need should not, however, deny 
them the rights of other persons in the community. Indeed, 
their very vulnerability argues in favour of LTA and RCA pro- 
tection. The receipt of care does not diminish the fact of resi- 
dence. Care, as we have observed, complements accommoda- 
tion, but should not supersede the rights and responsibilities 
that come with residential accommodation. 

As rest homes are permanent residences, the Commission 
sees no reason to treat rest-home residents differently from 
residential tenants in the context of landlord-tenani relations. 



88 The Rest Home As Home 



15 The type and intensity of ser- 
vices provided to the resi- 
dents in such housing 
varies — from assistance with 
some of the instrumental 
activities of living, such as 
shopping and banking, to 
assistance with the basic activ- 
ities of daily living, such as 
eating, to various forms of 
intensive rehabilitation and 
treatment. 



Rest Homes and the Landlord 
and Tenant Act 

The substantive rights that LTA conveys are of great impor- 
tance to vulnerable residents, as the power imbalance in 
favour of operators may be substantial. In fact, many of the 
most unacceptable operator behaviours repeatedly identified 
by residents — denying access to the premises to visitors, ser- 
vice providers, and family members; locking residents out of 
the home for periods of time as a punishment or because 
their presence was inconvenient to the operators; and disre- 
garding the residents' privacy — will be immediately and clear- 
ly resolved with LTA coverage. 

Residents of rest homes must have all the rights given to 
residential tenants; the importance of ensuring that this goal 
is achieved can scarcely be overstated. LTA is the most effec- 
tive and normalizing way to accomplish this. 



RECOMMENDATION 12: That rest homes be subject to 
Part IV of the Landlord and Tenant Act. 

We recommend the "care" grounds for exemption be elimi- 
nated from the LTA, as the residents' receipt of care from 
owners/operators is irrelevant to a landlord-tenant relation- 
ship. 

RECOMMENDATION 13: That the Landlord and Tenant 
Act be amended to delete the phrase "or for the purposes 
of receiving care" from clause l(c)(ix). 



There is a wide array of non-profit supportive housing and 
group homes available to vulnerable persons, i'' much of 
which will fall within the Commission's definition of a rest 
home. If not otherwise exempt, such accommodation would 



The Landlord and Tenant Act and Rent Control 89 



be subject to the LTA if the "for the purposes of receiving 
care" exemption is deleted from the LTA. (We discuss grounds 
for exemption later in this chapter.) 



EXEMPTION FOR "REHABILITATIVE OR 
THERAPEUTIC PURPOSES" • 

The LTA [clause l(c)(ix)l contains an exemption for accommoda- 
tion occupied "for ... rehabilitative or therapeutic purposes." 
Non-profit agencies that consider their group homes to be thera- 
peutic environments focused on this exemption in raising the 
issue of LTA coverage. i^ Some of these group homes choose to 
assume they are covered by the LTA;^^ others prefer to assign 
certain tenants' rights to their residents but maintain they are not 
covered by the LTA. In all cases, they argue that they must have 
the ability to discharge residents rapidly for treatment-related 
reasons. For example, in one alcohol/dmg treatment centre that 
chose to operate under LTA, a resident refused to take the medi- 
cation that was a condition of acceptance into the program. The 
resident became argumentative, disruptive, and physically 
threatening to residents and staff. The entire program was 
severely harmed by the resident's behaviour. The operators 
informed the Commission that had they known they would not 
be able to remove the person rapidly from the premises, they 
would never have agreed to operate under the LTA. 

A failure to take medications, counselling, or treatment, or 
even to abstain from alcohol is not grounds for eviction under 
LTA; however, without such conditions, treatment programs 
are merely housing programs. Church, community, and other 
agencies point out that they entered the housing arena as a 
means of providing treatment or rehabilitation; they do not 
wish to be landlords. 

The Commission has been shown signed contracts and 
agreements between agencies and client/residents. These pur- 
port to offer LTA protections while requiring compliance with 



16 It is also possible for private, 
for-profit treatment resi- 
dences to claim this exemp- 
tion. 

17 They generally do so for rea- 
sons of philosophy in that 
they wish their clients to 
assume the status of resi- 
dents in as normalizing an 
environmient as is possible. 



90 The Rest Home As Home 



18 Treatment residences that are 
government funded and/or 
regulated could continue to 
operate outside the LTA by 
claiming an exemption under 
clause l(c)(viii) of the LTA. 
This clause exempts residen- 
tial premises that are subject 
to fourteen enumerated 
health and social-services 
statutes. 



treatment-related provisos in order to remain in the program 
— and, therefore, the housing. Such agreements are intended 
to endow the rights of LTA as far as is possible without threat- 
ening the essence of the program. 

However, housing-advocacy groups and legal aid clinics 
argue that capricious eviction, rights abuses, and due-process 
denial are not unknown in the non-profit sector, and that the 
guarantees in "agreements" are largely voluntary and without 
explicit legal foundation. As well, a range of housing 
providers might claim the exemption even if their therapeutic 
or rehabilitative function is secondary to the provision of 
housing. A housing provider exempt on this basis might 
threaten eviction of a resident resisting "unreasonable" treat- 
ment or rehabilitation, or "house" rules. 

We are concerned about the potentially wide interpretation 
of the exemption "for rehabilitative or therapeutic purposes." 
To provide a blanket exemption for any self-labelled residen- 
tial "treatment" program while leaving "rehabilitation" and 
"therapy" undefined might simply re-open, under a different 
label, the broad exemption currently available to accommoda- 
tion occupied "for the purpose of receiving care." 

However, eliminating the "rehabilitative or therapeutic" 
exemption proved unacceptable to the Commission because 
this would threaten the viability of many legitimate charitable 
and commercial treatment residences. There are many creative 
and successful treatment programs operated without govern- 
ment funding and regulation. If this exemption were deleted, 
government alone would determine which treatment and 
rehabilitative residences would be exempt from LTA through 
its power to fund or regulate. i^ Such power might further 
entrench narrow medical interests and processes at the 
expense of holistic approaches. The Commission does not 
recommend giving government the right to distinguish "legiti- 
mate" from "non-legitimate" treatment in this way. 

We do, however, recommend that an adequate legal dis- 
tinction be made between a rest home, which offers care, and 



The Landlord and Tenant Act and Rent Control 91 



a group home that offers treatment or rehabilitation^^ so that 
criteria for the exemption for the latter can be specified clear- 
ly. The Ministry of the Attorney General in conjunction with 
the Ministry of Health (MoH) and MCSS should identify such 
criteria. 

RECOMMENDATION 14: That the Ministry of the Attorney 
General and other affected ministries define specific crite- 
ria for qualifying under the "rehabilitative or therapeutic 
purpose" exemption from the Landlord and Tenant Act 
[clause l(c)(ix)]. These criteria should then be given legal 
effect through an appropriate amendment to the Landlord 
and Tenant Act ox its regulations. 



19 The issue has been raised 
before us with specific refer- 
ence to alcohol- and drug- 
dependency treatment pro- 
grams. At present there are 
many such treatment pro- 
grams in Ontario, some fund- 
ed as hostels under General 
Welfare Assistance. Those 
programs that do not meet 
the new criteria to be devel- 
oped under Recommenda- 
tion 14 would not qualify for 
exemption from the LTA 
although they could never- 
theless remain as hostel 
accommodation under GWA. 



It is beyond our mandate to define the meaning of "rehabilita- 
tion" or "therapy," but certain differences between these con- 
cepts and "care" are evident: residents typically enter a rest 
home for an indefinite, open-ended period, i.e., it is their 
home. Most treatment programs are of finite duration, with 
specific goals and targets. The goals usually relate to acquiring 
new skills or habits or altering behaviour. When these goals 
are achieved or failure is acknowledged, the resident is 
expected and required to "go home." 

For exemption from the LTA, the primary purpose for 
occupying the accommodation must be to receive rehabilita- 
tion or therapy; accommodation with care that includes an 
element of rehabilitation or therapy should not qualify for 
exemption. 

At present, residents must challenge housing providers' 
assertions that accommodation is exempt from the LTA on the 
basis that it is occupied for rehabilitative or therapeutic pur- 
poses. This "self-exemption" by operators is not acceptable. 

Once criteria for exemption have been established, the 
exemption of specific residences on rehabilitative or therapeu- 
tic grounds should be determined by the landlord-tenant 
court. It will thus be necessary to amend the LTA to provide 



92 The Rest Home As Home 



20 A notice of an application for 
a declaration of exemption 
on this basis should be given 
to all residents of the premis- 
es, to the Ministry of the 
Attorney General and to the 
appropriate service-providing 
ministry, for example, the 
MCSS and the MoH. Consid- 
eration should also be given 
to providing advocacy 
groups with notice of the 
application and providing 
appropriate intervener status 
for such groups. 

Prior to the effective date 
of such a provision, all resi- 
dences that wish to seek 
such an exemption must 
have time to do so. There- 
after, all persons occupying 
such accommodation without 
such a court declaration 
should be covered under the 
LTA. Operators who wish to 
alter their status when per- 
sons are already living in a 
residence may do so only for 
new residents. Once such an 
exemption is given by the 
courts, all persons who enter 
the treatment residence must 
be notified that such a decla- 
ration has been obtained. 
Failing such notification, per- 
sons entering residence 
should have all the protec- 
tions of the LTA. 

21 Clause l(c)(viii) of the LTA 
and clause 3(1 )(f) of the pro- 
posed RCA. The identified 
statutes are as follows: the 
Public Hospitals Act; the Pri- 
vate Hospitals Act; the Com- 
munity Psychiatric Hospitals 
Act; the Mental Hospitals Act; 
the Homes for Special Care 
Act; the Homes for Retarded 
Persons Act; the Homes for 
the Aged and Rest Homes Act; 
the Nursing Homes Act; the 
Ministry of Correctional Ser- 
vices Act; the Charitable 



for such court declarations. In the absence of such a declara- 
tion, no residence may claim exemption from the LTA on the 
basis that it is occupied for "rehabilitative or therapeutic pur- 
poses. "20 



EXEMPTION BY BEING "SUBJECT TO" 
FOURTEEN PROVINCIAL STATUES 

Residential accommodation that is "subject to" one or more of 
fourteen listed provincial health and social-services statutes is 
also exempt from the LTA.~^ This exemption can be claimed 
by group homes and supportive-housing providers only if 
they have some formal link to government. 

The Commission has heard that some housing providers 
claim an exemption from the LTA solely on the basis of pro- 
viding services funded under one of the listed statutes; other 
such providers do not claim such an exemption. Because it is 
not clear what "subject to" the listed statutes means, residents 
and owner/operators are often uncertain whether the LTA 
applies. 

It appears that any supportive-housing provider or group 
home providing services and/or accommodation funded by a 
ministry under the identified statutes may be exempt from the 
LTA. 

However, it is not clear to this Commission why residences 
subject to these acts are exempt and on what basis the listed 
statutes were chosen. (It might be that the listed statutes were 
seen as regulatory, i.e., that they protected residents or made 
the housing providers accountable in some way.) 

The Commission does not accept that mere funding under 
a listed statute, or minimal "regulation" by or financial 
accountability to a government ministry is sufficient for 
exemption from the LTA. For purposes of LTA coverage, the 
source of funding — be it the residents or the government 
under a listed statute should be irrelevant. 22 



The Landlord and Tenant Act and Rent Control 93 



In our view, programs under government auspices should 
meet certain criteria in order to obtain exemption from the 
LTA, irrespective of whether they are "subject to" particular 
legislation. We believe that exemption from LTA can be justi- 
fied only if there is some formal accountability mechanism 
from the housing provider to the government; as well, there 
must be protections for residents analogous to those forgone 
by virtue of the residence being exempt from coverage under 
LTA. 

The Commission recommends that the Ministry of the 
Attorney General, in conjunction with the affected ministries, 
identify clear criteria for exempting accommodation under 
government auspices from coverage under LTA. These criteria 
should replace clause l(c)(viii), under which exemptions are 
based on being "subject to" enumerated statutes. 

It should be made clear that government-funded and -reg- 
ulated accommodation intended as a temporary accommoda- 
tion — hospitals, for example — should not be covered by LTA. 
The Commission also believes permanent accommodation 
funded or regulated by government should be exempt from 
the LTA only if the following protections are provided to resi- 
dents: 



Irutitiitions Act; the Child 
and Family Services Act; the 
Developmental Services Act; 
the Ministry of Health Act 
and/or the Ministry of Com- 
munity and Social Services 
Act. The present RRRA does 
not contain this exemption. 

22 As discussed in chapter 1, 
both the Ministry of Health 
Act and the Ministry of Com- 
munity and Social Services 
Act (statutes listed under the 
LTA exemption) do not pro- 
vide for program account- 
ability, protection from arbi- 
trary eviction and other due- 
process rights for residents in 
accommodation where the 
housing provider receives 
funds under those acts. The 
two acts are primarily fund- 
ing mechanisms. 

23 Such a bill of rights and its 
enforcement are discussed in 
Part III. 



1. security of tenure or protection from arbitrary eviction, 
i.e., the right to remain housed unless there are legitimate 
causes for termination of the tenancy; 

2. due process, i.e., protection from arbitrary decision- 
making with respect to residents' security of tenure; 

3. protection against economic eviction, i.e., the price of 
accommodation set or regulated by the government; and 

4. protection of the basic rights of residents, as provided in 
a bill of rights. 23 



Special grounds for eviction, related to participation in a resi- 
dential program, may be needed in some types of residences — 
for example, when residents complete a program, no longer 



94 The Rest Home As Home 



need a specially designed living unit, refuse to abide by 
essential program rules, or are no longer able to benefit from 
the program. Such grounds for termination could be devel- 
oped by the concerned ministry or ministries. 

Moreover, applicable substantive and due-process protec- 
tions must be contained in the appropriate statute or regula- 
tions. Voluntary or contractual protections agreed to by min- 
istries, operators, and residents are not sufficient. 

RECOMMENDATION 15: That the Ministry of the Attorney 
General delete from the Landlord and Tenant Act the 
exemption for accommodation subject to fourteen listed 
statutes [clause l(c)(viii)]; and that the Ministry of the Attor- 
ney General, in conjunction with affected ministries, identi- 
fy in the Landlord and Tenant Act or its regulations clear 
criteria for exempting premises accountable to the govern- 
ment. These criteria are to include the following: 

1. the accommodation is not intended to be permanent 
accommodation; or 

2. protection against arbitrary and/or economic eviction, 
due process for evictions, and protection of basic rights 
through an enforceable bill of rights are provided for 
residents in the relevant legislation. 

The Ministry of the Attorney General could then exempt class- 
es of premises, such as homes for the aged, if it is satisfied 
that all premises in the class meet the criteria. The regulation 
should also allow application to the Ministry of the Attorney 
General to exempt individual premises from the LTA. 



EXEMPTIONS FROM THE DEFINITION 
OF "REST HOME" 

Any accommodation that qualifies for exemption from the LTA 
on the grounds of rehabilitation or therapy, i.e., that its prima- 



The Landlord and Tenant Act and Rent Control 95 



ry purpose is treatment rather than permanent accommoda- 
tion, should be excluded from the Commission's definition of 
a rest home (and therefore from many of the recommenda- 
tions in this Report). 

We also recommend that any accommodation exempted 
from LTA coverage based on criteria developed to replace the 
listed statutes should also be excluded from our definition of 
a rest home.^^ in addition, short-term emergency shelter 
should be exempt from the definition of a rest home. 

RECOMMENDATION l6: That any accommodation 
exempt from the Landlord and Tenant Act on the grounds 
that it meets the criteria for "accommodation occupied ... 
for rehabilitative or therapeutic purposes" tclause l(c)(ix)] 
or based on the criteria to replace the exemption for 
accommodation subject to fourteen listed statutes [clause 
KcXviii)], or provided as short-term emergency shelter, be 
excluded from the definition of "rest home" as set out in 
this Report. 



A "Rest-Home" Clause Under ITAl 



24 The criteria for exemption 
will include a range of pro- 
tections for residents and 
thus it would be superfluous 
to define such accommoda- 
tion as rest homes for pur- 
poses of the recommenda- 
tions in this Report. 

25 A legislated ground for termi- 
nation of a residential lease 
based on the inability to meet 
the care needs of a tenant 
would almost surely violate 
both the Charter of Rights 
and Freedoms and the 
Ontario Human Rights Code, 
both of which prohibit dis- 
crimination on the basis of 
disability. 

26 This is often given as one 
example of persons with dif- 
ficulties who typically reside 
in some rest homes. The 
argument is made that com- 
munity housing for such per- 
sons would not be available 
without an exemption from 
the LTA. 



Operators and some resident groups have urged the Commis- 
sion that if rest homes are to be covered under the ITA, there 
must be new provision in that Act to recognize the unique 
problems that can arise in this setting. 

Of particular concern to operators are residents whose care 
needs have increased so that they can no longer be met by 
services provided by the operator or delivered to the home 
from the community. Under the LTA, they argue, eviction of 
such residents would not be possible. 25 Nor could they evict 
persons who are prone, for example, to setting fires. 26 Opera- 
tors argue that they cannot be expected to wait until a fire has 
been set or other destructive behaviour has occurred before 
evicting; they must have the right to discharge on short notice. 



96 The Rest Home As Home 



27 Provided that there has been 
no court order to the con- 
trary, residents are assumed 
to be capable of making 
decisions about their own 
lives. These include decisions 
that are potentially harmful to 
themselves or decisions that 
others may disapprove of. An 
operator, or others, may seek 
a court order appointing a 
guardian on the basis that the 
resident was incapable of 
decision-making with respect 
to some or all personal mat- 
ters. Such guardian could 
decide where the resident 
should live. In the absence of 
such an order, individuals 
can do as they wish in the 
privacy of their homes pro- 
vided they do not contravene 
the rights of others as set out 
in LTA. 

28 Eviction should be an option 
even when the conduct aris- 
es from the operators' and 
the communities' inability to 
meet the care needs of resi- 
dents. 

29 These grounds could permit 
the eviction of a senior who 
has become unduly aggres- 
sive and disruptive within the 
rest home. People with 
Alzheimer's disease, for 
example, experience a deteri- 
oration that can become 
acutely troublesome both to 
other residents and to opera- 
tors and staff. 



It is the Commission's view that such problems are funda- 
mentally a matter of supervision. Only a few seconds are 
required to start a fire or create other dangers; with or without 
LTA, it may be impossible to apprehend people before the 
harm is done. Persons with pyromaniac tendencies, like other 
vulnerable persons, require supervision appropriate to their 
need level. Certain people require intensive supervision when 
discharged from a hospital into the community. Exemption of 
their accommodation from the LTA will not solve the problem; 
the remedy lies in better discharge planning and practice of 
community care and deinstitutionalization. 

At the same time, the Commission recognizes the legitima- 
cy of the more general concerns about the conduct of some 
residents whose needs can no longer be met. 

In considering grounds appropriate for eviction, we must dis- 
tinguish between behaviours that negatively affect operators or 
other residents and those that have no such effect. For example, 
individuals' care needs may increase beyond the capacity of the 
home and they are unwilling to depart voluntarily; however, 
there is no negative impact on others. The Commission sees no 
need for a new ground for eviction under these circumstances. 
Indeed, we would oppose eviction of residents who make deci- 
sions that may harm themselves but no one else.^^ 

However, when residents' conduct has a negative impact 
on others, a response becomes necessary and eviction should 
be an available option. 28 Under subsection 109(1) of the LTA, 
there are grounds other than non-payment of rent on which a 
landlord may seek early termination of a tenancy: ^9 

1. when the tenant "causes or permits undue damage" to 
the premises by "wilful or negligent acts" (paragraph a); 

2. when the tenant's conduct "substantially interferes with 
the reasonable enjoyment of the premises for all usual pur- 
poses by the landlord or the other tenants" (paragraph c); 
and 

3. when "the safety or other bona fide and lawful right, 



The Landlord and Tenant Act znd Rent Control 97 



privilege or interest of any other tenant is ... seriously 
impaired ..." by an act of the tenant (paragraph d). 

The Commission is satisfied that one or more of these clauses 
provides adequate grounds for termination of rest-home ten- 
ancies when the residents' conduct has an adverse impact on 
others. A new and distinct "rest-home" ground for termination 
of a tenancy under the LTA is unnecessary. 

However, a clear problem remains: eviction under the LTA can 
take several weeks, during which irreparable damage may be 
done to the property or rights of the landlords or other residents. 
Residents sharing rooms with those whose behaviour would war- 
rant eviction were, understandably, most adamant that speedy 
departures be facilitated. In the most urgent situations, operators 
or other residents can contact the police, mental-health profes- 
sionals, or an emergency-response team. The Commission, how- 
ever, does not wish to emphasize either a medical or criminal law 
response to such behaviour. The preferred response would be 
under the LTA whenever possible. 

The Commission therefore recommends a "fast-track" rest- 
home amendment to the LTA. This would allow court orders 
for the rapid but temporary departure of residents if the time 
required for an application for eviction were likely to result in 
serious harm to other tenants or the landlord. The "fast track" 
would not result in eviction, but would simply prohibit ten- 
ants from occupying the premises until the landlords' applica- 
tion had been processed or until there were an alternative res- 
olution of the matter, such as additional services provided to 
troublesome residents. -"^o 

Such situations can occur in any residential premises; how- 
ever, this fast-track procedure should be available only to 
operators of registered rest homes (see chapter 10). This 
departure from the current landlord-tenant law would be justi- 
fied, in the Commission's opinion, by the particularly vulnera- 
ble -status of many residents and by the communal nature of 
milch rest-home living, particularly in boarding homes where 



30 Care or supervisory services 
from a community agency, 
either on an emergency or 
continuing basis, might per- 
suade operators or the court 
that an order to temporarily 
vacate the premises is not 
necessary. 



98 The Rest Home As Home 



31 We recognize this response 
is at times inadequate, but 
the issue before the Commis- 
sion is parity of treatment 
between the rest home and 
residences elsewhere in the 
community. 



several strangers often share a bedroom. 

In many cases, a temporary forced departure from a rest 
home may constitute a permanent departure: once alternative 
accommodation is secured, a person may no longer wish to 
return to the original setting. Thus, before orders to temporari- 
ly vacate are made, residents should receive notice and be 
given the opportunity to argue their case. Fast-track orders 
should not be permitted on an ex parte basis. It is our inten- 
tion to speed the process in specific circumstances and not to 
alter the content of the LTA. 



RECOMMENDATION 17: That the Landlord and Tenant 
Act be amended to provide that landlords of registered rest 
homes may apply for an order requiring a resident to tem- 
porarily vacate a rest home until a pending application to 
terminate the tenancy is heard in situations in which para- 
graphs (a), (c), or (d) of subsection 109(1) of the Landlord 
and Tenant Act applies and in which the time required to 
proceed with the application for termination would likely 
result in serious harm to the person or property of other 
tenants or the landlord. 

Once the temporary removal of the resident or an eviction has 
been secured, the landlord's obligation is at an end. The 
MCSS, the MoH and/or the long-term-care program must assist 
the resident just as they must assist any individuals in private 
homes who become unable to cope independently: either 
supports must be provided so that the individuals can remain 
in the community, or a suitable institutional placement, such 
as a nursing home or home for the aged, must be secured. 3i 
The problem is not the landlord's to resolve. 



OTHER LTA CONCERNS 



Two further objections to the LTA have been raised by the 



The Landlord and Tenant Act and Rent Control 99 



rest-home industry:^^ twenty-four-hour advance notice for 
entry to rented premises, except in emergency situations; and 
the right to assign or sublet premises. 

It is our view that the twenty-four-hour advance notice 
requirement is reasonable for one's home. Supervision, assist- 
ing with medications, and general housekeeping all require 
the consent of residents. ^3 it is every person's right to refuse 
such services, and it is not our intention to interfere with this 
right. 

Assigning or subletting premises may be necessary if a 
long-term lease has been signed or when adequate notice 
cannot be given. If a resident on a monthly tenancy dies, for 
example, it might then be nearly three months before the 
estate is free of its legal obligations. In the case of a long-term 
lease, the estate would be responsible until the end of its 
term. Operators might not wish to demand the charges from 
an estate for reasons of public relations or compassion, but it 
would be their right to do so. As well, if residents on long- 
term leases leave because of general dissatisfaction, their 
financial obligations continue for the full term of those leas- 
es. 3^ 

Operators argue that tenants might sublet to people with 
excessively high care needs, thereby circumventing the opera- 
tors' criteria for entry to the rest home. However, while land- 
lords cannot "unreasonably withhold" consent to a sublease, it 
may be reasonable to refuse consent on the grounds that the 
sublessee's needs cannot be met by the operator or by com- 
munity service providers on the premises. 35 



Rest Homes and Rent Contro 



The- Ministry of Housing's "preferred approach for discussion" 
was that the accommodation component of rest homes be 



32 Ontario Long-Term Residen- 
tial Care Association, Position 
Paper on Rent Control (April 
13, 1991). 

33 The law respecting persons 
incapable of consenting is 
undergoing change. Simpli- 
fied procedures for obtaining 
a legal consent on behalf of 
such persons is the goal of 
new legislation. 

34 Under the LTA, the landlord 
has an obligation to mitigate 
damages. This is discussed 
further in chapter 6, "Life at 
the Top." 

35 Note that tenants have the 
right to sublet, but landlords 
may provide in the tenancy 
agreement that this right is 
subject to their consent. 
Someone with care needs 
below those sold in a manda- 
tory package might choose to 
acquire the sublease. Since 
such new residents are pay- 
ing for services they neither 
need nor use, we see no 
problem for the operator. An 
additional concern is tenants' 
subletting to someone young, 
given that retirement homes 
have been built around the 
interests and needs of 
seniors. If the home is unable 
to care for the non-senior, 
the response is as indicated 
above; if the issue is social 
mix and resident heterogene- 
ity, we need note only that 
all accommodation is subject 
to the Ontario Human Rights 
Code, which prohibits dis- 
crimination on the basis of 
disability or age, unless an 
age of sixty-five or over is a 
"requirement, qualification, 
or consideration for preferen- 
tial treatment" (section 14). 



100 The Rest Home As Home 



36 See note 3- 

37 Ontario Long-Term Residen- 
tial Care Association, Position 
Paper on Rent Control (April 
3, 1991). Of particular con- 
cern was the fear that the 
Ministry of Housing and its 
rent review officials lack 
understanding of the issues 
relating to residential care: if 
regulation was to occur, it 
ought to be done by a min- 
istry with experience in 
human service-delivery issues. 
The Ministry of Housing read- 
ily acknowledged its inexperi- 
ence in dealing with care- 
related matters. 

38 The formula used in Florida 
limits increases in the price of 
care services to the price 
index plus specified percent- 
age. Accommodation costs in 
Florida operate through a 
complex system of initial 
endowments and guaranteed 
partial repayment. The net 
effect is that the price of 
accommodation is not con- 
trolled, but the price of care 
services is controlled. This is 
the precise opposite of the 
Ministry of Housing's "pre- 
ferred approach" for Ontario. 

39 CMHC staff in several branch 
offices around the province 
collected data on retirement 
homes through telephone 
interviews with residence 
administrators or owners. This 
data must be interpreted with 
care, as the survey in some 
communities was informal. 

40 The question asked was, 
"What is included in your per 
diem?" It thus presumably 
refers to the mandatory pack- 
age and not optional services. 



covered by rent control. 36 The prices of care services would 
not be controlled, but "it would be prohibited to tie the provi- 
sion of such services to the provision of accommodation to a 
particular tenant ... unless required to do so under govern- 
ment funding programs." Thus accommodation would be 
"debundled" from care services on a mandatory basis. ("Care" 
was not defined in the Green Paper; this was to be resolved 
in the legislation or regulations.) 

The rest-home industry vehemently opposed the proposal, 
arguing adverse cost implications; the practical impossibility of 
separating accomrnodation and care; and the fact that individ- 
ual residents' needs could fluctuate, sometimes day to day. 
They cited the responsible behaviour of the industry, noting 
that rent increases during the previous two years had aver- 
aged 4.8 percent annually.37 

Operators also claimed that the interests of residents could 
be protected better through means other than rent control: in 
Florida, for example, allowable rate increases for services in 
retirement homes are tied by contract to an accepted price 
index.38 

When introducing the RCA, Bill 121, in the Legislature on 
June 6, 1991, the minister of Housing stated that the rest- 
home issue would be deferred pending the recommendations 
of this Commission. 

We have examined the empirical evidence on price 
behaviour in the industry using surveys conducted by Canada 
Mortgage and Housing Corporation (CMHC). 39 There is no 
province-wide figure with which to compare the industry's 
estimate of 4.8 percent annual rent increase over two years, 
but localized results are informative. 

A structured questionnaire was used to collect data in the 
Toronto Census Metropolitan Area (CMA), which includes 
Metro Toronto and the regions of York, Peel, and Halton.''0 
Based on those retirement homes for which CMHC had data, 
rents in the Toronto CMA increased by 11.2 percent in 1989 
and by 13-3 percent during a twenty-one-month period end- 



The Landlord and Tenant Act and Rent Control 101 



ing in December 1990 (an annualized rate increase of 7.6 per- 
cent).'^! In the city of Toronto, rents increased by 11 percent in 
1989 and by 27.8 percent during the same twenty-one-month 
term (annuahzed at 15.9 percent). In Scarborough, rents 
increased by 40.8 percent during the twenty-one months. 
CMHC notes that new projects with higher rents coming on- 
stream during the time period studied increased the overall 
average rent levels. Vacancy rates in Metro Toronto, excluding 
recently completed projects, rose from 16 percent in February 
1989 to 18 percent in March 1991. ^^ 

Ottawa had a 23.3 percent vacancy rate in December 1989 
— reflecting massive overbuilding — and a 16.4 percent vacan- 
cy rate a year later. The rent increase during that period was 
3.1 percent, with the smallest increases at the luxury end of 
the market (2.2 percent in premises with per diem rates of $65 
and up). The projected rent increase for 1991 was 6 percent.'^^ 

The industry has argued that high vacancy rates, particular- 
ly in the luxury market, check excess price increases. '»^ How- 
ever, the corollary to such a tradeoff is that when the vacancy 
rate declines, rent increases become larger. The CMHC Ottawa 
survey supports this assumption: in the year beginning 
December 1989, when the vacancy rate was 23 percent, there 
was a 3.1 percent increase; a year later, when the vacancy rate 
had dropped to 16 percent, the projected rent increases dou- 
bled, to 6 percent. 

The vacancy rate does not create stability in the industry: 
when it is high, some operators will undoubtedly leave the 
industry, reducing the surplus; those remaining will attempt to 
adjust their rents in response to the shortfall in revenues 
resulting from low occupancy. 

In any case, public policy cannot be based on the assump- 
tion that this excess capacity will continue as a check ensur- 
ing low rates of rent increase. Many potential investors have 
access to good market information, and it is widely acknowl- 
edged today that many rest-home markets are substantially 
oversupplied. As well, the vulnerability of residents and the 



41 The increase rises from 13-3 
percent to 14.3 percent if the 
rest of the Toronto branch of 
CMHC is added. The addition 
mainly consists of Durham 
Region, where rents 
increased by 48.8 percent 
over the twenty-one-month 
period, and Simcoe. Annual- 
ized rates are calculated by 
the Commission and are sim- 
ply pro-rated to twelve 
months; they do not include 
compounding. 

42 The vacancy rate rose from 
10 percent to 24 percent in 
the City of Toronto and from 
7 percent to 14 percent in 
Etobicoke, while it dropped 
from 23 percent to 12 per- 
cent in North York. The 
vacancy rate rose in Peel and 
Halton regions, but dropped 
in York and Durham regions, 
and also in Simcoe. 

43 Information from other com- 
munities is more limited: a 
Hamilton CMHC branch sur- 
vey in December 1990 found 
a 17.4 percent vacancy rate 
(ranging from 32.2 percent to 
5.2 percent), with a projected 
1991 rent increase of 5 per- 
cent. A London branch infor- 
mal survey of a few homes 
in the region reported pro- 
jected rent increases for 1991 
of percent to 4 percent; 
1991 vacancy rates were 
about 10 percent in the low- 
to-medium price range and 
20 percent in the high brack- 
et. The Thunder Bay office 
had no information of any 
sort, and the Sudbury office 
had individual data on four 
private retirement homes. 

44 They suggest there is a trade- 
off involving an inverse rela- 
tion between the vacancy 



102 The Rest Home As Home 



rate and the rate of price 
(rent) inflation, and further- 
more that a vacancy rate in 
the 15 to 20 percent range 
seems to be compatible with 
stable or relatively low rent 
increases. There is an analogy 
with conditions in the labour 
market with its inverse rela- 
tion between unemployment 
and the rate of wage inflation. 

45 Were we to recommend com- 
prehensive regulation for the 
rest-home industry, to create 
a new system of nursing 
homes in Ontario, then prices 
to the consumer (rent for 
housing) would be set 
through the relevant regulato- 
ry process: rent control would 
be superfluous. 



reluctance of frail seniors to move from place to place limits 
their ability to exploit high vacancy rates to receive lower 
rents. 

The power imbalance between residents and operators 
increases once individuals have moved into a home: high 
vacancy rates may result in reduced prices at first; thereafter, res- 
idents are increasingly vulnerable, and price rises may be resist- 
ed less or not at all. Such market segmentation, in which a seller 
can charge different prices to different consumers, may result in 
low overall price increases, yet very high price increases for 
individual vulnerable residents. 

Under the present law, much energy is expended on 
deciding whether a particular rest home provides accommo- 
dation "for the purposes of care," and is thus exempt from 
rent control. For this Commission's purposes, this is a useless 
exercise: we are charged not with interpreting existing or pro- 
posed legislation but with recommending future policy. 

We see no reason why rents for one type of residential 
accommodation should be left uncontrolled when those for all 
other rental housing are subject to control. Those residences 
in which prices of accommodation are set through some other 
provincial legislation should, indeed, be exempted,^5 but we 
cannot accept a regulatory void. 

Provincial law mandates a maximum allowable rate of rent 
increase for residential premises; it is unacceptable that resi- 
dents who happen to reside in rest homes should be subject 
to price increases in excess of this ceiling. As long as rent 
control is the law of Ontario, residents of rest homes are enti- 
tled to its protections, because the rest home is their accom- 
modation. 



RECOMMENDATION 18: That rest homes be subject to 
rent control. That paragraph 3(1 )(e) of the proposed Rent 
Control Act, 1991 (Bill 121) be amended to remove the 
phrase "or for the purpose of receiving care." 



The Landlord and Tenant Act and Rent Control 103 



As we have indicated, coverage under rent control should be 
consistent with that under LTA, and the two statutes should 
proceed in tandem. The LTA exemptions recommended by 
the Commission should therefore be contained in the pro- 
posed RCA. 

RECOMMENDATION 19: That any accommodation exempt- 
ed from Landlord and Tenant Act coverage on the basis of a 
court determination that it is occupied for "rehabilitative or 
therapeutic purposes" tclause l(c)(ix)] or on the basis of the 
criteria that will replace clause l(c)(viii) also be exempt from 
rent control. 



46 The discussion does not 
apply to non-care services, 
such as parking, that cannot 
be debundled from the 
accommodation portion 
except as permitted by the 
RCA. 

47 There are restrictions on the 
sale of certain "health-care" 
services. See the discussion of 
bootleg nursing homes in 
chapter 3. 



RENT CONTROL AND CARE SERVICES 



The Ministry of Housing's Green Paper favoured rent control 
for only the accommodation element of rest-home charges; 
care services would be offered only on an optional basis and 
their prices would not be controlled. It was assumed that the 
freedom of residents to purchase services from outside suppli- 
ers would constrain excess price rises for such services. 

We acknowledge that competition yields restraint, but we 
are unable to support mandatory delinking of accommodation 
and care services. ^6 Such formal separation means little if 
alternative suppliers are not available; in rural areas, for exam- 
ple, there may be little choice but to buy from residence oper- 
ators. 

More important, the retirement home is a private 
entrepreneurial activity, and we are unwilling to dictate to 
operators what they may or may not sell.'^^ In addition, opera- 
tors note that a forced separation would negate the very 
essence of the industry: rest homes would become accommo- 
dation-only premises if residents chose not to buy optional 
services; yet the essence of the industry is the sale of both 
housing and care services. 



104 The Rest Home As Home 



We recognize that permitting the sale of a mandatory pack- 
age in which only the price of accommodation is controlled 
may lead to inordinate inflation in the prices of mandatory 
care services. The intent of rent control would be easy to 
evade by combining low rents for accommodation and expen- 
sive, mandatory care packages exempt from control. 

Moreover, some argue for controlling the price of optional 
care services (those not included in the mandatory package) 
on the basis that these services may be necessary for the resi- 
dent's daily functioning. For example, assistance with bathing 
may be essential to some residents, even if this service is 
offered only on an optional basis. 

Calls to control the prices of both the mandatory care 
package and the optional care services grow out of the sub- 
stantial imbalance in bargaining power between residents and 
operators. It is argued that this imbalance can be redressed 
only through direct control of pricing. 

The Commission is aware of no widespread general 
demand for price controls in Ontario, and we see no need to 
recommend a major change in public policy in this area. Con- 
trol of all care prices would necessitate unwanted and expen- 
sive new bureaucracy. If owners/operators require the pur- 
chase of care services as a condition of renting the premises 
(i.e., as part of the mandatory package), then such care ser- 
vices must be subject to rent control. 

RECOMMENDATION 20: That any care service sold on a 
mandatory basis in a rest home be subject to rent control 
in the same manner as the basic accommodation. 

Under the proposed RCA, an annual guideline for rent 
increases would be set, based on identified operating costs. 
These would not make provision for the costs associated with 
"care"; as a result, the annual increase for a rest home with 
mandatory care services would be calculated on incomplete 
information. 



The Landlord and Tenant Act and Rent Control 105 



We do not deem it feasible or desirable to calculate a dis- 
tinct guideline for rest homes with mandatory care services: 
we cannot envisage a single index that could apply to the dif- 
ferent types, quantities, and qualities of mandatory care ser- 
vices offered by all homes. On a practical level, rest-home 
accommodation represents only a very small part of the total 
accommodation covered by rent control in Ontario: there is 
no cost-efficient way to develop a distinct guideline for one 
minor element of the total system. Therefore: 

RECOMMENDATION 21: That charges for accommodation 
and mandatory care services in rest homes be subject to 
the same annual guideline increase as charges for other 
accommodation subject to the Rent Control Act, 1991. 

Thus, the cost of both accommodation and mandatory care 
services will rise annually by the percentage set by the rent- 
control guideline. Should costs of the mandatory care services 
rise faster than the guideline, operators will be disadvantaged; 
if mandatory care costs rise more slowly than the guideline, 
they will benefit. There is no a priori reason to assume one or 
the other will occur consistently. 



REST HOMES AND MEALS 

Room-and-board settings that offer only accommodation and 
meals, i.e., no care services, are currently subject to rent con- 
trol; their entire package, including meals, is covered. 

Some rest homes require the purchase of some or all meals 
as part of a mandatory package; others offer meals as optional 
extras, on a fee-for-service basis. As operators should be able 
to choose what they wish to sell, both approaches are accept- 
able. 

.However, any required purchase must be subject to rent 
control. It would be unacceptable for the government to con- 



106 The Rest Home As Home 



48 The Act would also permit 
applications for rent increases 
due to capital expenditures if 
tenants consent to the capital 
expenditures. 

49 Wages restrained from 
increasing due to rent control 
or other reasons mean, in 
effect, that those earning the 
wages are subsidizing those 
receiving the service. 



trol the price of accommodation but leave the costs of manda- 
tory meals unrestrained; clearly, food prices would rise to 
evade the intent of the price control. On the other hand, 
optional purchase of meals should be treated like care ser- 
vices for rent-control purposes. 

RECOMMENDATION 22: That the costs of any meals pro- 
vided as part of the mandatory package in rest homes be 
subject to rent control in the same manner as the basic 
accommodation. 



Since most or perhaps all homes require that at least some 
meals be bought as part of the basic accommodation package, 
in practice this would often mean rent control on both accom- 
modation and food. (The choice would be that of individual 
operators.) The same option, with the same implications for 
rent control purposes, should be available to operators in 
room-and-board-only settings. 



STAFF WAGES AND RCA 



Under the proposed RCA, landlords could apply for a maxi- 
mum increase above the guideline of 3 percent in a year for 
municipal taxes, utilities, and capital expenditures. In some 
cases, rent increases (up to 3 percent each year) for capital 
expenditures could be carried forward for two years.^^. 

The Commission believes that wage increases to low-paid 
staff in rest homes should also be grounds for increases above 
the annual guideline. "^9 Rest-home employees, many of whom 
are women and minorities earning at or near minimum wage, 
are effectively subsidizing residents, who may, in many cases, 
have higher incomes. The redistribution of income that results 
is regressive. There is a tradeoff between the goal of rent- 
control protection to residents and equity for poorly paid 
employees. It is our view that a strong case can be made in 



The Landlord and Tenant Act and Rent Control 107 



favour of the latter goal, even at the expense of the former. 

RECOMMENDATION 23: That wages of low-paid staff in 
registered rest homes be treated as an extraordinary oper- 
ating cost under the Rent Control Act, 1991 and as such 
may constitute the basis of an application for rent increases 
above the annual guideline. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^ 



6 

Life at the Top 



Agreements to enter a retirement home are private 
transactions between buyers (tenants) and sellers 
(operators). There is no public financial interest 
involved or any formal needs assessment. Admis- 
sion is based on individuals' expressed wishes to 
live in a particular setting and their ability to pay 
monthly rents, about $2,000 and up. Retirement homes are a 
form of housing with limited care services sold to those with 
the means and desire to purchase them. In short, moving to a 
retirement home involves a decision on how to spend one's 
own money. 

Residents' motivations differ. Some wish to live among 
their peers and friends, and to participate in organized social 
activities in a protected environment; others want to be free of 
the responsibilities of home ownership. For most, however, 
there is a common element: insurance, the belief that should 
assistance be needed it is readily available. This may mean 
having an emergency-call system in each room and twenty- 
four-hour monitoring on-site, or a more general sense of assis- 
tance being available to deal with needs that may arise as one 
declines with age. 

To meet such broad expectations, this type of accommoda- 
tion ranges from luxury retirement and "lifestyle" housing to 
high-care facilities that are, in effect, bootleg nursing homes. 



108 



Life at the Top 109 



In the former, a person typically purchases accommodation in a 
self-contained unit; some, all, or no meals; and an emergency- 
response system. Personal-care services, which may include 
health services, are available, either as part of a mandatory 
package purchased by all residents or as fee-for-service options. 
As well, there will usually be some form of social programming. 
Marketing is often targeted towards the "well elderly," stressing 
an "independent lifestyle." Some homes specify that should 
physical or mental decline reach a specific stage, residents must 
leave. 

The high-care rest homes do not formally offer more than 
ninety minutes of "nursing" care a day. In practice, however, 
care is dictated by needs and financial resources. Some retire- 
ment homes have a "high-care" unit available to new entrants 
and to current residents whose needs increase. 

What all this accommodation has in common is that it is a 
commodity purchased on the open market with individuals' 
own money. As no public funds are involved, the state's pri- 
mary interest is to ensure that the market works as it should. 

Many, perhaps most, seniors who enter luxury retirement 
homes do not consider themselves "vulnerable" as we have 
used the term, and they often resent any government incur- 
sion into their right to make a market purchase. ^ However, 
entry into a rest home is not a one-time purchase, like a pack- 
age holiday or a restaurant meal: it is an ongoing purchase by 
today's competent purchaser and tomorrow's vulnerable 
senior. Many seniors sell their own homes in order to move 
into retirement residences, and are unlikely to move again, 
particularly as they become more frail and vulnerable with 
increased age. 

Often conditions of entry into a rest home are not those of 
fully informed buyers and sellers voluntarily entering into 
exchange relationships. Rather, there is a significant power 
imbalance in favour of operators, who unilaterally decide the 
timing and conditions of entry to and departure from the 
home.^ 



1 Landlord-tenant and rent-con- 
trol legislation presume a gen- 
eralized need for protection of 
renters, to redress the imbal- 
ance of power between land- 
lords and tenants. To this 
extent, the Ontario govern- 
ment directly controls the pro- 
cess and outcome of private 
transactions. 

2 Analogies have been drawn to 
supplier-determined medical 
care. Individuals may initially 
decide to enter the retirement 
home (or doctor's office); 
thereafter, the seller of the ser- 
vice decides how much will 
be bought by the purchaser. 
"Need" is determined not by 
the buyer, as in most market 
purchases, but by the seller, 
who may have a financial 
incentive to sell more service. 
Retirement-home operators 
may exercise this power by 
threatening to discharge resi- 
dents who fail to buy enough 
of what the operators want to 
sell. 

A second analogy has been 
drawn to monopsony with 
inelastic demand, a situation 
in which there is a single (or 
few) sellers of a commodity or 
service, so purchasers cannot 
readily switch to alternative 
suppliers. (Local telephone, 
gas, and hydro services are 
typical examples.) Frail 
seniors are often reluctant to 
resist price increases by mov- 
ing elsewhere. 

Thus operators primarily 
determine consumers' needs; 
consumers often have little 
practical choice but to pur- 
chase what the operators want 
to sell them. 



110 The Rest Home As Home 



Entering the Retirement Home 

The purchase of rest-home residence involves a free market 
transaction; therefore, operators should be at liberty to sell 
whatever they want, subject to the constraints of the market 
and the need to equalize bargaining power between buyers 
and sellers. At the same time, consumers should have com- 
prehensive and detailed information about what they are buy- 
ing, now and in the future. 

Operators may sell a mandatory package of accommoda- 
tion and specified care services that must be purchased by all 
residents. In addition, they may offer optional care services, to 
be purchased on terms negotiated between individual buyers 
and sellers. 

Care services may be totally debundled, i.e., only accom- 
modation is obligatory and all care services are offered on an 
optional basis. The package may be all-inclusive, i.e., all 
accommodation, food, and care services are provided for a 
fixed monthly payment. As well, there can be any arrange- 
ment in between. 



REST-HOME "RENT" 

Nothing this Commission recommends will intrude on opera- 
tors' rights to offer whatever mandatory package they wish. In 
order to preserve this right, the proposed Rent Control Act, 
1991 (RCA) will need to be amended. The broad definition of 
"rent" in subsection 1(1) of the proposed Act must state that 
charges for optional care services in a registered rest home 
are not "rent" within the meaning of the Act. Section 31 of the 
proposed Act prohibits certain "additional charges," including 
key money. This section will have to be amended to clarify 
that requirements by operators of registered rest homes that 
residents purchase mandatory care services do not contravene 



Life at the Top 111 



the Act. Section 31 would continue to protect residents and 
prospective residents from attempts by operators to require 
the purchase of optional care services. 



3 That is, all mandatory pack- 
ages must include some (not 
the same) accommodation 
and the same care services. 



RECOMMENDATION 24: That subsection 1(1) and section 
31 of the proposed Rent Control Act, 1991 be amended to 
indicate, respectively, that in a registered rest home, 
charges for optional care services are not "rent" and that 
the purchase of care services as part of a mandatory pack- 
age of accommodation and care services does not consti- 
tute an illegal "additional charge." 

The same mandatory package must be offered to all pur- 
chasers, 3 not as an end in itself but to ensure effective rent 
control. Otherwise, operators might sell different mandatory 
packages, requiring one resident to buy a certain package at a 
given price and another resident to buy a different package at 
a higher price. It would be impossible, short of total price 
control of care services provided by operators, to determine 
how much of the higher cost of the second package is due to 
enriched care and how much is accommodation costs that 
may exceed the legal maximum rent. 

RECOMMENDATION 25: That registered rest homes be 
permitted to sell any mandatory package of accommoda- 
tion and services they wish, provided that the same manda- 
tory package be sold to all residents. 



Section 18 of the proposed RCA permits operators to base an 
application for a rent increase (3 percent above guideline) on 
the cost of new or additional services to a rental unit, if the ten- 
ant consents. This provision is not intended to apply to personal- 
care services or to common services that affect all residents, such 
as security services or elevators. If this section were to apply to 
care" services, different rental units might have different mandato- 
ry care packages. Therefore, section 18 must be amended to 



112 The Rest Home As Home 



4 Changes to the mandatory 
package for all residents are 
discussed below. 



indicate that care services are not included.'' 

RECOMMENDATION 26: That section 18 of the proposed 
Rent Control Act, 1991 be amended to exclude personal- 
care services, in order to ensure that the same mandatory 
package is available to all residents. 



CREATING INFORMED CONSUMERS 



Rest homes may accept residents whose care needs are 
greater than the homes are capable of meeting. In addition, 
residents decline with age and their need for care increases: 
persons entering a rest home at a high level of functioning 
may over time develop needs that cannot be met in the resi- 
dence. 

Operators may wish such residents to move to higher-care 
facilities. The residents may agree, but there may be no suit- 
able spaces available. Or, the residents may be unwilling to 
move in the belief that their care needs can be met in their 
"home." In response, operators may wish the residents to pur- 
chase optional extra care, but the residents may feel their 
individual requirements are covered by the mandatory pack- 
age. 

Residents should know in advance that many rest homes 
can effectively offer only relatively low levels of care, and that 
such homes are primarily housing, not nursing homes. Some 
residents sell their homes and run down their capital purchas- 
ing optional care services in a rest home, only to discover 
that, eventually, even the mandatory package is no longer 
affordable, and they must leave the home. 

The problem is to reconcile what operators are willing and 
able to provide with what residents want, need, or expect. 
Part of the solution lies in better market information. Certain- 
ly, entry policies, the types of care included in the mandatory 



Life at the Top 113 



package, and available optional services must be made clear 
in writing in advance of entry. 

Operators may define their entry policies in terms of the 
types of care offered, and are under no obligation to accept 
someone whose care needs cannot be met within the home. 
(The Ontario Human Rights Code does not permit discrimina- 
tion on the basis of disability, but entry could probably be 
denied on the grounds that the care needs of a particular per- 
son could not be met in the home.)^ 

Full market information must be available to prospective resi- 
dents before they decide to move into a rest home. (The infor- 
mation must be exhaustive, precisely because the consumer 
may be or is likely to become vulnerable.) Consumers should 
know what housing and care situations await them. They can 
then make informed choices about where they wish to live and 
under what conditions. In effect, we wish to produce a "no-sur- 
prises" scenario, in which intervention is minimally intrusive but 
maximally informative to all involved parties. 

Some operators have argued that "if it ain't broke, don't fix 
it," pointing to the generally good reputation of their industry 
and the lack of widespread complaints or dissatisfaction. ^ We 
hold, however, that public policy should not focus on 
behaviours per se, for behaviours are unpredictable (and 
expensive to monitor). Rather, we prefer to develop stmctural 
conditions that will lead to socially acceptable outcomes. The 
primary purpose of our proposed intervention is to influence 
the bargaining process, not to determine the outcome. This 
intervention must be sufficient to create a system in which 
residents are not dependent on the good will of suppliers. 



5 Rest homes are currently sub- 
ject to the Ontario Human 
Rights Code, and we recom- 
mend they remain so. The 
Human Rights Code requires 
"reasonable accommodation" 
by landlords, and this may 
include physical alterations to 
the building. The boundaries 
of "reasonable accommoda- 
tion" are yet to be deter- 
mined. Whether care needs 
can be met would be argued 
before the Human Rights 
Commission following a com- 
plaint of discrimination on 
the basis of disability. 

6 Consumer satisfaction is a dif- 
ficult concept to measure 
empirically and the Commis- 
sion does not have data in 
this regard. 



The Information Package 



We now consider the information that should be provided to 
all residents and prospective residents, and how that informa- 
tion should be provided. 



114 The Rest Home As Home 



7 The standardized list of ser- 
vices might build upon the 
services that operators indi- 
cated they commonly provid- 
ed in the 1989 rest-home 
study done by the Office of 
Seniors' Issues. 



RECOMMENDATION 27: That comprehensive information 
be provided in writing to each prospective resident of a 
rest home, covering the following: 

1. services available as part of the mandatory package, 
identifying any limitations on their use, and the price of 
the mandatory package; 

2. optional services available from the operators, identi- 
fying any limitations on their availability, and the price 
of each such service; 

3. minimum staffing levels, and qualifications, if any, of 
staff; 

4. details of the emergency-response system, if any, or 
an indication that none is available; and 

5. internal procedures, if any, for dealing with com- 
plaints. 



THE MANDATORY PACKAGE 

To ensure that full information about the mandatory package 
is available, the Commission recommends that an enumerated 
master list of services appear in every rest-home lease, anno- 
tated as to whether each service is included in the mandatory 
package. Any restrictions on the use of services in the manda- 
tory package must be indicated. 

A standardized list of the most common services, prefer- 
ably drawn up with the assistance of the industry association, 
should be used by all rest homes in the province, for ease of 
comparison. 7 



RECOMMENDATION 28: That the lease include a pre- 
scribed standard list on which information is provided as 
to whether each enumerated care service is included in the 
mandatory package, identifying any limitations on its use. 



Life at the Top 115 



Information about the qualifications of the staff and the 
amount of supervision available to residents is important. 
Details of any emergency call system — how it is activated, the 
nature and extent of monitoring, and emergency responses — 
must be identified in the lease. If, for example, an RN is on 
duty on the premises twenty-four hours each day, one can 
assume the care offered is fundamentally different than if an 
RNA is available during the day shift, and the maintenance 
worker may be wakened in case of an emergency at night. 

The response to the emergency system is also important to 
know: will the staff simply phone 911, or is there a more 
comprehensive response? If assistance with medications is 
provided, the minimum qualifications and/or training of the 
staff responsible should be clearly stated. Likewise, the num- 
ber of staff on each shift is important information for prospec- 
tive residents. 8 



8 We recommend in Part III 
mandatory minimum staffing 
ratios'on all shifts. If the 
home has higher ratios, this 
information should be provid- 
ed. 

9 See note 8. 



RECOMMENDATION 29: That detailed information on the 
emergency-response/call system, if any; minimum staffing 
level on each shift; and qualifications of staff be provided 
as part of the lease, or a statement be provided that no 
commitment beyond any legal requirement is made with 
respect to standards for these services. 



Staff qualifications, the extent of supervision, and the emer- 
gency response are particularly important, as these are often 
the primary reasons residents enter a retirement home. 
Numerous complaints in this area have been received by the 
Commission: residents expected higher levels of supervision 
than they received; and staffing on weekends, at nights, and 
on holidays was unacceptably low. Once again we stress that 
provided minimum legal requirements are satisfied,9 operators 
are free to sell any form and amount of staffing and supervi- 
sion that the market will bear. They should indicate, however, 
if ,no commitment is made to employ staff with particular 
qualifications. 



116 The Rest Home As Home 



10 Printed prices represent the 
maximum allowable for each 
optional service, like pub- 
lished hotel rates. Operators 
may, of course, sell optional 
services for less. 



OPTIONAL SERVICES 

Information about the availability of optional services is just as 
important as information about mandatory services. We there- 
fore recommend that operators also complete a standard form 
listing optional services. This form should indicate that each 
service is available as an option on a fee-for-service basis at a 
specified price, or that it is not offered by the home and other 
arrangements with outside suppliers must be made by the res- 
idents. Any service offered but not on the standard list may be 
added, with relevant pricing information. Completion of these 
forms should be required in all rest homes, including those 
receiving domiciliary-hostel funding. 

Residents and operators may contract for optional services 
for any period of time, separately from the lease. (For example, 
they may agree to the provision of a particular care-service 
option at its listed price for one year.) In the absence of a specif- 
ic contract for optional services, the standard list would consti- 
tvite an offer by operators to sell services to residents at a certain 
price. The list may offer various pricing alternatives and may 
impose limits (minimum or maximum) on the amount that may 
be purchased. 

The standard list or rate sheet for optional services must be 
posted prominently within the home or provided on a printed 
form, available to anyone on request. i" This requirement will 
not only give complete information to potential residents but 
also protect current residents who wish to buy additional ser- 
vices: publicly posted prices will establish a ceiling for a given 
service, and should lessen the tailoring of prices to take 
advantage of the vulnerability or dependence of individual 
residents. 



RECOMMENDATION 30: That information about and 
prices for optional services provided by operators be readi- 
ly available on a prescribed standard form list. This list, 
completed by the operator, must be posted publicly in the 
rest home or available on request. 



Life at the Top 117 



Operators cannot withhold posted pricing options from partic- 
ular persons as their use patterns change. Operators may 
remove any option entirely when a new list is prepared; how- 
ever, as long as an option is presented as available every resi- 
dent must be free to purchase it.^i 

RECOMMENDATION 31: That operators not be permitted 
to withhold any optional service or its posted price or 
charging method from individual residents. 

Although we do not recommend direct control of prices for 
optional care services purchased on a fee-for-service basis, 
purchasers must be aware of pricing trends so they can make 
informed choices. Some homes have a history of stable and 
modest price increases; others tend towards dramatic price 
rises. Consumers should be informed of these histories. The 
Commission is therefore recommending that the posted price 
list for optional services also indicate, for each service, the 
average annual increase in per unit price during the previous 
two years (or since inception if it is a newer operation). 



11 That is, the operator cannot 
sell an unlimited-use option 
as long as actual use is low, 
but require a resident to pur- 
chase on a fee-for-unit-of- 
service basis when usage 
increases. This recommenda- 
tion should respond to a fre- 
quently heard complaint that 
services such as a meal tray 
in bed are provided gratis on 
an occasional basis, but when 
particular residents' needs 
become greater, a charge is 
levied on those persons. 



RECOMMENDATION 32: That the price list include details 
of price increases for each optional service during the pre- 
vious two years. 

Residents must also have up-to-date information on their cur- 
rent account with the retirement home. They may, for exam- 
ple, be aware that a particular optional service is provided 
only at additional cost, while not fully appreciating the cumu- 
lative cost of regular usage. Residents should sign a receipt for 
each optional service. 



RECOMMENDATION 33: That each resident shall sign a 
receipt for each optional service and shall receive on a 
Weekly basis an enumerated statement of optional or addi- 
tional charges incurred during the preceding seven days. 



118 The Rest Home As Home 



12 If a resident is unable to sign, 
some other arrangement 
acceptable to both operator 
and resident (or guardian) 
may be specified in writing 
and in advance. 

13 Services sold on a debundled 
basis will be subject to the 
Goods and Services Tax; the 
mandatory package is appar- 
ently exempt. However, we 
cannot alter our recommen- 
dations to facilitate exemp- 
tion from the GST, although 
operators may wish to con- 
sider tax liability when decid- 
ing what and how to sell. 



Copies of the receipts should be attached to a weekly state- 
ment. 12 Frequency of collection of these charges can be nego- 
tiated privately between the parties, but the information must 
be provided weekly. 



PRICE INCREASES 

Many homes currently specify that all prices will be fixed for a 
period of one year from the date of entry. This is highly com- 
mendable and helps ensure a "no-surprises" scenario for the 
settling-in period. 

The Commission has previously recommended that any 
care service that is part of the mandatory package be subject 
to the same protections as accommodation; otherwise, there 
will be a strong incentive to evade the intent of rent control 
through excess increases in the charges for mandatory care 
services. However, we do not recommend that optional care 
services be subject to rent or price control. 

There are obvious implications to this approach: if the price of 
the optional care package is uncontrolled, operators who wish to 
be outside the rent-control system will debundle as many care 
services from the mandatory package as is possible. Services sold 
on a user-pay basis will be exempt from rent control; the same 
services, sold as part of the mandatory package, will be covered. i3 

Some operators might choose to offer a low-priced manda- 
tory package, including few or no services, and high-priced 
optional care services for which prices will be free to rise. 
Residents would then be likely to expect high quality in the 
optional services provided, and to express displeasure if they 
did not get their money's worth. As the services are optional, 
residents would be free to seek alternative suppliers. More- 
over, if homes offered vastly different cost breakdowns, such 
information would be a useful guide to potential consumers 



Life at the Top 119 



(and advocates) to what might be expected in different settings. 
Any data greatly out of line may also alert potential residents to 
business practices in that particular setting. 

Timing 

Although price increases for the optional services would not 
be controlled, some measure of stability would be needed. 
Although formally designated as optional, certain services may 
be vital to residents' daily living. The freedom to refuse ser- 
vices when prices increase may be severely limited, particular- 
ly in the absence of community-based alternatives. In addi- 
tion, the Commission recognizes that vulnerable persons typi- 
cally change their place of residence only with great reluc- 
tance. 

As well, residents have expressed frustration at being 
"nickel-and-dimed to death" by small but frequent increases in 
individual care-service prices. None of these increases may be 
excessive, but the cumulative effect may be a substantial over- 
all rise, in excess of what residents wish or are able to pay. 

In recommending an approach to the timing of price 
increases for optional services, we face a tradeoff between 
flexibility for individual operators and the need for vulnerable 
residents to anticipate future costs and to avoid the need to 
repeatedly change their place of accommodation. We are also 
influenced by the lack of practical choices for residents pur- 
chasing certain optional care services. Residents may face 
annual increases for the allowable rent growth, plus 3 percent 
for capital or extraordinary operating costs, as well as cost 
increases for optional services; thus, the total annual increase 
for residents reliant on many optional services may be high. 

RECOMMENDATION 34: That price changes to the list of 

optional services be permitted only at six-month intervals. 

In addition, optional services may be withdrawn from all 

'residents only at six-month intervals. Tenants must be noti- 



120 The Rest Home As Home 



fied in writing ninety days in advance of any increase in 
optional service prices or of termination of any optional 
service. 

As prices may increase or the services terminate while a fixed 
term lease is in effect, residents may face significant increases 
in the prices of optional, but vital services, while tied to an 
annual lease. Therefore, we recommend that the Landlord 
and Tenant Act (LTA) contain a provision permitting residents 
to terminate a fixed-term lease if the prices of optional care 
services that they use are increased, or if the service is termi- 
nated during the term of their lease. Proper advance notice of 
the resident's intent to depart would be required, in accor- 
dance with the LTA. If operators did not increase the price of 
optional care services used by a particular resident or with- 
draw them during the term of the lease, the escape provision 
would not be applicable. 

Under the LTA, residents on a month-to-month lease may 
terminate a lease on the last day of any month of the tenancy 
provided that they give sixty days' notice. Therefore, month- 
to-month tenants would not need the escape clause: they 
would have at least thirty days to decide whether to pay the 
higher prices or seek a new home. 

RECOMMENDATION 35: That the Landlord and Tenant 
Act contain an "escape clause" for residents of rest homes 
permitting them to terminate fixed-term leases with notice 
if an optional service that they use is withdrawn or the 
price of an optional service they use is increased during 
the term of the lease. 



CHANGING THE MANDATORY PACKAGE 

We have already indicated that operators may not change the 
composition of the care-services part of the mandatory pack- 



Life at the Top 121 



age for individual residents. However, operators may vv^ish to 
make such alterations for all residents; for example, they may 
wish to save money by replacing twenty-four-hour RN avail- 
ability with that of an RNA; or they may wish to respond to 
increased need or competition in the marketplace by institut- 
ing a new twenty-four-hour RN service for all residents. They 
may want to change a mandatory-package service into an 
optional extra, payable on a fee-for-service basis; or they may 
want to incorporate an optional extra into the mandatory 
package. 

In a landlord-and-tenant relationship governed by the LTA 
and the proposed RCA, neither party may unilaterally alter the 
tenancy agreement, i.e., the composition or cost of the 
mandatory package. Thus, operators would be permitted to 
make such changes only in accordance with the applicable 
law. 

Should operators wish to enrich the mandatory package 
without charge or consent, the addition is unlikely to be 
resisted by residents. However, should operators wish to 
increase the cost of the mandatory package to reflect this 
upgrading, such increases in cost must be fully subject to rent- 
control guidelines. Operators may wish to absorb these higher 
costs within the annual guideline, which applies to both the 
accommodation and care-services portion of the mandatory 
package. 

We recommend that operators be permitted to base an 
application for a rent increase (3 percent above guideline) for 
all units based on the cost of new or upgraded mandatory 
care services. This will require an amendment to the proposed 
RCA. 

RECOMMENDATION 36: That costs incurred in providing 
new or enriched care services in the mandatory package of 
registered rest homes be allowable expenses in calculating 
the "3 percent above-guideline" increase under the pro- 
posed Rent Control Act, 1991. 



122 The Rest Home As Home 



14 For example, if the operator 
wishes to make an entire 
building wheelchair accessi- 
ble, such costs may be 
applied for under the pro- 
posed RCA within the 3 per- 
cent above-guideline ceiling 
for eligible capital expendi- 
tures. 

15 A downgrading of the manda- 
tory package while keeping 
the price constant would, of 
course, be equivalent to a 
price increase. 

16 Unilateral alterations to the 
tenancy agreements are not 
permitted under rent control 
and the LTA. 

17 In addition, residents who 
choose to remain despite the 
reduction in services could 
oppose any eviction applica- 
tion brought by the operators 
thereafter. Paragraph 
121(3)(a) of the Act prohibits 
the court from terminating a 
tenancy if the landlord is in 
breach of a material covenant 
in the tenancy agreement (a 
term of the contract important 
in the circumstances). 



Such an enrichment of the mandatory package may result in 
higher costs to the residents, even if the "improvement" was 
not wanted. The situation is analogous to that in which the 
landlord of a conventional apartment wishes to upgrade the 
common facilities. i"* 

Downgrading of the mandatory package is more trouble- 
some, for lower "rent" may seem inadequate compensation. 
Individual residents may enter a specific rest home precisely 
because of the security offered by a certain service. This per- 
ceived security would not readily be offset by a monthly 
charge reduced by a few dollars. ^5 

Operators should be able to alter the composition of the 
mandatory package in response to competitive or fiscal pres- 
sures, provided that the interests of tenants are appropriately 
protected. However, when operators reduce services provided 
in the mandatory package, they breach their leases with the 
residents. 16 Such breach of contract gives residents three 
options for remedy. 

First, residents can seek a reduction of rent because ser- 
vices have been discontinued or reduced (RCA, section 26). 
The rent officer may permanently reduce the maximum rent 
chargeable, temporarily reduce the rent being charged, or 
order that the rent not be increased for a designated period of 
time. 

Second, under section 113 of the LTA, residents can 
request that the lease be terminated or the rent lowered to 
compensate for the reduction in services. The court can order 
a temporary or indefinite rent rollback. Termination of the 
lease would likely be granted only if the service reduction 
were a significant breach of the tenancy agreement.!^ 

Third, residents can seek common-law remedies for breach 
of contract, i.e., damages or an order for the operators to do 
what they contracted to do (specific performance). The latter 
remedy is rarely granted; courts have proven unwilling to 
monitor private relations to the extent of ensuring that a party 
performs and continues to perform particular contractual 



Life at the Top 123 



duties. Therefore, a court is unlikely to order operators to 
restore the discontinued service; however, it would likely 
order the payment of ascertainable damages. 

All the above remedies depend on the initiative of resi- 
dents, and asserting them requires time and money. The 
expense, complexities, and inconveniences inherent in all 
legal proceedings would ensure that disputes about reduc- 
tions would be limited to services important to residents. 

This Commission therefore does not feel it necessary to 
make recommendations with respect to reduction of mandato- 
ry services. When the reduction is trivial in nature, no legal 
consequences are likely to follow. Where the reduction is sig- 
nificant, residents have remedies available under present law. 



Related Matters 



ACCESS TO SERVICES 

One of the most efficient checks on potential abuses of pric- 
ing power is the competition of the marketplace. If residents 
are aware that alternative suppliers of services exist and that 
they can access them, marketplace competition is likely to 
operate in the residents' interest. 

Residents can also decline any or all outside suppliers in 
favour of purchasing services from the operators or the opera- 
tors' "preferred" supplier, even if comparable government or 
community services are available without fee. The only 
requirement is that residents know the options and make 
informed choices. 

It would be useful to have printed information setting out 
community-delivered services available to the public at large. 
Residents would then be able to make informed choices 



124 The Rest Home As Home 



according to their preferences and priorities. By using com- 
munity-based services now available (and those that will, in 
the future, be provided through the long-term-care system), 
residents could delay or prevent running down their financial 
assets and, eventually, being forced to move from the resi- 
dence. 

RECOMMENDATION 37: That appropriate community 
information services be funded by the government to col- 
lect and distribute information on the availability of com- 
munity-based services for vulnerable adults. 

Some operators now sell optional services that a resident 
could receive without charge through an agency such as 
Home Care. It is not the operators' responsibility to inform 
residents of their eligibility for Home Care or other communi- 
ty services; this task should properly fall to an advocate, case 
manager, or the residents' doctors. However, operators may 
be required to distribute information about available alterna- 
tive services that come to residents, just as they must dis- 
tribute residents' mail unopened. 

As well, operators of rest homes cannot deny or impede 
access to community-based or other outside services (includ- 
ing Home Care). Nor can operators charge fees to permit the 
delivery of portable services, unless a direct outlay is required 
of them. 

Coverage of the premises under LTA will give outside sup- 
pliers a right of entry, when invited by a tenant. The setting 
provided to an outside supplier must be comparable to that 
available for an in-house service. 

RECOMMENDATION 38: That operators not be permitted 
to deny or impede access to the rest home by any outside 
service providers requested by the resident, that use of the 
premises must be given on terms no less advantageous 
than those under which the operators deliver the same or 
similar services, and that no fee be charged to outside sup- 



Life at the Top 125 



pliers for entry, except to defray or offset direct costs to 
the operators. 

"An outside provider" encompasses both private and non- 
profit suppliers, including traditional care-providing profes- 
sions and any alternatives (such as homeopathy, naturopathy, 
acupuncture, etc.) that a resident may choose. i^ Residents 
have a clear right to maintain their own medical doctor or 
other service provider; operators may not pressure residents 
to use the services of the house doctor. 

It is the residents' right to choose any service available 
from Home Care, other community agency, or private market 
source over any optional service offered by operators. i9 

RECOMMENDATION 39: That no residents be required or 
coerced to purchase optional services from any named ser- 
vice provider (including the operators or the house doctor) 
over suppliers of their own choice. 



18 Provided only that there are 
no externalities — interference 
with the rights of other resi- 
dents — no restrictions may be 
placed on whom residents 
wish to have visit them. 

19 Once rest homes are under 
the LTA and the proposed 
RCA, operators will be 
unable to require residents to 
purchase any optional service 
from any particular provider 
(including themselves) as a 
condition of continued resi- 
dence. 

20 See discussion on long-term 
care, chapter 3 and Recom- 
mendation 3- 



Because a rest home is the residents' home, residents are eli- 
gible for all community services delivered by agencies such as 
Home Care. Just as these services can enable people to stay in 
their own homes longer — perhaps indefinitely — so, too, can 
they offer stability to residents of a rest home. 

At present, some agency services for people in their own 
homes are effectively denied to residents of rest homes. 
Because the demand for these services exceeds the supply, 
administrative rationing occurs. Many service providers pre- 
suppose that residents of rest homes automatically receive 
care at the home; therefore, they are not a priority for limited 
community-based services. 

Such a view is unacceptable. It is the Commission's posi- 
tion that residents of rest homes must have all the rights of 
community residents. They must therefore qualify for commu- 
nity-delivered services on exactly the same basis as persons 
living in their own homes. ^o 

As the long-term-care project develops, the shortage of 



126 The Rest Home As Home 



21 A senior with OAS/GIS/GAINS community services for individuals in their own homes should 
has a minimum monthly 
income of $900, with which ^^^^ somewhat. In the interim, rationing is inevitable, but not 

to find alternative accommo- the systematic exclusion of residents of rest homes, 
dation. 

RECOMMENDATION 40: That Home Care and other com- 
munity-based agencies consider residents of rest homes to 
be equally eligible for their services as anyone else in the 
community, i.e., they may not discriminate against individ- 
uals on the basis of their residence in a rest home. 



DEPARTU RE 



One retirement home visited by the Commission had, until 
very recently, a policy prohibiting wheelchairs and/or walk- 
ers, and was promoted and advertised as a community for the 
well elderly. At a certain stage of decline, residents were 
expected to leave the community. (It is our sense that policies 
requiring departure solely on the basis of physical decline 
contravene the Human Rights Code. In any case, competitive 
pressures to fill spaces in rest homes appear to be ending 
such practices.) 

Usually residents live at their rest home until they require 
more care than can be obtained in the home. They could not 
be required to leave except as provided in the LTA, e.g., if 
they have used up their capital and can no longer pay the 
rent, they must move out. Even should this happen, they can- 
not be immediately evicted to the street. The LTA provisions 
for eviction for non-payment of rent would have to be fol- 
lowed. 

Operators have no ongoing obligation to residents once 
the rent cannot be paid, nor does the state have any obliga- 
tion to maintain them at the same level of accommodation, as 
it was their free decision to spend their money on this type of 
housing. Regrettably, such persons have to leave the rest 
home, probably for a lower overall standard of living. 21 



Life at the Top 127 



It is in everyone's interest to anticipate these outcomes as 
early as possible. Landlords have a right to investigate the 
creditworthiness of potential residents, and under the LTA 
they can ask for the last month's rent in advance. If it appears 
that an individual resident will have to leave the home, depar- 
ture should be planned. ^^ 

The unanticipated early departure of residents creates 
problems for both residents and operators. Operators have the 
right to notice under the LTA.^^ (For reasons of good will, they 
may not insist on enforcing this advance notice provision, 
although they have a right to do so.) Under the LTA, operators 
must make a reasonable attempt to re-let the premises, there- 
by mitigating the damages. Departing tenants (or their estates) 
have the right to sublet or assign; once the premises are re-let, 
the tenants' financial obligations are at an end. 

At present, operators may have no incentive to rent vacat- 
ed premises if there are other vacancies in the building, as the 
rent is guaranteed for the vacated unit. To offset this possibili- 
ty, we recommend that the rental of the first available unit of 
the type and price vacated be deemed equivalent to a sublet, 
thus freeing the departing tenants (or their estates) from fur- 
ther financial obligation. 



22 In some cases, departure can 
be delayed or made unneces- 
sary by the provision of 
portable community-based 
services to the resident within 
the home. 

23 The Act requires sixty days' 
advance notice by a tenant 
plus any unexpired portion of 
a third month, if the tenancy 
is monthly. If the tenancy is 
annual, the financial obliga- 
tion continues until the end 
of the year. As with any other 
residential accommodation, 
this continuing financial obli- 
gation would also apply in 
case of the death of the resi- 
dent, with the ongoing 
responsibility borne by the 
estate. 

24 The situation is perhaps anal- 
ogous to referrals to a medi- 
cal laboratory. Doctors are 
prevented from owning such 
facilities to avoid the possibil- 
ity of conflict of interest. 



RECOMMENDATION 41: That rental of the first unit of 
the type vacated by a departing resident ends the financial 
liability of the departing tenant or estate. 



TIED SELLING 
OF INTEREST 



AND CONFLICT 



Overlapping ownership can have adverse effects on the inter- 
ests of residents and the broader public. Physicians, psycholo- 
gists, or lawyers who own rest homes to which they may refer 
clients have a financial interest in ensuring that all beds are 
filled, irrespective of the needs of individual patients. 24 The 



128 The Rest Home As Home 



Commission is not suggesting that inappropriate referrals are 
made, but rather that the potential exists; and the public inter- 
est is best served by minimizing the possibility of conflict of 
interest. 

The Commission received a submission from a person 
concerned about overlapping ownership in his community 
and the possibility of inappropriate referrals by the local 
doctor. Another submission raised the difficulties of bringing 
action against a rest home when the local physician, who 
might have provided expert information on his patient's 
condition, was the defendant by virtue of his ownership of 
the premises. 

A few days later, we received a letter from a medical doc- 
tor in a different part of the province, describing how he had 
tried for some time to persuade anybody to establish a need- 
ed care facility in his community. Eventually, out of frustra- 
tion, the doctor had begun such an operation himself. 
Although his motives are clearly exemplary, the outcome is 
unacceptable in public-policy terms: once a facility is estab- 
lished, there is a strong financial incentive to ensure full occu- 
pancy. There is also a potential conflict of interest in serving 
the residents as physician and owning the home. 

RECOMMENDATION 42: That no lawyers, social workers, 
or persons regulated under the Regulated Health Profes- 
sions Act, 1991 be permitted to have any professional rela- 
tionship with residents in a rest home in which they have 
or their immediate family has a financial interest. 

Any persons in contravention of this recommendation, at the 
time it is enacted, should be exempted for a specified period 
of years. 

A further problem arises when operators serve as trustees 
for residents. The potential for financial abuse is great 
because trustees may sell or rent residents' previous homes, 
and substantial sums of money may be involved. 



Life at the Top 129 



Under the proposed Substitute Decisions Act, 1991, certain 
persons, including rest-home operators, would be precluded 
from being appointed guardians of either the persons or the 
property of incapable residents of a rest home. Operators 
would also be excluded from witnessing the signatures of 
rest-home residents on a continuing power of attorney for 
property or person. The Commission believes that these 
exclusions should be extended to include the spouses and 
children of rest-home operators. 



25 The power imbalance 

between operators and resi- 
dents may lead to fear of 
recriminations if residents' 
unhappiness is expressed too 
vocally or frequently. A num- 
ber of submissions to the 
Commission have indicated 
that this is a major concern to 
seniors, and a major inhibi- 
tion of their theoretical rights 
to satisfaction as consumers. 



RECOMMENDATION 43: That subsection 10(2), section 
24, and subsection 54(1) of the proposed Substitute Deci- 
sions Act, 1991 be amended to exclude the immediate 
family of rest-home operators from being witness to a con- 
tinuing power of attorney by a rest-home resident, and 
from being appointed by a court as the guardian of the 
person or property of an incapable person who resides in 
the rest home. 



COMPLAINTS AND UNDELIVERED 
SERVICES 



Consumer dissatisfaction with services and their delivery in 
rest homes is broadly based and wide ranging — from the poor 
quality of the food, to being left too long in a bath (which is 
also too hot), to programs and services promised but not 
delivered. 

When basic safety is at risk, a public response must be 
mandatory and fast. (Some ways to ensure such responses are 
discussed in Part III). Beyond basic safety, however, the issues 
become more fraught. 

There are informal mediative mechanisms as well as more 
formal remedies. Mediation is often a preferred option 
(although mediators must always be sensitive to systemic 
power imbalances). 2^ A request, formal or informal, that a 



130 The Rest Home As Home 



problem be redressed will often resolve matters satisfactorily. 
Because the residents may feel vulnerable, a third party may 
raise the issue on the residents' behalf. A residents' council, if 
one is in place, may resolve matters, or operators may wish to 
establish an impartial adjudicative mechanism. This might take 
the form of a home ombudsman, who is outside the system 
but acceptable to all parties, or informal third-party arbitra- 
tion, in which each side appoints one member, who together 
choose a chair. The Ontario Long-Term Residential Care Asso- 
ciation (OLTRCA) has an informal grievance-resolution mech- 
anism that may also be appropriate in some cases. 

RECOMMENDATION 44: That informal mediation be pur- 
sued as a "first-line" response to disputes within a rest 
home whenever possible. 

Informal dispute resolution takes many forms, and it would 
be inappropriate for the Commission to mandate a specific 
approach. By its very nature, mediation requires good will 
and a readiness to compromise, and such an attitude cannot 
be legislated. 

We also urge that the industry consider a fast, informal, 
and effective ombudsman system. The costs of such an 
approach should not be extensive and could be shared by a 
small levy on each participating bed, or from the registration 
fees levied by the industry associations. 

RECOMMENDATION 45: That the rest-home industry con- 
sider adoption of an ombudsman system for fast and infor- 
mal resolution of disputes. 

We also recommend that each home identify in writing what 
dispute-resolution mechanism it adopts, if any, or that none is 
in place. This information should be part of the information 
package if there is one, and should be available in advance 



Life at the Top 131 



on request. If a home chooses not to commit itself in advance 
to a particular mechanism, potential residents will understand, 
before moving in, that grievances will have to be redressed 
on an informal ad hoc basis or through formal procedures. 

RECOMMENDATION 46: That operators indicate in writ- 
ing in advance any voluntary adjudicative procedures they 
are prepared to adopt. 

Mediation may not be attractive to some residents; they may 
prefer recourse to the courts or other formal procedures. This 
right must be protected. The formal remedies available to a 
resident obviously include all avenues offered to the general 
public. If a mandatory service is promised but not delivered, 
residents may seek the remedies available in the LTA, the 
RCA, and the common law. In the case of optional services, 
residents may wish to pursue contractual remedies, perhaps in 
small-claims court. 

To the extent that grievances reflect a vague, ill-defined 
dissatisfaction rather than a specific, concrete issue, there may 
be little operators can do to satisfy residents. Ultimately the 
residents' responses are subjective. The real issue may be that 
the residents are simply unhappy in that particular setting. 
The only solution may be for residents/consumers to take 
their money elsewhere. The Commission understands that 
moving is not a pleasant prospect for frail and elderly per- 
sons; however, when all other options are exhausted, it is 
appropriate and necessary for consumers to exercise their 
financial power, however difficult moving may be. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^ 

7 

Life Near the Bottom 



1 Paragraph 1(1 )(j) of the Regu- 
lations defines a "hostel" as 
"any place of board or lodging 
maintained and operated by a 
municipality or the council of 
an approved band or by a 
person or organization under 
an agreement with a munici- 
pality, the council of an 
approved band, or the 
Province of Ontario, for needy 
persons ..." 

2 All social-assistance rates in 
this chapter are those in effect 
in October 1991. 




any rest homes — those that we describe as 
boarding or lodging homes — primarily accom- 
modate people with low incomes. Some resi- 
dents receive social assistance under para- 
graph 12(3)(b) of the General Welfare Assis- 
tance Act ( GWAA) Regulations. Under these 
"hostel provisions, "1 a municipality may contract with private 
(for-profit or non-profit) operators to deliver accommodation, 
meals, and, usually, limited care services to individuals "in 
need," as determined by the GWAA needs test. Operators 
receive a per diem payment from the municipalities up to a 
provincially determined maximum (currently $33-40 per day 
or approximately $1,015 per month). - 

Participation by municipalities in the hostel program is 
optional: if they choose to participate, they are required to 
enter into a contractual agreement with each operator, but 
there are no provincial guidelines governing the content of 
such agreements. 

Some rest-home residents may be on social assistance, but 
not funded through the hostel provisions. Those considered 
to have "disabilities," which includes many persons dis- 
charged from psychiatric hospitals as well as persons with 
psychiatric and/or developmental disabilities, are supported 
under GAINS(D) [Guaranteed Annual Income System — Dis- 



132 



Life Near the Bottom 133 

Table 7 

Housing and Income Options for Single Adults on Social Assistance, October 1991 



Housing Category 



GWA 



Social-Assistance Payment 
GAINS(D)/FB 



1. Room and Board^ 



2. Renter 




Basic Allowance 


$241 


Shelter Allowance: 




Basic 


$120 


Shelter Allowance: 




\/ariable2 


$0-265 



3. Domiciliary Hostels3 



$491 (max. 



$361-626 



$1,015 (max. 



$501 

$120 

$0-265 



$688 (max. 



-► $621-886 



N/A 



1. These rates include a mandatory Special Boarders' Allowance of $50 (effective August 1991) to meet personal requirements. 

2. The variable shelter allowance is paid to all renters with shelter costs in excess of the basic amount ($120), to a ceiling of $265, regard- 
less of actual shelter costs. The Ministry of Community and Social Services estimates that about one-third of all recipients who receive 
the renter rate pay rents above the ceiling. 

3. Participation in the hostel program is optional for municipalities. Payment is made directly to operators. In addition, residents receive a 
personal-needs allowance of $112, which is paid to the operators. 



abled]. (This is referred to as Family Benefits (FB) or simply 
"disability pension.") Their current income is a maximum of 
$688 per month (under the room-and-board rate). Others 
receive assistance under the municipally delivered GWAA, 
with a maximum monthly payment of $491 (room-and-board 
rate).-"^ 

Some seniors also live in rest homes: often their only 
income is the basic Old Age Security (OAS) plus federal and 
provincial supplements.^ The total with maximum supple- 
ments is $899.97 per month; none of this depends directly on 



General Welfare Assistance 
(GWA or GW) is intended as 
short-term assistance and is 
delivered by municipalities 
who exercise discretion over 
many of its terms and condi- 
tions (within provincial 
guidelines). Family Benefits 
is intended to support per- 
sons with longer-term need, 
and is delivered by the 
province; rates and condi- 
tions are constant across 
Ontario. Many vulnerable 
persons first receive GWA; 



134 The Rest Home As Home 



those without disabilities may 
remain on GWA unless they 
become "permanently unem- 
ployable" or reach sixty years 
of age. They then may qualify 
for GAINS(D), which operates 
within Family Benefits. The 
three categories of benefits 
under GAINS(D) are: perma- 
nently unemployable (PUE); 
disabled; or sixty to sixty-four 
years of age. 

The Canada Assistance 
Plan (CAP), passed in 1966, is 
the major piece of federal leg- 
islation in the field of social 
assistance. Eligible costs are 
shared fifty-fifty with the 
provinces, and in Ontario, 
GWA spending is shared fifty- 
thirty-twenty by the 
federal/provincial/municipal 
governments. Provinces (or 
municipalities) initially decide 
to make CAP-eligible expendi- 
tures, and until recently, there 
was no overall ceiling on fed- 
eral matching payments. 

In the 1990 federal budget, 
the government announced it 
was imposing a 5 percent 
ceiling on the growth of CAP 
payments to Ontario, Alberta, 
and British Columbia for two 
years: this is the "cap on 
CAP." In the 1991 budget, the 
federal government 
announced that it would con- 
tinue the "cap on CAP" for an 
additional three years (i.e., 
until 1995-96). The legality of 
the federal action, challenged 
by the provinces, was upheld 
by the Supreme Court of 
Canada in September 1991. 

The effect of the ceiling is 
to increase the provincial 
share of total program costs 
and to decrease that of the 
federal government: in 
1991-92, the 5 percent restric- 
tion is expected to reduce 
Ontario revenues by $1.3 bil- 
lion, converting a fifty-fifty 



the type or location of the recipients' housing: seniors may 
use their income to purchase accommodation in a rest home 
or for any other purpose they choose. 



"Non-hostel" Accommodation 

Much of this chapter focuses on the hostel "system." Initially, 
however, we consider accommodation that is not funded 
under the hostel, pro visions. 5 If not assisted under these provi- 
sions, non-senior rest-home residents will receive their social 
assistance under the GAINS(D) or General Welfare Assistance 
(GWA) "room-and-board" rate. The alternative to a rest home 
is accommodation-only rooming houses, for which one 
receives support at the "renter" rate.^ (See Table 7.) 

The rents paid by those receiving the room-and-board or 
the "renter" rate are private-market transactions between pro- 
prietors and renters. Oral presentations before the Commis- 
sion reported that room-and-board rates often begin around 
$300 per month and go up to and occasionally exceed the 
gross monthly income of persons on social assistance. ^ There 
is no legal requirement that boarders have any money left 
after paying rent; indeed, rents exactly equivalent to the 
GAINS(D) cheque were the norm in at least one community 
we visited. Proprietors might, on a purely voluntary basis, dis- 
pense to residents small amounts of money — perhaps $10 per 
month for bus fare or cigarettes. ^ 

The amount of rent charged in rest homes seems to bear no 
systematic relation to supply and demand in local housing mar- 
kets. In some cases, rents are virtually determined by social- 
assistance levels; limited only by rent-control ceilings where 
applicable, every dollar increase in benefits is passed through in 
higher rents, even when there is excess available accommoda- 
tion. Such rents appear to reflect the power imbalance between 
proprietors and renters rather than housing-market conditions. 9 



Life Near the Bottom 135 



Some rents reflect supply and demand within a specific 
subset of the housing market: poor-quaHty accommodation 
must often be shared among adults on social assistance who 
are unacceptable to many landlords. In still other cases, rents 
are set by some community norm, blending what is "tradition- 
al" and what is "fair": these situations tend to be found where 
rents are lower, communities smaller, and operators less 
entrepreneurial. 



MORE MONEY FOR SOCIAL ASSISTANCE 

"Social assistance rates are too low." This is, of course, the 
most common criticism of the entire system; and because of 
the huge cost involved, it is most difficult to rectify. Neverthe- 
less, we accept the basic point: social assistance is seriously 
underfunded and benefit levels are too low. The Social Assis- 
tance Review Committee (SARC) and Back on Track have doc- 
umented this persuasively. In the rest-home context, as room- 
and-board rates often leave no surplus for the personal needs 
of residents, there have been calls for blanket increases in the 
payment schedule. Although we shall highlight certain specific 
elements of the social-assistance system, we have fundamen- 
tally little to add to the adequacy debate. 

Given that social assistance has been chronically under- 
funded, the speed of redress can never be fast enough and 
short-term increases can never be adequate. However, we are 
encouraged by and supportive of the initiative undertaken by 
the previous government, and continued by the present gov- 
ernment, to re-examine the entire social-assistance system, 
particularly its adequacy. 

RECOMMENDATION 47: That current initiatives to increase 
the adequacy of social-assistance payments, to vulnerable 
adults in particular, continue at the maximum speed possible. 



federal/provincial agreement 
to a seventy-two-twenry-eight 
plan. 

4 A single .senior receives the 
basic OAS of $373-32 (Octo- 
ber 1991). The federal Guar- 
anteed Income Supplement 
(GIS) can raise the total as 
high as $816.97; and the 
Ontario supplement adds an 
additional $83 per month. 
OAS is a universal entitle- 
ment; the two supplements 
are based on a test of income. 
None of the income under 
OAS and the two supple- 
ments is considered to be 
social assistance. 

5 Some municipalities choose 
not to use the hostel provi- 
sions of GWA. In communi- 
ties that do participate in the 
hostel system, not all rest 
homes are funded as hostels, 
and not all beds will be con- 
tracted in any premises. 

6 The major differences 
between room-and-board and 
"renter" accommodation are 
that the former offers a room 
and, usually, three meals; the 
rooming house ("renter") pro- 
vides accommodation only, 
with or without access to 
shared kitchen or cooking 
facilities. Rest-home accom- 
modation is funded under the 
room-and-board rate; renters 
receive accommodation only 
and are responsible for their 
own meals and other needs. 

7 Note the example of the 
woman with developmental 
disabilities cited in the pro- 
logue. 

8 The cost of accommodation 
in rooming houses appeared 
to fall in the $20(>-$450 range. 



136 The Rest Home As Home 



With a GAINS(D) cheque 
between $621 and $886 (the 
renter rate), $300-$400 a 
month would remain for food 
and other necessities of life. 
On a monthly GWA payment 
of $36l-$626 (renter rate), 
there would be little, if any, 
money remaining after the 
rent was paid. 

9 As social-assistance-reform ini- 
tiatives have discovered, it is 
difficult to devise a payment 
system that will ensure that 
any specified sum (such as 
the Special Boarders 
Allowance) can be retained 
by renters. 

10 As of September 1991, there 
were 30,923 boarders on 
GAINS(D)/FB. Shifting board- 
ers (maximum $688) to the FB 
renter rate (maximum $886) 
yields a maximum monthly 
increase per person of $198, 
or approximately $6 million 
increase in total. In addition, 
there were approximately 
14,000 boarders on GWA dur- 
ing that month. 

11 More funds may ultimately 
translate into increased sup- 
ply; but, in the short term, the 
clear and predictable outcome 
is higher rents. 

12 Under paragraph 12(3)(b), 
authority is given to the direc- 
tor of Income Maintenance to 
determine the cost "of provid- 
ing the applicant or recipient 
with board and lodging in the 
hostel and with personal 
needs." 



During the public consultation, one municipal official suggest- 
ed the straightforward abolition of the room-and-board cate- 
gory of social assistance; current recipients would be raised to 
the renter rate. Assuming the 31,000 persons now at the 
room-and-board rate were placed at the maximum point on 
the renter scale, social-assistance costs would increase by $6 
million per month. lo 

We have one fundamental difficulty with this suggestion: 
there is no assurance, or even likelihood, that the increased 
social-assistance payments would remain in the hands of resi- 
dents. In a tight housing market, any new money translates 
into higher rents, as a way to ration the available supply. ii 
The same process is likely to occur even in a loose housing 
market: residents often lack the skills, information, and mobil- 
ity to take advantage of the better housing that should 
become accessible with higher levels of income. Thus, there is 
little incentive for operators to use the higher payment to 
improve the quality of housing or lifestyle of the residents. 
Increased benefit levels are likely simply to translate directly 
into higher income for operators. 

We are not suggesting that more money in the system is 
not desirable or even essential. However, in this time of eco- 
nomic restraint, we cannot recommend large blanket increases 
in monthly payments without clear assurance that the funds 
would be retained by the intended recipients. 



Hostels 

In some communities, hostel accommodation is available, 
funded under the GWAA Regulations. i- There are two types of 
hostels in Ontario: emergency (or transient) and domiciliary 
(or long term). 



Life Near the Bottom 137 



EMERGENCY HOSTELS 

There are approximately 4,300 emergency-hostel beds in the 
province, of which 2,300 are in Metro Toronto. ^^ The emer- 
gency hostels, all of which operate on a non-profit basis, 
include special-purpose facilities for designated target groups, 
such as battered women, as well as general facilities offering 
temporary (including overnight) accommodation, i'^ 

It had been the intention of this Commission to exclude 
emergency hostels from the Inquiry as our focus is less on 
overnight than on long-term housing. However, as the econo- 
my deteriorates and homelessness and unemployment 
increase, some emergency shelters have become short-term 
and even long-term accommodation. Thus, our recommenda- 
tions are intended to apply to permanent accommodation, 
regardless of how it is labelled or funded. 1 5 



DOMICILIARY HOSTELS 

Domiciliary hostels emerged in Ontario after proclamation of the 
1972 Nursing Homes Act. Some nursing homes could not meet 
the new standards, and municipalities were given permission to 
fund them as hostels under the GWAA. Their function was to 
deliver ongoing care to resident seniors requiring less than nine- 
ty minutes of daily nursing care. At its outset, the funding was 
exclusively for frail elderly persons; adults discharged from psy- 
chiatric settings were included later. (Domiciliary-hostel accom- 
modation seemed an attractive and easy housing option for per- 
sons discharged from psychiatric hospitals when Homes for Spe- 
cial Care beds were frozen in 1985-86.)i6 

Adults with developmental disabilities were never formally 
included in the domiciliary-hostel program; but several hundred 
such persons currently reside in these settings. There are relatively 
few-seniors funded under the domiciliary-hostel provisions, i^ 

Most domiciliary hostels are private for-profit businesses. 



13 Metro Toronto designates all 
its hostel accommodation as 
"emergency" and hence has 
no "domiciliary-hostel" beds. 
(Emergency beds used to 
receive a higher per diem, 
although this is no longer the 
case.) It may be that some 
beds, in Metro and else- 
where, serve a permanent 
domiciliary function, but they 
are nevertheless categorized 
as emergency housing. 

14 These general facilities are 
for groups, including evicted 
families; refugees; transients 
and migrants; older single 
persons; and youth. 

15 Under the Landlord and Ten- 
ant Act [pavAgx^^ph l(x)] a 
specific exclusion from cov- 
erage is given to "short-term 
accommodation provided as 
emergency shelter." Howev- 
er, not all accommodation 
labelled or described as an 
"emergency hostel" is neces- 
sarily excluded under para- 
graph l(x). The status of any 
particular accommodation 
could be argued before the 
court. 

16 Per diems in HSC beds are 
lower than those in domicil- 
iary hostels. 

17 OAS plus supplements would 
give a senior a monthly 
income of $899.97, which is 
usually enough to purchase 
accommodation in the pri- 
vate market without munici- 
pal financial assistance. 
Seniors resident in a domicil- 
iary hostel before they turn 
sixty-five will often simply 
stay there upon reaching age 
sixty-five. Typically, they sign 
over their total monthly 
cheques to the hostel opera- 
tors. 



138 The Rest Home As Home 



18 $33.40 X 30.416 days per 
month = $1,015 per month. 

19 Federal/Provincial Guidelines 
with reference to the comple- 
tion of CAP 30, Federal/ 
Provincial Cost-Sharing and 
Financial Advisory Services, 
November 8, 1986, p. 5. 



Hostels receive payment for eligible residents on a per diem 
basis. (The 1990-91 total provincial/municipal expenditures 
for emergency and domiciliary hostels have been estimated at 
approximately $58 million. The Ministry of Community and 
Social Services (MCSS) was unable to separate emergency 
from domiciliary costs, though one official suggested a fifty- 
fifty breakdown might not be far off the mark.) 

Under paragraph l(l)(j) of the GWA Regulations, a munici- 
pality may participate in the hostel program. If it chooses to 
do so, it must enter into an agreement with each supplier to 
provide room, board, and assistance "with personal needs"; 
payment is to be at or below a maximum per diem rate set by 
the province. (When the program began in the mid-1960s, the 
domiciliary-hostel payment was $5 per day; increases were ad 
hoc until 1987, apparently to offset inflation and in response 
to pressure from municipalities and operators.) 

Since 1987, the annual increases in the domiciliary-hostel 
rate have been the same as those for FB and GWA. Effective 
October 1, 1991, the per diem ceiling was $33.40, about 
$1,015 per month. 18 (MCSS estimates that about 30 percent of 
the municipalities participating in the domiciliary-hostel pro- 
gram pay at this maximum, though the ministry has been 
unable to provide us with a provincial average figure.) 

Because municipalities can pay any per diem up to the 
provincial ceiling, rate setting can be vulnerable to arbitrary 
decision-making: one operator noted to the Commission that 
his municipality had intended to give a smaller increase than 
the maximum; it was only through the exercise of "political 
connections" that the maximum was set. 

According to the Canada Assistance Plan (CAP) guide- 
linesi9 the per diem is intended to cover three types of ser- 
vices in addition to room and board: 



1. "domestic services of an ordinary household nature," 
such as meal preparation, cleaning, heavy laundry, etc.; 

2. "supervision of an ordinary household nature," such as 



Life Near the Bottom 139 



pointing out the need for haircuts, medical/dental appoint- 
ment reminders, observance of house rules, etc.; and 
3. "limited personal services," such as those temporarily 
required during minor ailments. 

Unlike room-and-board or renter payments, the domiciliary- 
hostel payments are made by the municipality directly to 
operators. 

Other than the means testing required for an applicant to 
qualify for social assistance, the province specifies no eligibili- 
ty criteria for applicants to be funded under the hostel provi- 
sions. Nor must operators meet any provincial criteria to 
receive a hostel agreement. 

The municipality may negotiate any or no conditions in 
contracts with prospective hostel operators. Thus, receipt of a 
contract and funding can be contingent upon operators' meet- 
ing certain conditions (such as fewer residents per room, or 
provision of a sitting room) or providing specific care as is 
identified by the municipality. In some cases, the condition 
may be compliance with a local rest-home by-law. However, 
the money can simply be paid by the municipality to ware- 
house vulnerable persons out of sight of the community. 

A municipality will typically contract for only some of the 
beds offered in any given setting, and not all will be used or 
paid for at all times. According to MCSS, the precise number 
of domiciliary-hostel spaces in the province is not known. 
There are an estimated 9,250 beds in residences that hold 
municipal contracts. Less than 40 percent of these are subsi- 
dized under the domiciliary-hostel provisions; the balance is 
occupied by self-paying residents. In October 1989, approxi- 
mately 4,550 domiciliary-hostel beds were occupied. 20 in 
February 1991, the ministry estimated there were approxi- 
mately 3,500 domiciliary-hostel beds in Ontario. 21 

The low public visibility of the domiciliary-hostel sector in 
Ontario is perhaps surprising, given its large size — between 
3,500 and 4,500 beds. With provincial and municipal spending 



20 Of these about 2,250 residents 
(49 percent) had psychiatric 
disabilities. MCSS, List of 
Emergency and Domiciliary 
Hostels by Area Office, April 
29, 1990." 

21 These were occupied by 
approximately 2,200 residents 
with psychiatric histories, 800 
frail elderly persons, and 500 
persons with developmental 
and/or other disabilities. 
MCSS, Community Services 
Branch, Domiciliary and 
Emergency Hostel Review, 
February 1991, p. 3. 

In the survey on domicil- 
iary-hostel accommodation 
conducted for this Commis- 
sion, fifty-five municipalities 
reported they held hostel 
agreements with private oper- 
ators, with some 7,445 beds in 
residences that hold hostels 
contracts. (See above, note 1, 
chapter 2.) Responses to our 
questionnaire seem to indicate 
underreporting as the figures 
err consistently on the low 
side compared to the MCSS 
estimates. 



140 The Rest Home As Home 



22 The Commission is surprised 
and disappointed that com- 
prehensive information on 
the domiciliary-hostel system 
is not available from MCSS. 
Such an imperfect data base 
renders difficult not only dis- 
cussion of the system and 
analysis of its operation, but 
also projections about alter- 
native approaches and 
service-delivery models. 

However, there is a major 
survey under way within 
MCSS, which is attempting to 
collect comprehensive 
descriptive and demographic 
data on the domiciliary- and 
emergency-hostel programs 
in Ontario, and information 
about the concerns of various 
stakeholders "particularly ... 
provincial and municipal offi- 
cials and hostel operators." 
MCSS, Domiciliary and Emer- 
gency Hostel Review, p. 4. 



of some $30 million per year, the domiciliary-hostel system is 
a significant form of accommodation for vulnerable adults in 
Ontario. ^2 (There is approximately a 20 percent constant 
vacancy rate in the domiciliary-hostel accommodation on a 
provincial basis.) 



PROBLEMS WITH THE HOSTEL SYSTEM 

The Commission has two fundamental objections to the domi- 
ciliary-hostel system as a funding mechanism. 

First, a flat per diem is given to all operators within a com- 
munity. Needs of residents, however, are individual. A uniform 
per diem leaves it to operators to decide what services individu- 
als will get, based on their own subjective assessments of need 
and worth or merit. Many residents have described to the Com- 
mission how operators deny contracted services as a weapon of 
social control, moral judgment, or punishment. 

The uniform per diem was originally established for conve- 
nience and because only limited care services were available 
or envisaged. Over time, services were added, usually at the 
behest of the municipalities. When the per diem was inade- 
quate to cover needed services, it was left to the operators to 
determine their priorities: whether, for example, to sacrifice 
the special diet of one resident, forgo assistance with bathing 
for another, cut back on the cost of food, or privately subsi- 
dize the residents by doing tasks without compensation. 

Such discretion, when exercised by operators with limited or 
no constraints on their actions, is simply bad public policy, for 
operators are virtually unaccountable. More important, operators 
should not be deciding service priorities, access, and individual 
needs; nor are they usually qualified or trained to do so. A flat 
per diem gives operators too much power and far too much 
responsibility. It would be better to assess individual needs and 
to supply services that are designed and funded accordingly. 

The Commission's second objection to the hostel system is 



Life Near the Bottom 141 



that it disempowers residents. Undoubtedly, the hostel system 
meets some needs of residents in that they receive accommo- 
dation and meals, and for some the lifestyle is attractive. How- 
ever, the domiciliary-hostel system is a response to the needs 
of bureaucrats — hospital-discharge planners and municipal 
welfare administrators — who must find accommodation for 
difficult clients and keep vulnerable adults off the streets. The 
system offers a convenient and easy pigeonhole for uncom- 
fortable social problems: operators tend to accept most refer- 
rals, and the rest-home environment is a flexible catch-all that 
can hold almost anyone's needs and problems when there is 
nowhere else (or nowhere better) to go. 

One municipal official has pointed out that the domiciliary- 
hostel program is virtually the only remaining open-ended, 
mandatory cost-shared housing program for adults. As long as 
individuals meet the GWA criterion of being "in need," they 
can be housed in domiciliary-hostel settings, and the costs will 
be shared twenty-eighty with higher levels of government. 
The municipality initiates the spending; the financial involve- 
ment of the provincial and federal governments is then 
mandatory.-^ 

Finding affordable housing for economically vulnerable 
persons is very difficult; however, in order to house residents 
under the domiciliary-hostel system, municipalities must des- 
ignate potential residents as needing both housing and care, 
whether or not this is actually the case. Operators are then 
paid to provide both accommodation and care. In some cases, 
the result is an expensive housing program, as it pays for care 
services that individuals may not need or want. Yet it is only 
by purchasing both the accommodation and care from opera- 
tors that municipalities can gain access to the desired accom- 
modation.^"^ 

The domiciliary-hostel system also meets the needs of opera- 
tors, providing them with secure and consistent funding. There 
is a- great financial incentive for operators to take almost any res- 
ident: filled beds generate per diems; empty beds do not. 



23 The "cap on CAP," to which 
reference has been made, 
limits federal spending in 
response to municipal 
spending. The federal short- 
fall is picked up by the 
province. 

24 The converse also applies: 
some persons are required to 
accept housing they neither 
need nor want in order to 
receive care services provid- 
ed by the operator. This 
appears to be the case with 
some accredited alcohol- and 
drug-recovery programs 
funded through the hostel 
per diem. 



142 The Rest Home As Home 



25 One operator noted to the 
Commission that even control 
devices on water taps, though 
preventing scalding, did little 
to prepare residents for life 
outside, where they would 
have to regulate their own hot 
and cold water. 

26 We note one case brought to 
our attention during the con- 
sultations: all residents were 
moved out of Murphy Manor 
in Sarnia so major renovations 
could take place. They were 
taken to a home owned by 
the same company in Wind- 
sor, where they stayed from 
November 1989 to July 1990. 
Subsequently, they were 
returned to Murphy Manor. 
When the receiver decided to 
close the home in Sarnia per- 
manently in March/ April 1991, 
all residents were expected to 
be gone within four working 
days of receiving notice to 
vacate. See London Free Press, 
September 24, 1990, and Sar- 
nia Observer, April 10, 1991. 



A domiciliary-hostel contract is between a municipality and 
individual operators; residents are effectively disempowered. 
In theory, residents can take control by leaving particular 
boarding homes and going elsewhere; in practice, however, 
individuals are often "placed" in specific settings. (Neverthe- 
less, we were told that the competition among operators in 
one community is so severe that hostel residents are "recruit- 
ed" at local coffee shops and given small inducements, such 
as cigarettes, to leave one home and enter another. Residents 
indicated there was no point in moving as "all these places 
are basically the. same." We have also heard of financial 
inducements being offered in return for directing clients to 
certain settings.) 

All in all, the domiciliary-hostel system substantially meets 
the needs of bureaucrats and operators. It does less for many 
residents. 

Residents are typically provided with three meals a day, 
irrespective of their ability to meet this need independently. 
When overmedication occurs, individuals may be left to spend 
their days in bed, sleeping or listless. The all-encompassing 
atmosphere of the hostel leads to a passive, detached life for 
the residents. There are no incentives to accomplish anything 
and strong inducements to remain quiet and uninvolved.^^ 

Nor is there any incentive for operators to train their resi- 
dents to graduate to more independent living situations, for 
every time a resident leaves, the operators lose a per diem. 
Agency workers have told the Commission that at times they 
are not permitted to meet privately with individual residents 
because of operators' fears that the workers will encourage 
the residents to leave the home. We have also been told of 
groups of residents being moved, like pieces of furniture, 
from one setting to another, without consultation, acquies- 
cence, or warning, when a home is closed temporarily or per- 
manently. -^ 

We do not suggest that this depersonalization of residents 
is universal: one operator showed the Commission a coach 



Life Near the Bottom 143 



house behind her residence that she was planning to turn into 
a halfway house for residents, as a first step towards indepen- 
dent living. Such an approach is both admirable and notewor- 
thy for its apparent rarity. A far more typical priority, certainly 
in the larger residences, is full occupancy; the needs of the 
residents are of secondary interest. 

A system that funds care attached to residences, on a per 
diem basis, rather than people, based on their individual 
needs, that does so at a high price-^ and disempowers resi- 
dents in the process is unacceptable. 

RECOMMENDATION 48: That the domiciliary-hostel pro- 
gram with its per diem funding of operators be phased out 
as soon as possible, and that the provincial government 
commit itself to end the domiciliary-hostel system within a 
fixed period. 



27 Compared to basic social- 
assistance rates. 

28 Recommendation 244 of the 
Social Assistance Review 
called for the removal of the 
domiciliary-hostel program 
from social-assistance legisla- 
tion, to be funded and regu- 
lated through separate resi- 
dential-services legislation. It 
also said that support ser- 
vices to domiciliary-hostel 
residents should be provided 
on a "portable" basis. 



The funding of hostels as if they were small institutions is at 
odds with recent government social-welfare initiatives. ^s Indi- 
vidualized needs assessment and program design, if not indi- 
vidualized funding, is a major step towards reasserting the 
unique worth, dignity, and legitimacy of every resident in 
every hostel. Moreover, as we shall see, such a change in 
approach need not be significantly more expensive than the 
status quo. 

Ending the domiciliary-hostel program cannot be accom- 
plished overnight; however, the government of Ontario 
should avoid building up the hostel system into a more sub- 
stantial "institutional" presence. Short-term per diem funding 
must be maintained, but future spending should be re-direct- 
ed to new programs that will provide housing and service 
alternatives for residents now in domiciliary hostels. 



144 The Rest Home As Home 



29 During the Commission's 
early exploration of this ques- 
tion, we learned that the 
Regional Municipality of 
Ottawa-Carleton has made a 
specific request to MCSS that 
covers virtually identical 
ground. The Region notes that 
during the past few years a 
number of reports have been 
written, by community advo- 
cacy groups and the local 
Department of Social Services 
itself, proposing that alterna- 
tive use of domiciliary-hostel 
funding be allowed. Such 
reallocation of funding is not 
currently permitted under 
GWA. 

30 In some communities, the 
payment of the higher hostel 
per diem is tied to specific 
performance expectations 
(though enforcement is often 
lax). These might include 
fewer beds per room or meals 
meeting the standards of the 
Canada Food Guide. In these 
cases, there is a clear relation- 
ship between the higher per 
diem expenditures and an 
improved living situation for 
residents. 

In other communities, 
however, the agreement may 
be vague or the performance 
requirements based on a by- 
law that applies to all accom- 
modation, not just domiciliary 
hostels. In such cases, the 
receipt of domiciliary-hostel 
monies may impose few or 
no additional requirements 
upon operators. 

31 To keep total spending con- 
stant is consistent with our 
explicit commitment not to 
view any changes as a cheap 
option to save money. In fact, 
a full and comprehensive sys- 
tem of community-based care 
delivery might cost more — but 



An Alternative Approach 

We now consider how we can move away from domiciliary 
hostels towards an alternative that is more resident-based and 
-centred. First, we look at reallocating existing funding. In this 
context, we explore how the $1,015 per resident per month in 
the domiciliary-hostel system might be better spent. -^ 

Table 8 presents the differentials between the room-and- 
board and renter rates and the domiciliary-hostel payments. In 
the first two cases, residents receive accommodation, with or 
without meals; in the hostels, residents are also supposed to 
receive limited care services provided by the operators. The 
difference in cost roughly estimates the cost to the public of 
the care services to be provided by operators. "^o 

It is a fair and critical question to ask if the government of 
Ontario receives fair value for this money. In some cases it 
appears that we do, but in others very little is received in 
exchange for the $327-$524 addional expenditure per resident 
per inonth. We must ask, in the interests of public policy, 
whether better service and higher-quality accommodation can 
be delivered for the same money. 

We do not use the language of cost saving, for it was such 
an approach to deinstitutionalization that made a sham of ear- 
lier efforts. Rather, we focus on reallocation of expenditures. 
We do not hold out the elusive (and ultimately deceptive) car- 
rot of major cost savings, in the short term at least. 

The alternative approach begins by separating accommo- 
dation (and board) from care, while keeping total monthly 
expenditure constant. ^i Thus, the level of social-assistance 
payments would be based on the accommodation in which 
the person lives. The remainder of the $1,015 currently being 
spent on the hostel would then be available for care services, 
on a flexible and portable basis, delivered from outside com- 
munity-based agencies. ^2 

The differential between "rent" and total income would 



Life Near the Bottom 145 

Table 8 

Differentials Between Domiciliary-Hostel Payments and Social-Assistance Alternatives 









Per Resident 




Domiciliary 






Monthly 


Annual 


Hostel 


Alternative 


Payment 


Differential 


Differential 


$1,015 (max.) 


Room & Board: 










GWA 


$491 


$524 


$6,288 




GAII\IS(D) 


$688 


$327 


$3,924 




Renter (max.): 










GWA 


$626 


$389 


$4,668 




GAINS(D) 


$886 


$129 


$1,548 




Senior: 










OAS+Supps 


$900 


$115 


$1,380 



depend on the housing alternative chosen. Some residents 
may wish to prepare their own meals, and would receive sup- 
port at the renter rate; others may choose to remain in room- 
and-board premises. (The rental setting is more empowering 
to residents than is room and board, in that it places them in 
control of their own meal preparation, and provides them 
with more money to meet this need.) 

If residents "moved" from a domiciliary hostel to a room-and- 
board setting under GAINS(D) (at $688 per month), $327 per 
month per resident ($1,015 minus $688) would become available 
for portable community services. If individuals moved to a setting 
such as a rooming house and were eligible for the maximum vari- 
able renter payment under GWA, they would receive $626 
monthly, leaving $389 for community-based services.33 

RECOMMENDATION 49: That as the phasing-out of the 
domiciliary-hostel program proceeds, funds currently spent on 



deliver more — than the cur- 
rent hostel system. 

32 The question of control over 
the reallocated funds is com- 
plex. As we discuss subse- 
quently, our preference is for 
maximum resident involve- 
ment in making these deci- 
sions. In some cases, outside 
service agencies would need 
to be involved. 

33 The personal-needs 
allowance of $112 must be 
paid in hostel settings; the 
social-assistance alternative 
would cover accommodation, 
food costs, and personal 
needs. The lower the cost of 
accommodation (or room 
and board), the more the 
individual has available for 
personal needs. The Special 
Boarders Allowance of $50 is 



146 The Rest Home As Home 



not paid separately from the 
basic room-and-board rate; 
for our purposes, it is simply 
included in the monthly total. 

34 The Ottawa-Carleton propos- 
al referred to a moderate-size 
residence of forty persons, 
which aggregates to over 
$150,000 per year (based on 
1991 rates). 

35 The maximum potentially 
available may be readily cal- 
culated. If a resident is 
moved from a domiciliary 
hostel to accommodation 
where he or she would be 
eligible for the GAINS(D) 
renter rate — the most proba- 
ble alternative — the funds 
available for reallocation 
amount to $327 per month 
($3,924 per year). Aggregated 
over 4,500 residents, this 
yields a total of $17.7 million 
dollars potentially available 
for community-based ser- 
vices. (All residents, howev- 
er, will not move.) 



the hostel system be made available for reallocation to accom- 
modation (with or without meals), and to care services deliv- 
ered from the community. 

The amount of money available to a person may be inade- 
quate for all needed services, for it may be costly and ineffi- 
cient for an outside worker to visit one person in a residence. 
However, when services can be provided to a number of resi- 
dents at the same time, the approach becomes more attrac- 
tive. If ten residents in one home require assistance with med- 
ications, for example, a visiting nurse's aide can deliver the 
service on a relatively inexpensive per-resident basis. 

For ten people, the available funds amount to $3,270 per 
month or $39,240 per year (based on the FB/GAINS(D) room- 
and-board alternative).'*'* This is clearly a substantial sum of 
money and could provide support to residents while not 
increasing total government spending. 35 



ARRANG ING HOUSING 

A discharge allowance has traditionally been paid under social 
assistance to persons leaving institutions, such as hospitals, to 
establish a residence in the community. As of October 1, 
1991, this has been expanded into a new community start-up 
allowance, available to any person who must "for his or her 
health and welfare" leave one and establish another perma- 
nent place of residence in the community. The new allowance 
continues to be dependent upon financial need and is limited 
to a maximum of $775 once in twelve months. It is often used 
to meet the last month's rent required by some landlords. 

It is the Commission's understanding that this new commu- 
nity start-up allowance is being made available to persons 
leaving hostels to establish independent living in the commu- 
nity. We endorse this action and urge that it be established as 
a firm policy. 



Life Near the Bottom 147 



Residents may also wish that a community-housing agency 
assist in negotiating rent with potential landlords. 

RECOMMENDATION 50: That the Ontario government 
fund non-profit housing agencies to assist in arranging 
housing alternatives for those residents of rest homes who 
wish to leave domiciliary hostels and desire assistance to 
go onto other forms of social assistance. 

Such housing groups should not be limited to arranging non- 
profit housing, although it should be the preferred alternative. 
The demand for non-profit housing far exceeds the supply, 
and the cost per unit is high. In some cases, acceptable 
arrangements might be made with rest-home operators to 
offer room and board or accommodation only, perhaps even 
to current residents. 



ARRANGI NG CARE 

In many cases, groups of residents, with assistance if desired, 
may arrange for their own care needs. Former hostel residents 
might be hired to provide supports for current residents, for 
care needs can often be met through peer interaction and 
support, for which formal credentials are neither needed nor 
desirable. Care-givers must be acceptable to the care recipi- 
ents, and former hostel residents may be most acceptable of 
all.36 



36 For example, the 

Consumer/Survivor Develop- 
ment Initiative, an anti-reces- 
sion program of the govern- 
ment of Ontario, was 
announced in March 1991. 
Funding of $3.1 million was 
designated to assist in devel- 
oping consumer/survivor job- 
creation strategies and long- 
term employment projects. 
Support services to residents 
of hostels could well fit with- 
in this program. 

The Commission is aware 
that Recommendation 51 
opens up the question of 
who is to determine if care 
needs identified by residents 
are "reasonable." Although 
we do not intend to enter 
into this broad debate, it is 
our general view that resi- 
dents, with assistance if 
desired, are best able to iden- 
tify their own needs; and that 
constraints on this approach 
should be used only in 
exceptional cases. 



RECOMMENDATION 51: That the Ontario government 
fund non-profit agencies and groups of current or former 
rest-home residents to assist residents, as desired, to identi- 
fy their own care needs and arrange for these to be met in 
ways acceptable to themselves as they leave domiciliary 
hostels and go onto other forms of social assistance. 



148 The Rest Home As Home 



37 In some cases, another com- 
munity-based agency may be 
contracted to deliver support 
services. As noted in chapter 
4, Habitat Services in 
Toronto contracts with Com- 
munity Occupational Therapy 
Associates (COTA), a non- 
profit agency, to deliver a 
life-skills or social/recreation- 
al program two half days a 
week in the boarding homes 
with which it has contracts. 
The workers are attached to 
the homes, and do not follow 
the residents if they move. 

38 Specialized and individual- 
ized services currently being 
delivered, such as individual 
mental-health counselling, 
would not be directly affect- 
ed by our proposals. These 
programs would continue to 
receive funding from the Min- 
istry of Health or MCSS. It is 
possible, however, that the 
Commission's approach 
might generate greater 
demand for these services. 



In other cases, a non-profit agency might deliver portable ser- 
vices for a group of residents, either in the home or in a com- 
munity setting. Again, this care might involve personal sup- 
port, life skills, or supervision, if and when needed. 3^ 

We note that if rest homes are covered under the Landlord 
and Tenant Act (LTA) as we recommend, residents cannot be 
required to use support services. It is essential that no com- 
munity services be delivered to anyone who does not want 
them. Individuals, groups of residents, or community-based 
agencies would contract for or deliver community-based ser- 
vices to residents who may wish them, while respecting the 
right of the others in the setting not to participate. 

It is assumed that groups of residents or, failing that, out- 
side community agencies exist or can be created to administer 
the funds and broker, manage, or deliver the services. At pre- 
sent, it is individual operators, within the broad framework set 
by GWA, who decide residents' needs. Under the revised 
approach, groups of residents or community-based agencies 
would identify priorities within a given budget for care ser- 
vices. Service providers could include agencies such as local 
Canadian Mental Health Associations or local Associations for 
Community Living. 38 

It is essential that residents be actively involved in making 
choices among service needs and priorities. For clients to be 
disempowered by community-based agencies may be slightly 
more benevolent than being disempowered by commercial 
operators, but neither outcome is acceptable: residents must 
be empowered to participate in the decision-making that 
affects their lives. 

One group of consumers with psychiatric histories suggest- 
ed to the Commission that an intervening agency was neces- 
sary and desirable to assist in the empowerment process, but 
that consumers and ex-consumers should hold a majority of 
the seats on the board of directors of any such agency. Cer- 
tainly such an agency should have an explicit commitment to 
increasing consumer involvement in policy-making, as expedi- 



Life Near the Bottom 149 



tiously and to the maximum extent possible. 

RECOMMENDATION 52: That all community-based agen- 
cies involved with housing or service provision in the 
move away from the domiciliary-hostel system have an 
explicit commitment to involve consumers actively in all 
aspects of decision-making to the maximum extent possi- 
ble. 

There may be some question whether this alternative 
approach is appropriate for all residents of domiciliary-hostel 
accommodation. In principle, the answer should be in the 
affirmative, as the portable services should at least duplicate 
care provided by operators. 

However, some residents are quite happy in hostels and 
have no desire to move or otherwise change their living 
arrangements. In practice, the transition would be gradual: 
some residents will choose to leave domiciliary-hostel settings 
as effective alternatives are developed, but not all residents 
will choose more independent living. 

Hostels have a valid and necessary role in a pluralistic 
housing environment, particularly as a home for those often 
rejected by group homes and other more supportive but 
demanding settings. Excellent operators, of whom there are 
many across the province, will continue to offer hostel accom- 
modation to those who wish it, in the short term, at least. 

We have assumed that outside portable services can meet 
the needs of residents as well as or better than those provided 
by operators. However, we do not envisage a situation in 
which operators will be prevented from providing care ser- 
vices, notwithstanding our strong preference for separating 
accommodation and care. In certain circumstances, operators 
may be better able to provide particular care services. ^9 

Obviously, every dollar given to operators for care services 
is a dollar less for the development of portable community- 
based alternatives. However, there is — for the present — a 



39 In rural or isolated areas, for 
example, the economic viabili- 
ty of portable services is limit- 
ed; in addition, if the opera- 
tors reside on the premises, it 
may be efficient to contract for 
certain care services if needed 
and desired. In areas where 
community-based services are 
not yet available or feasible, 
there may be little option but 
to contract with operators, 
though the priority should be 
the development of such ser- 
vices. 



150 The Rest Home As Home 



40 The Victoria Health Project, 
an innovative program in 
British Columbia, offers twen- 
ty-four-hour assistance and 
supervision for seniors in the 
home as needed. The Greater 
Niagara General Hospital has 
recently developed a quick- 
response team, based on the 
Victoria model, to serve the 
region. Brockville Psychiatric 
Hospital also has a twelve- 
person multi-disciplinary 
crisis-intervention team. The 
aim is to resolve the crisis in 
the community without hospi- 
tal admission. 

41 We have previously com- 
mended the Consumer/Sur- 
vivor Development Initiative 
of the Ontario government. 
This program could well pro- 
vide the needed peer support 
on an emergency or on-call 
basis. See above note. 

42 Toronto's Gerstein Centre 
represents a response based 
on a consumer/survivor-cen- 
tred approach. It provides 
non-medical community- 
based crisis service to people 
who have severe and persis- 
tent mental-health problems 
and are experiencing acute 
crisis. This is a viable alterna- 
tive to consumer/survivor 
response teams. 



need for certain care services to be provided by operators. 
Funding can be redirected only in a planned, phased-in man-, 
ner as community services are developed. Nonetheless, redi- 
recting increasing amounts of these funds, over time, to the 
non-profit providers of care services should be a priority. 

RECOMMENDATION 53: That all new and reallocated 
funding of services for residents of hostels be directed 
towards non-profit community-based suppliers whenever 
possible. 



RESPONDING TO CRISIS 

Residents may have need of emergency intervention to deal 
with a crisis or life event. At present, when these occur in the 
middle of the night, operators' only recourse may be to call 
the police, who may or may not respond in an appropriate 
manner. The Commission is aware that "on-call" emergency- 
response teams are being developed to respond to psychiatric 
emergencies in the community, as well as to help seniors to 
remain living in their own homes. "*o 

Of even greater potential value, in our view, would be the 
development of emergency-response teams composed of 
peers and persons with prior histories of psychiatric 
disability. "ii Such consumer/survivor initiatives may be the 
most effective means of assisting residents of rest homes in 
crisis; peer support may be more useful in many cases than 
medications and hospital-based teams. "^^ Obviously, response 
teams that assume this formal responsibility should be paid a 
market wage; but the cost would undoubtedly be less than 
that of trained professionals operating from institutions. 



RECOMMENDATION 54: That groups of consumer/survivors 
be utilized as paid first-line emergency-response teams in the 
event of resident crises in rest homes whenever possible. 



Life Near the Bottom 151 



If the consumer/survivor teams cannot be constituted appro- 
priately, hospital emergency teams may provide an alterna- 
tive. « 



COSTING THE CO 



UNITY ALTERNATIVE 



MCSS has provided us with the current cost of delivering ser- 
vices to persons in the community but not in hostel. The 
MCSS data suggest it would cost approximately $40 million 
annually to deliver community services to 4,550 hostel resi- 
dents — approximately $9,000 per capita — at the level of care 
provided to the elderly or adults with developmental or psy- 
chiatric disabilities currently in receipt of community pro- 
grams.''^ 

The $9,000 per resident would be generated in two ways: 
first, the funds available from reallocation of the hostel per 
diem would produce approximately $4,000 per resident per 
year ($325 per month), or $17.7 million annually if all current 
hostel residents were to move to GAINS(D). Additional or 
new funding totalling approximately $5,000 per resident per 
year ($22.5 million if all residents were to move) would be 
required to deliver the same quantity and quality of services 
as are delivered to persons considered to be in the same 
"consumer" categories, currently receiving MCSS and Ministry 
of Health (MoH) community programs. 

The Commission finds $9,000 per resident to be a very 
high estimate. First, the needs of residents in hostels may well 
not be as great as those of recipients of MCSS community pro- 
grams.''^ More important, residents may not want professional- 
ized services of the type assumed by the MCSS figures. 

We have stressed throughout this Report the importance of 
residents' making their own decisions about their own lives, 
and it has been made clear to us that many of them would 
prefer peer support and counselling to the interventions of 
professionals. As they would be actively involved in determin- 



43 In either case, such outside 
support services may provide 
relief to rest-home operators, 
and ease the pressure on 
operators as isolated 
providers of ongoing care. 

44 For example, an adult with 
developmental disabilities in 
the Supported Independent 
Living program receives com- 
munity services valued at 
$19,200 per year; the 
assumption based on the 
MCSS data is that such an 
adult currently in a hostel 
would receive the same value 
of community services out- 
side a hostel. A post-psychi- 
atric resident of a hostel 
would receive $14,000 of 
community services, the 
mean value of community 
services per person served, 
now provided through MoH. 
The methodology and data 
are essentially the same as 
those used by MCSS in cost- 
ing community-based ser- 
vices for the Rupert Hotel 
pilot project in Toronto. 
MCSS, Cost of Community 
Programs Provided Under 
Supportive Housing (Back- 
ground Note for Rupert Hotel 
Pilot Project), n.d. 

45 The adult with a develop- 
mental disability in a hostel 
may require less support than 
that provided through the SIL 
program. The post-psychiatric 
patient may not need com- 
munity services to the value 
of $14,000 per year. 



152 The Rest Home As Home 



46 We must consider, as well, 
the question of economies of 
scale: the cost of services pro- 
vided by MCSS and MoH 
includes travel time, as sup- 
port workers move from one 
client to another. The alterna- 
tive services envisaged here 
would be delivered to a num- 
ber of people resident in the 
same physical location. 

47 MCSS notes that a move to 
community-based services 
would produce mandatory 
standards higher than those 
required of hostel operators; 
these standards, they argue, 
would entail higher costs. To 
measure accurately the full 
care needs of hostel residents 
is, of course, a separate and 
complex issue. 

48 We also note the current 
salary of a full-time COTA 
(community) worker in 
Toronto's Habitat program is 
about $25,000. Under our pro- 
posal, ten residents would 
have available some $50,000 
per year, of which $10,000 
would be new spending. 
Depending on the overheads, 
this sum would purchase 
somewhere between one and 
two full-time COTA workers. 

49 The MCSS figures, cited in 
note 44, indicate a per capita 
arinual cost of $2,900 for 
home-support services for 
seniors; $5,300 for residential 
counselling and supportive 
services in halfway houses; 
and $4,900 for "ministry pur- 
chase of counselling," a flexi- 
ble category used to fund a 
wide variety of services, 
including services in some 
supportive housing. 



ing their alternative-care programs, it is unlikely they would 
choose service providers with highly specialized credentials. 
The cost of such peer-provided services would be modest 
compared to the figures provided by MoH and MCSS.^^ 

Moreover, the Commission does not advocate an enrich- 
ment of services as residents move to an alternative social- 
assistance category:47 it is our wish to compare costs at a 
roughly constant level of care. Operators of hostels are paid 
about $350 per resident per month for limited care services; it 
is this modest level of care that we wish to duplicate for com- 
munity-based delivery. 

The Commission believes that an annual total of $5,000 per 
resident — or just over half the figure produced from the MCSS 
data — could provide appropriate community services. ^s This 
figure is based on MCSS per capita expenditure on community 
programs at the level we envisage. ^9 

As before, the funds available from reallocation of the hos- 
tel per diems total just less than $4,000 per resident annually. 
Thus, it would be necessary to supplement available funds by 
about $1,000 per resident per year to roughly match the ser- 
vices currently received in hostels. Were all 4,550 current resi- 
dents to move, new spending would total $4.5 million, an 
expenditure ceiling unlikely to be met. 

The Commission wishes to stress that we envisage the 
move away from the domiciliary-hostel system to be incre- 
mental: as groups of residents decide they wish to live more 
independently, their hostel funding would becoine available 
for reallocation under social assistance and for purchase of 
community-based services. For each resident who chooses to 
make this change, it will be necessary for the government of 
Ontario to supplement current funding by $1,000 per year to 
roughly match the level of service currently provided in 
halfway houses and through MCSS purchase-of-counselling 
agreements. 

This $1,000 is a small sum to enable a resident to move 
away from domiciliary-hostel accommodation. 



Life Near the Bottom 153 



RECOMMENDATION 55: That the provincial government 
allocate new funding of about $1,000 per year for the pro- 
vision of community-based services for each resident who 
leaves domiciliary-hostel accommodation for another 
social-assistance status in the community. This funding is 
to be in addition to the reallocated hostel funding. 

This proposal would have no immediate applicability in those 
communities that do not participate in the domiciliary-hostel 
program. However, consideration should be given to making 
additional funds available to these municipalities for commu- 
nity services to vulnerable people in rooming houses and 
room-and-board accommodation.^" 

We also recommend that all the money redirected to com- 
munity care services be funded 100 percent by the govern- 
ment of Ontario. 51 Municipalities would continue to carry their 
20 percent share of social-assistance spending under GWA, 
but they would, in effect, be free of paying for care services. 
If residents were placed under GAINS(D) rather than GWA, as 
would most likely be the case, there would be no municipal 
financial responsibility for accommodation or care. 

RECOMMENDATION 56: That in the reallocation of domi- 
ciliary-hostel funding, the "care-services" portion be fund- 
ed 100 percent by the Ontario government. 

For those communities involved in the hostel program, actual 
cost savings may be substantial. 5- 

The hostel program is the responsibility of MCSS; yet the 
reallocated spending, much of its directed towards those with 
psychiatric histories, may lie within the traditional community 
mental-health mandate of MoH. This Commission cannot 
resolve this jurisdictional dilemma, but stresses that the needs 
and wishes of the residents must be paramount and the min- 
istries must reach an agreement acceptable to all concerned. 
We urge the ministries of Community and Social Services and 



50 A funding formula could be 
developed, based on demo- 
graphic information, to deter- 
mine how many persons 
might have been in a domi- 
ciliary hostel if the municipal- 
ity had participated in this 
program. 

51 There is some question about 
how this "reallocated" fund- 
ing would be administered: if 
the money were removed 
from social assistance, ongo- 
ing funding could not be 
guaranteed, as only social- 
assistance spending is both 
mandatory and open-ended. 

52 Suppose the domiciliary- 
hostel payment is $1,015, and 
the alternative is room and 
board under GWA at $491. At 
present, a participating com- 
munity pays a 20 percent 
share of the $1,015 ($203 per 
month) under GWA. If hous- 
ing were separated from care 
services, the $491 payment 
under GWA would carry a 20 
percent local share ($98.20). 
However, the amount now 
available for portable services 
($521) would be funded 100 
percent by the government of 
Ontario. Total governmental 
expenditure would remain 
the sanie, but the provincial 
share would increase and 
that of the municipalities 
decrease. If the resident 
moved to a provincial pro- 
gram such as GAINS(D), the 
municipality would save its 
entire share ($203). 



154 The Rest Home As Home 



Health to co-operate to ensure a successful transition from the 
domiciliary-hostel program a system of community-based 
care. 



Some Short-Term Measures 

Although we have recommended that the government move 
away from the domiciliary-hostel system, we wish to raise a 
number of the critical issues associated with the present sys- 
tem. Our responses may be considered interim steps pending 
the more fundamental restructuring of the accommodation 
and care of vulnerable adults. 

Concerns presented to the Commission have often begun 
with the general observation that the domiciliary-hostel pro- 
gram is suffering from system overload: GWA was never 
intended to deal with an ongoing, long-term, hard-to-serve 
caseload. There have also been very specific requests, criti- 
cisms, and suggestions. 



DOMICILIARY-HOSTEL CONTRACTS 

In the domiciliary-hostel system, there are three interested 
parties: the resident, the municipality, and the operator. At 
present, agreements are between only operators and munici- 
palities: if an agreed-upon service is not delivered, residents 
can only approach their municipality and hope it will act on 
their behalf. 

The Commission's recommendations would make these 
residents tenants under the LTA. (Although funding the tenant, 
the municipality would not be a tenant.) The agreements 
between the municipality and its operators would remain 
commercial transactions: in return for providing certain 
accommodation and care to an individual resident, the munic- 



Life Near the Bottom 155 



ipality would pay a set per diem to the operator. Each resi- 
dent would be a party to a lease, which may include a 
mandatory care package; the resident may also be a party to a 
contract for optional care services. These may be enforced by 
the resident, the lease through the LTA, and the optional ser- 
vice contract through contract law. 

As agreements between municipalities and operators will 
determine the terms of the lease and optional care contract, 
there is a need for direct consumer involvement in the negoti- 
ations. Given consumers' individual vulnerability, the Commis- 
sion recognizes that some form of collective participation and 
decision-making is essential. We note the growing importance, 
for example, of associations of psychiatric survivors and resi- 
dents' associations in some municipalities. The thrust of the 
approach is that residents become empowered, not individu- 
ally but collectively. 



53 Operators can also be paid 
the per diem when the resi- 
dent is temporarily absent, 
for example, in a temporary 
return to hospital or for a 
designated number of annual 
"vacation days." This pro- 
gram is extremely valuable, 
particularly to the residents, 
because it provides them 
with continuity and stability 
of housing. 



RECOMMENDATION 57: That residents funded under the 
domiciliary-hostel system be involved in negotiating the 
agreements for their accommodation and care between 
operators and municipalities. 



VARIABLE PER DIEMS 

Municipalities have the right to offer a variable per diem to 
operators, but few do so. 53 

RECOMMENDATION 58: That a variable per diem, with 
two or, perhaps, three levels of remuneration be used by 
municipalities, as both incentive and deterrent to opera- 
tors. 



Habitat Services in Toronto has three levels of payment. These 
do- not represent differing qualities of accommodation — one- 
star living for some and three-star for others; nor do they 



156 The Rest Home As Home 



54 Habitat has never experienced 
litigation as a result of lower- 
ing a payment level. 

55 There would also need to be 
some appeal mechanism to 
protect operators against 
capricious actions by the 
municipalities. 

56 Any system in which payment 
is linked to specified targets — 
"performance-based contract- 
ing" — runs a risk that goals 
formally tied to payment may 
be met, while non-contracted 
but presumably desirable 
goals will be ignored. The 
common "solution" is to iden- 
tify as many important goals 
as possible and incorporate 
them into the contract. The 
result may be a very detailed 
and complex contract. 



reflect variable calculations of individuals' "basic needs." All 
operators are expected to attain top-level standards. The two 
lower rungs provide incentives for operators new to the sys- 
tem, and offer financial assistance through modestly increased 
levels of payment as the accommodation and care move 
towards Habitat's standards. 

Probably more important, failure to satisfy the conditions 
set out in Habitat's contract can result in a lowering of the per 
diem. When the problem is redressed, the per diem returns to 
its previous level. 54 

Such penalties are rarely applied, for the mere threat often 
brings about the desired change; but they have been used 
three times since April 1987, always with positive effect. With- 
in one or two months, the operators had rectified the situation 
sufficiently that they were again receiving payment at the 
highest level. Habitat suggests that the threat of penalties is so 
effective a deterrent that there is limited need for actual impo- 
sition. 

In some communities, when operators' actions are unac- 
ceptable, the only recourse for the municipality is to terminate 
a contract or remove the residents. Clearly not all failures to 
meet terms of agreements between municipalities and opera- 
tors warrant such a drastic response. A full range of responses 
is needed. 55 

Some municipal officials have expressed interest in a vari- 
able payment system to reward different amenity levels. The 
presence of a room for social activities or ready access to a 
telephone for residents might be rewarded through a per 
diem incentive, as might an improved staff/resident ratio. This 
approach would sanction differing qualities of accommoda- 
tion for residents in different settings, which may be unac- 
ceptable to some. 56 

Some municipalities are concerned that political and other 
non-relevant considerations might have undue influence in a 
variable per diem system. 



Life Near the Bottom 157 



A FAIR PER DIEM FOR 
HOSTEL OPERATORS 

Many presenters have expressed the view that domiciliary- 
hostel per diem funding is inadequate to enable operators to 
deliver quality service to residents. They stress the insensitivity 
to regional cost variations inherent in a single, province-wide 
maximum per diem. Individual operators, the Ontario Long- 
Term Residential Care Association (OLTRCA), and the After- 
care Residential Association (ACRA) have all stressed that 
higher payments are essential. Operators in communities that 
participate in the domiciliary-hostel system have argued that 
payments are too low; operators in communities that do not 
participate have claimed unfair and inconsistent treatment 
from one community to another. 

To determine if the per diem funding is "fair" may be an 
impossible task, as it involves highly subjective decisions 
about the meaning of equity. A proper assessment would 
require information on the resident mix, their needs, and the 
expectations placed on operators to meet these needs. ^7 As 
well, it would require information on direct outlays for 
accommodation, meals, and care services (including the cost 
of food and labour), taxes and mortgage, other operating 
costs (such as insurance), and a reasonable return on invest- 
ment. 

It is the right and the responsibility of government to 
spend public money in the way that best meets public-policy 
goals. It is the view of this Commission that increased per 
diem compensation to operators is not the most efficient way 
to improve the quality of accommodation and care for resi- 
dents. 58 

The operator of an excellent rest home pointed out that if 
her time was costed at any reasonable rate, she would be 
operating at a deficit; it was only by subsidizing the residents 
through "donating" her time that the operation remained 
viable. The problem is a common one: many small businesses 



57 Information on client demo- 
graphics and needs may 
become available from the 
hostel survey currently under 
way within MCSS. 

58 A preferred response, as we 
have noted, is to move 
towards portable services, so 
that some of the care burden 
carried by owner/operators 
will be assumed by outside 
agencies. Per diem payments 
to operators may not increase 
in real terms, but demands 
on and expectations of oper- 
ators will decrease. 



158 The Rest Home As Home 



59 By accepting lower wages 
than those to which they 
would otherwise be entitled, 
operators subsidize those 
who receive their services, as 
residents would have to pay 
higher charges if operators 
were to receive the going rate 
for their time. 

60 We asked the Ontario Dietetic 
Association to provide us 
with their estimate of the cost 
of three meals a day to meet 
the minimal requirements of 
the Canada Food Guide. They 
indicated that no reliable fig- 
ures are available for Ontario; 
moreover, they noted that the 
Canada Food Guide is not 
always a reliable measure. 

We also learned from a 
major union in the field that 
most of its members work at 
or near minimum wage, and 
there is little reason to believe 
the non-union sector pays 
more. 

61 Rest Home Industry Study 
(untitled), by R. C. Taylor and 
Associates, Management Con- 
sultants, prepared for the Rest 
Home Association of Ontario, 
Region 4 (Windsor), Novem- 
ber 5, 1984. 

62 This figure was arrived at by 
more than doubling wages, 
including those of a psychia- 
trist, psychologist, psychiatric 
nursing staff, mental-health 
workers, and recreation-and- 
craft instructor, all of which 
would be funded through the 
per diem. It is not clear why a 
psychiatrist would not be 
paid by the Ontario Health 
Insurance Plan (OHIP) on a 
fee-for-service basis. 



in Canada would fall by the wayside were the owner/opera- 
tors' time valued at a fair-market rate. This in no way dimin- 
ishes the strength of the operator's claim, but simply places it 
in the broader context of the economic viability of small busi- 
ness, which is obviously beyond our mandate to explore. 

In any event, mom-and-pop boarding homes are disap- 
pearing from the province, replaced by chain operations with 
absentee owners and paid on-site staff. As this process contin- 
ues, the subsidization of residents by owner/operators will 
end. 59 



COSTI NG THE PER DIEM 

There are two components to an appropriate per diem: capital 
costs and operating costs. 

Many rest homes were bought and sold during the past 
few years, when prices and interest rates were high. There is 
no question that a fair return on a normal land purchase is 
due operators, but it is far less clear that a per diem should 
reflect the costs of highly leveraged properties, often with 
multiple mortgages. Although it is probably impossible to 
define "highly leveraged acquisitions" usefully, we do not 
believe there is an obligation for the government to finance 
speculative investments through increased per diems. 

With respect to operating costs, this Commission consid- 
ered attempting to determine a fair per diem, notwithstanding 
the caveats set out above. 6o However, such a study was soon 
deemed superfluous in light of what had been done before. A 
1984 study by Ralph Taylor and Associates for the Rest Home 
Association of Ontario^i proposed a "philosophy of care" for 
post-psychiatric residents including "tasks and projects such as 
self-help groups, recreation programs, etc." At that time, the 
hostel per diem was $21.55; the study produced a "per diem 
maintenance rate of $68.16 for a resident in a 40-bed rest- 
home facility dedicated to post-psychiatric care."62 



Life Near the Bottom 159 



Given the time elapsed since the study was produced, 
there is little point in pursuing its data further. However, it is 
worth noting that the philosophy articulated in that report is 
very much at odds with current service-delivery approaches. 

A 1989 MCSS study^^ may be more useful, both because it 
is more recent and because ministry staff worked with all the 
stakeholders in an attempt to determine an appropriate per 
diem for ongoing maintenance costs (but excluding capital 
costs). 64 The report noted that its attempts to cost social ser- 
vices provided under the hostel per diem were "limited and 
do not completely address the health, nursing or psycho- 
social needs of the individuals who occupy these hostels since 
hostels are not intended to be a new or alternative form of 
institution.'" (Emphasis added.) 

The study concluded that the cost data then available did 
"not provide justification for any specific course of action" 
concerning an increase in the hostel per diem. "The per diem 
would appear to be sufficient to allow most hostels to provide 
basic room and board, which CAP cost-sharing was intended 
to cover ... however, additional services which may be 
deemed necessary will have to be funded through a mecha- 
nism other than the per diem." 



63 Toward a Rationale for 
Determining a Provincial Per 
Diem Ceiling for Hostels 
Funded by the Ministry of 
Community and Social Ser- 
vices, Toronto, MCSS, n.d. 

64 The report examined the per 
diem costs at other residen- 
tial programs, including 
homes for the aged, homes 
for special care, homes fund- 
ed under the Homes for 
Retarded Persons Act, and 
unregulated (non-domicil- 
iary-hostel) boarding homes. 



A LIMITED ROLE FOR OPERATORS 



Operators have regularly indicated they are able and eager to 
offer care services, such as counselling for residents with psy- 
chiatric disabilities. They are prepared to hire staff and 
assume a significant role in improving the quality of residents' 
care and life, provided that adequate funding is forthcoming. 

It is the view of this Commission that operators should not 
be encouraged to become comprehensive care-givers. Opera- 
tors should be compensated for providing room and board 
and limited personal-care services. Any additional services 
that operators wish to offer must succeed on the open market. 



160 The Rest Home As Home 



65 The Commission is not break- 
ing new ground in this dis- 
cussion. The clear preference 
of the present and previous 
governments is to separate 
accommodation from services 
and to have the latter deliv- 
ered by outside, non-profit 
community-based agencies. 
The proposals concerning 
long-term care, discussed 
elsewhere, are consistent with 
this approach in that they 
stress portable services deliv- 
ered into individuals' homes 
(which, in the present 
instance, may happen to be 
rest homes). 

66 Operators also identify resi- 
dents' personal crises, particu- 
larly those occurring in the 
middle of the night, as major 
demands on their resources. 
Although there is an undoubt- 
ed need for some emergency- 
intervention capacity, we 
have indicated a preference 
for a peer-based approach. 



Just because a private operator wishes to sell something does 
not obligate government to buy it. 

If there is a perceived need or desire for counselling or 
other services, the appropriate government response would 
be the same as that to any other community-based demand 
for service. First, a community-based agency should assess the 
need for the service, preferably on an individual basis, for 
operators are not necessarily equipped or trained to conduct 
needs assessments. 

For example, one rest home visited by the Commission 
marketed itself as an alcohol-recovery centre that offered 
counselling to residents. The Commission, however, saw no 
evidence of ongoing programming of any kind. Other homes 
purport to offer "nursing care"; the staff wear white uniforms, 
but their qualifications and the services they deliver to resi- 
dents were less easily identifiable. 

We do not wish to subscribe to an ethos of unnecessary 
professionalization, although the operator of the "alcohol- 
recovery" home appeared to have no meaningful training or 
experience that would equip him as a counsellor. The point is 
more fundamental: it is not the place of government to fund 
any and all services operators may wish to offer. Non-profit 
community agencies should be the preferred basis of care and 
service delivery; deviations from this policy should occur only 
in exceptional circumstances. ^^^ 

Some operators may find this approach limiting; others, 
however, may view the narrowing of their responsibilities as 
liberating. The tasks that operators will be called on to per- 
form will be restricted, and, one hopes, the demands on their 
time reduced. This may make their job somewhat easier and 
less stressful. 66 



RECOMMENDATION 59: Tliat increased per diem funding for 
operators not be viewed as the appropriate way to improve the 
quality of life for rest-home residents, and that operators of 
domiciliary hostels be encouraged to move towards a role that 
approximates that of landlords as closely as possible. 



Life Near the Bottom 161 



We note recommendation 246 of SARC called for a higher per 
diem to operators in the short term. As we indicate above, we 
consider such an approach counterproductive in the context 
of moving away from the domiciliary-hostel funding 
approach. 

This Commission is unable to recommend a major increase 
in the per diem hostel rate for several reasons: 

1. the 1989 MCSS study cited above found no justification 
for such an increase, notwithstanding the acknowledged 
methodological and data limitations of its survey; 

2. the current and future trend, which we strongly endorse, 
is to separate accommodation and care services; 

3. it would be unwise to make major changes while the 
current census of hostels is under way, as we lack objec- 
tive data of even the most basic descriptive type concern- 
ing domiciliary hostels; once this information is known, 
however, it does not follow that government should fund 
the various services that operators report they are provid- 
ing; and 

4. to strengthen the present system, even on an interim 
basis, would be at odds with the goal of ending the hostel 
system and its per diem payments to operators for the 
delivery of care services. 

RECOMMENDATION 60: That no increases in the level of 
per diem funding to operator (in real terms) be considered 
at present. 



WHO GETS THE CHEQUE? 

A single monthly cheque for all GWA residents of a hostel is 
written by the municipality to the operators: this contradicts 
the Commission's central principle of resident empowerment, 
and cannot be supported. 



162 The Rest Home As Home 



We prefer that separate monthly payments be made by the 
municipality for each resident, co-payable to operator and res- 
ident, with both signatures required for deposit or cashing. To 
avoid the need to issue multiple cheques, it may be sufficient 
that each resident authorize payment each month; that is, 
operators will still receive a single cheque, but all residents 
will sanction payment of their share of the rent and cost of 
optional services. 

RECOMMENDATION 6l: That the domiciliary-hostel pay- 
ment system from municipalities to operators be modified 
so as to involve residents directly. 

The Commission recognizes that this change would be more 
symbolic than substantive. If operators physically lay out a 
cheque for endorsement by each resident, the right to with- 
hold one's signature is likely to be more theoretical than real. 
Be that as it may, symbols are an important part of empower- 
ment. 

By contrast, GAINS(D) cheques are payable to residents alone. 
They are typically received at the premises in the operators' pres- 
ence and signed over on the spot. Any difference between the 
amount of the cheque and the rent is returned to the residents. 
Residents can, in principle, decline to sign over the cheque; but 
they rarely do so, for speedy eviction is sure to follow. 

If coverage under LTA is extended to rest homes, as we 
have recommended, this will tremendously empower resi- 
dents in this regard. Failure to endorse cheques — whether the 
individuals' GAINS(D) cheque or co-payable cheques from 
the municipality — will no longer lead to immediate eviction. 
Operators will have to begin proceedings under LTA based on 
non-payment of rent. 

Thus, coverage under the LTA is likely to lead to greater 
resident empowerment, even under the present domiciliary- 
hostel system. A co-payable municipal contribution is likely to 
add little substance, but will be a strong symbol of residents' 
empowerment. 



Life Near the Bottom 163 



TERM OF CONTRACTS 

The termination of agreements with individual operators is seen 
by some municipalities as difficult and potentially expensive. 
One municipal counsel has drawn our attention to contracts that 
give operators the right to accommodate domiciliary-hostel resi- 
dents in perpetuity. He suggested that agreements should have 
finite terms, which could be renewed at the discretion, of the 
municipality.67 

RECOMMENDATION 62: That the General Welfare Assis- 
tance Act Regulations be amended to specify that no 
municipal hostel agreement with operators can exceed one 
year. Such contracts may be renewed annually. 



A MAXIMUM SIZE 



67 The Commission also notes 
that the Habitat contract with 
operators gives Habitat the 
right to terminate the contract 
on ninety days' notice with- 
out cause. This clause was 
"designed to prevent exten- 
sive discussion or litigation 
arising from the need to ter- 
minate a contract." Habitat 
also requires that a new con- 
tract be signed each year 
"and there is no stipulation 
that cause must exist or be 
proved if a new contract is 
not signed." 

68 We do note many luxury 
retirement homes are built 
on the model of apartment 
buildings with private indi- 
vidual suites and very large 
total numbers, and we have 
heard no concerns expressed 
about size in these settings. 



In some communities, hostels are built on the hospital model 
and function in effect as "institutions." Resident populations of 
more than 100 are not uncommon. In such environments it is 
difficult to think of hostels as homes. 

It is our view that large and necessarily depersonalizing 
rest homes must be down-sized as soon and as fast as possi- 
ble. It would be our preference to mandate a maximum upper 
limit to the number of residents in any domiciliary hostel any- 
where in Ontario. 68 We do not believe that any resident of a 
rest home who is funded under GWA should reside in a 
mega-institution in the guise of community accommodation. 

RECOMMENDATION 63: That the General Welfare Assis- 
tance Act Regulations permit hostel funding only to resi- 
dences below a provincially determined maximum resident 
capacity. 



This maximum resident capacity in hostels should be set by 
the minister and should be consistently reduced on a staged 



164 The Rest Home As Home 



69 The PNA is included in the 
monthly cheque received by 
the operators from the munic- 
ipality, but in some cases it 
appears the money is not 
appropriately passed on to 
residents. 

70 The PNA was increased from 
$100 to $112 in October 1991. 



basis over a set number of years: the reduction rate can be 
monitored and adjusted according to the capacity of the com- 
munity to absorb residents. No final maximum size need be 
set in advance, as this too can be monitored. 



Personal-Needs Allowance 



By far the most frequent complaint expressed by residents con- 
cerned their lack of spending money after payment of room and 
board. Persons not in hostel accommodation often have to sign 
over their entire social-assistance cheque and be left with noth- 
ing. Residents funded under the domiciliary-hostel provisions 
are entitled to a $112 monthly personal-needs allowance 
(known as PNA or "comfort" allowance) from the operators; but 
this small sum does not go far and, it seems, it is not always 
received.69 

The issue once again is empowerment and control. Without 
adequate money for personal needs, individuals are vulnerable 
and powerless. It is a central task of the social-assistance system 
to ensure that residents of rest homes, including hostels, have 
sufficient funds to exercise discretion over how they wish to 
lead their lives. A PNA of $112 in hostels is woefully inade- 
quate, and we endorse all moves to increase this sum.^o 

We are encouraged by a change in the GWAA Regulations, 
effective October 1991, which specified that the PNA is a right 
that must be paid; previous regulations were silent on this 
issue and the PNA was not always passed on by operators. 

The October 1991 changes did not specify that the PNA be 
provided in the form of cash. Yet without such clarification, 
the PNA is not an unambiguous right. We have been told of 
cases in which the PNA is withheld by operators in exchange 
for essentials such as soap, toilet paper, and hygienic pads. 

The Commission recommends that MCSS explicitly require 
that operators include specified basic necessities of daily liv- 
ing (in particular, soap, toilet paper, and hygienic pads) as 
part of the accommodation-and-board package for which they 



Life Near the Bottom 165 



receive domiciliary-hostel per diem funding. Only by doing so 
can the withholding of the PNA from residents be precluded. 
This specification should be part of every agreement signed 
by every municipality with every operator.^i 

Furthermore, these basic necessities must be available in 
adequate supply, at all times, to all residents, without charge 
by operators. Ideally, these commodities should be available 
on an open basis to be used as needed by residents. If this 
proves operationally impossible, operators may dispense; but 
they must supply as much as is needed for the residents' use, 
whenever needed and without challenge 

RECOMMENDATION 64: That the General Welfare Assis- 
tance Act Regulations be amended to require that all domi- 
ciliary-hostel agreements include a requirement that the 
operators provide, without additional charge, all needed 
supplies of soap, toilet paper, and hygienic pads. 

Some operators sell cigarettes, candies, etc. in a canteen. Resi- 
dents have alleged exorbitant overcharging as a way of "skim- 
ming" the PNA. Although operators are not obligated to oper- 
ate a canteen, if they choose to do so there should be a cash 
transfer from residents to operators for each transaction. 
Given that the buyers are vulnerable, may be unable to do 
comparative shopping, and are not always informed con- 
sumers, operators should not charge prices in excess of those 
prevailing in the neighbourhood. ^2 

RECOMMENDATION 65: That if rest-home operators 
choose to offer a "canteen service," they may not charge 
prices above those prevailing in the neighbourhood. 



71 Municipalities should, of 
course, be free to negotiate a 
broader definition of "essen- 
tials" as part of their domicil- 
iary-hostel contracts with 
operators. 

72 The Commission is not 
attempting to present a legal 
standard for excess pricing. 
The intent is to prevent 
exploitation or price gouging 
(as these terms are common- 
ly understood). 

73 The Commission visited one 
rest home where we were 
shown a detailed ledger with 
each resident's name and 
enumerated disbursements 
from the PNA: there was, for 
example, a $7 weekly debit 
for a haircut for each resi- 
dent, yet it was obvious that 
most residents had not 
received this benefit in some 
time. 



There have also been numerous complaints expressed to the 
Commission that PNA funds are simply not distributed by 
operators,^^ or are used as a behavioural tool for operators to 
ensure residents comply with the operators' wishes. (On the 
other hand, residents may believe their money is being with- 



166 The Rest Home As Home 



74 This approach will have a 
further benefit beyond 
empowering the residents in 
making decisions about their 
own lives: people from out- 
side visiting the residence 
regularly will serve an added 
monitoring function, merely 
by virtue of their presence. 

75 If the PNA is distributed by 
some outside agency, the 
municipality would issue one 
cheque to the agency cover- 
ing and payments due the 
agency's resident clients. The 
agency would be responsible 
for passing on the $112 to 
each person. 



held when, in fact, that is not the case. Even a package of 
cigarettes is so costly that $112 does not go far.) GWAA Regu- 
lations do not set out the manner of distribution of the PNA; 
as a result, operators often decide when, how, and under 
what circumstances the money will be distributed. This is fun- 
damentally unacceptable. 

Some residents may wish to take their $112 in a lump sum, 
and that is their right, unless they have been declared by a court 
to be incapable of handling their money. (Regardless of how it 
is spent, a personal-needs allowance is just that — a payment to 
cover personal needs as determined by individual residents.) 

The personal-needs allowance is a right that cannot be 
dependent upon operators' good faith or good will. In prac- 
tice, this necessitates an absolute ban on operators acting as 
banker or trustee of the PNA. 



RECOMMENDATION 66: That owners/operators/staff of 
rest homes shall neither dispense nor trustee a personal- 
needs allowance, under any circumstances. 



Some residents will want their money held by a tmstee and 
allocated periodically; in such cases an agency outside the 
residence must assume this task, visiting the home on a regu- 
lar basis. Social advocates, possibly employed by the Advoca- 
cy Commission, may help groups of residents to locate an 
appropriate, independent tn.istee.^^ 

If the PNA is paid to a trustee, there should be a require- 
ment that it be used for personal needs, not to supplement 
the rent. 

A direct-bank-deposit option was offered to all FB recipi- 
ents in May 1991, and the feasibility of extending this to GWA 
is being studied. These changes may offer some modest finan- 
cial protection to residents in hostels. We particularly recom- 
mend that the PNA be distributed as cheques payable to 
recipients, separate from the payment of the rest of their 
monthly social assistances^ 



Life Near the Bottom 167 



RECOMMENDATION 67: That the personal-needs 
allowance be paid separately from other social-assistance 
payment to recipients who qualify for it. 

Under FB, a "pay-direct" system in which social-assistance 
money goes directly to operators is not permitted. However, a 
director of FB can appoint operators as trustees for social- 
assistance recipients, and the money will then go directly to 
the operators. ^6 

This Commission prefers that some outside agency be 
approached by government (and compensated, directly or 
indirectly) to serve as trustee for residents in hostels when 
appropriate. If residents appeared unlikely to control their 
money wisely, their consent should be sought for an order of 
trusteeship. If residents refused consent and did not save 
enough money for accommodation out of their FB cheque, 
eviction would likely follow and the individuals might spend 
the month in an emergency shelter. Only if this happens a 
number of times should a trustee be appointed, but such a 
decision should always be appealable to the Social Assistance 
Review Board (SARB). 



76 This decision to appoint a 
trustee under the Family Ben- 
efits legislation is not appeal- 
able to SARB because it does 
not involve suspension or 
cancellation of, or ineligibility 
for, benefits. 



RECOMMENDATION 68: That the Ministry of Community 
and Social Services arrange with suitable outside non-profit 
agencies to serve as trustee for those residents who wish 
such a service. That where a trustee is appointed under 
Family Benefits legislation, the social-assistance recipient 
should be permitted to appeal the appointment to the 
Social Assistance Review Board. That the regulations to the 
Family Benefits Act prohibit the appointment of rest-home 
owners/operators/staff as trustees for rest-home residents. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 



PART III 



Empowering 
and Protecting 
Vulnerable 
Adults 



170 Empowering and Protecting Vulnerable Adults 



In Part I of this Report, we concluded that comprehensive 
regulation of rest homes on the nursing-home model was not 
the best way to achieve our goals of empowering and offer- 
ing protection to vulnerable adults. We observed that the pro- 
tection promised by comprehensive regulation is uncertain, 
the empowerment non-existent. 

We now turn to our recommended alternative, and effec- 
tive empowerment of residents is its foundation. Ours is a 
multi-faceted response, including the following general rec- 
ommendations: 

1. a Residents' Bill of Rights for rest homes, effectively 
enforced through a new Rest Homes Tribunal. This recom- 
mendation is premised on the availability of adequate 
advocacy supports, both informal — by relatives and 
friends — and those to be created under Bill 74, the pro- 
posed Advocacy Act, 1991; it also assumes the mandatory 
reporting of abuse in rest homes; 

2. mandatory registration of all rest homes with the munic- 
ipality; 

3. minimum safety standards regarding health, fire, and the 
physical environment, and proposals to improve the 
accountability of local inspectors; 

4. minimum staffing ratios for all rest homes and a mini- 
mum "competence" standard for staff who assist with med- 
ications; and 

5. quality of care, above the safety minimum, to be 
attained through mandatory written contracts rather than 
municipal by-laws. 

Each of these areas will be discussed in some detail in the 
following chapters. 

We begin, however, with a brief look at two existing pro- 
tections: the Criminal Code of Canada and the Ontario 
Human Rights Code. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

8 

Two Existing Protections 



The Criminal Code of Canada and the Ontario 
Human Rights Code have traditionally been con- 
sidered of limited relevance in the context of rest 
homes; however, within the past year, greater 
potential has been demonstrated through success- 
ful legal action. Indeed, they may represent impor- 
tant complements to the other measures we recommend, 
although they would certainly not be sufficient on their own. 



THE CRIMI NAL CODE 



1 The home's residents were 
mostly people with organic 
brain syndrome (as a result of 
Alzheimer's disease and/or 
excess consumption of alco- 
hol over a long period of 
time). R. v. Berry and Berry, 
unreported oral reasons for 
judgement of Ontario Court 
of Justice (General Division), 
District Municipality of 
Muskoka (Hogg, O. C. J.), 
dated February 18, 1991. 

2 Contrary to Criminal Code 
sections 203 and 204. 



In early 1991, the operators of an unregulated rest home near 
Dorset, Ontario, were convicted of criminal neglect, i The 
charges stated that the operators, being responsible for the 
care of Crozier Manor residents, did by criminal negligence 
cause the death of one resident and bodily harm to another 
resident. 2 The former died as a result of scalding in a bath; the 
latter suffered severe injury from frostbite after wandering 
from the premises on a winter's night. 

To obtain a conviction under the Criminal Code, the prose- 
cution had to prove that the operators, by omitting to do any- 
thing that it was their duty to do, showed a wanton or reck- 
less disregard for the lives or safety of these two residents. To 



171 



172 Empowering and Protecting Vulnerable Adults 

3 R. V. Berry and Berry, (note 1 prove a legal duty existed, it had to be shown that (a) these 
above), p. 19. 

residents were under the charge of the operators or staff; (b) 

these residents were unable to withdraw from that charge by 

reason of age, illness "or other cause"; and (c) these residents 

were unable to provide themselves with "the necessities of 

life." 

It is not simply the operators' failure to perform that duty, 
or mere carelessness, but a "wanton or reckless disregard" for 
the life and safety of the residents that is culpable. Moreover, 
such disregard must be proven beyond a reasonable doubt, 
because this is a criminal offence. 

It is not clear from the decision how one man came to be 
in the bathtub in which the water was too hot and how 
another was able to wander away from the residence. Howev- 
er, the court found that the residents were in the care of the 
operators, who "were under a duty to provide qualified and 
adequate care for those in their charge." 

In his decision, the trial judge emphasized the "meagre or 
non-existent" training of the staff. The teenage sons of the 
operators and their friend were regularly left in charge of 
Crozier Manor; while they were in charge "there was improp- 
er and immature behaviour on numerous occasions." When 
the severely frostbitten resident was returned to the home, the 
alarm was sounded but no one responded: the two sixteen- 
year-olds in charge were asleep, and the alarm system may 
have malfunctioned. 

Recognizing that accidents will occur, the court made a 
considerable effort not to impose an unfairly high care stan- 
dard on the operators. "What is required is a reasonable stan- 
dard of care. "5 However, the court found that agreeing to pro- 
vide care to very vulnerable residents and then providing 
inadequate supervision may, in itself, constitute an act of 
criminal negligence. 

In my view, taking all the evidence into account, the plac- 
ing of a l6 or 17 year old boy in charge of some 30 resi- 



Two Existing Protections 173 



dents of the type that have been described was placing the 
well being and the very lives of the residents at risk and 
under the circumstances to do so was an act of criminal 
negligence.'* 

The judge's opinion might place a future onus on operators of 
rest homes to make very clear what care responsibilities they 
are assuming and to ensure that these are met. It would not 
be the responsibility of the placement agency or family (if 
involved) to determine what responsibilities operators are 
assuming; rather, operators must make this clear. Because 
severe penalties may be imposed on operators convicted of 
criminal negligence, they may no longer accept residents — 
merely because they are able to pay — if they are unable to 
care for them adequately; operators may be obliged to 
promise no more than they can deliver. ^ 

The Commission does not know how many charges of 
criminal negligence in rest homes have been laid and success- 
fully prosecuted. The criminal law is a blunt instrument for 
protecting or redressing harm to residents in care situations; 
however, the worst offenders can be successfully prosecuted 
in certain circumstances. Certainly, the conviction in this case 
may become a deterrent to the worst behaviours of some rest- 
home operators. 



HUMAN R IGHTS LEG ISLATI ON 

Two recent cases, one in Ontario^' and one in Quebec, ^ 
demonstrate that vulnerable persons can sometimes obtain 
appropriate redress of their grievances under human rights 
legislation. Neither case dealt with rest homes as defined for 
purposes of this Inquiry; however, both show that complaints 
against operators of accommodation can be successful when 
operators violate the human dignity of residents. 

The Ontario case dealt with a young woman who has 



4 R. V. Berry and Berry, (note 1 
above), p. 18. 

5 The role of the doctor at the 
local hospital was also of 
interest to the judge. The 
operator of the home "did 
not advise the doctor that 
none of the staff at Crozier 
had any care-giving training. 
The doctor therefore 
assumed, understandably so, 
that there were professional, 
trained caregivers present." 

Such misinformation 
about the care provided in a 
rest home is unacceptable. 
Doctors in local hospitals 
must be better informed 
about the care services pro- 
vided — and not provided — 
by rest homes. 

Operators should ensure 
that all local hospitals have 
information about the extent 
of responsibility they have 
assumed along with the qual- 
ifications and training, if any, 
of staff. As well, hospitals 
should be able to access it 
independently through the 
on-line information system 
that the Commission has rec- 
ommended. It is particularly 
important that all personnel 
in the emergency units of 
hospitals, including physi- 
cians, have this information 
and act accordingly. We dis- 
cuss this further in Part IV. 

6 In the Matter of Ms K.A. v. 
Mrs. S.P., an unreported 
decision of the Board of 
Inquiry (London, Ontario), 
Ontario Human Rights Com- 
mission, dated January 8, 
1991. 

7 Resolution COM-353-5. 1, 
Unreported decision of Com- 
mission des Droits de la Per- 
sonne (Montreal, Quebec), 
dated January 25, 1991. 



174 Empowering and Protecting Vulnerable Adults 



This case dealt with eighty- 
eight residents who worked 
without pay to operate and 
maintain a Montreal "living 
centre," which was operated 
on a for-profit basis and fully 
funded by government. 

Unlike the Ontario Human 
Rights Code, the Quebec 
Charter of Human Rights and 
Freedoms expressly prohibits 
exploitation of persons with 
disabilities (Article 48, para- 
graph 1. "Exploitation" is 
defined by the Quebec 
Human Rights Commission as 
any advantage a person takes 
from another because of the 
handicap of the latter. 

The Commission decision 
in favour of the residents was 
the first in Canada based on 
the systemic exploitation of a 
vulnerable group. 



cerebral palsy involving some cognitive deficiency as well as 
ataxia (lack of muscle co-ordination). She also has bilateral 
cataracts, which impair her vision considerably. 

In 1986, the woman, her mother, and her socig.1 -worker 
decided that she would live independently, and she moved 
into a basement apartment. At first, relations between the 
sixty-eight-year-old female proprietor and the young woman 
were quite amicable, involving visits and shared coffee 
breaks. Then the young woman assumed a more independent 
lifestyle than the proprietor desired or thought appropriate. 

The relationship degenerated, and ultimately the young 
woman moved out. During the period of acrimony, the pro- 
prietor asked her: "What's a retarded girl like you doing hav- 
ing a boyfriend?" Later she sent a note that began: "Listen 
retarded and listen good." 

Section 2(2) of the Ontario Human Rights Code states that 
"Every person who occupies accommodation has a right to 
freedom from harassment by the landlord ... because of ... 
handicap." 

The Commission found that the proprietor's actions violat- 
ed the tenant's rights under this section. 

Awards for general damages up to $10,000 can be made by 
the Commission to reflect "not only the mental anguish which 
wilful or reckless conduct may cause, but the injury to the 
complainant's dignity and self respect." The sum of $2,000 
was awarded for this purpose. Special damages were also 
awarded to offset direct expenses, such as the cost of moving 
to another apartment. 

In the Quebec case, the Quebec Human Rights Commis- 
sion found that eighty-eight vulnerable residents had been 
systemically exploited by an institution. « It awarded $1 million 
in damages, the largest award for human rights violations in 
Canada. 

Both cases clearly indicate that violations of human rights 
can be addressed successfully through human rights legisla- 
tion. Indeed, remedies at present available through the Crimi- 



Two Existing Protections 175 



nal Code and human rights commissions may deter certain 
unacceptable behaviours, and can provide redress if that con- 
duct does occur. Although we should not rely unduly on these 
remedies, neither should we underestimate their potential to 
protect vulnerable residents. 

We now turn our attention to other protections that the 
Commission considers essential for residents of rest homes. 
Foremost among these is the residents' bill of rights. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 



9 

A Residents' 

of Rights 



Bl 



1 The bill became part of the 
Nursing Homes Act in 1987. 
In municipal and charitable 
homes for the aged, a bill of 
rights has been adopted as a 
matter of policy. 

2 The bill of rights can be 
enforced only by laying a 
charge under the Nursing 
Homes Act. The charge is 
then heard in provincial 
court, like any other provin- 
cial offence, such as a viola- 
tion of the Highway Traffic 
Act. 



A bill of rights for residents of rest homes is the 
symbolic centre of this Report. It embodies the 
Commission's overriding principle that the resi- 
dents come first, and that the needs and interests 
of all others are secondary. If the government of 
Ontario is able and willing to enact a meaningful 
and enforceable bill of rights, it will have gone a long way 
towards achieving the purpose of the Inquiry. 

RECOMMENDATION 69: That a bill of rights for residents 
of rest homes be enacted as a matter of priority. 

The Commission is well aware of the pitfalls. For example, a 
bill of rights exists for residents of nursing homes. i Communi- 
ty and advocacy groups had great expectations of that bill of 
rights, for its language is powerful. Yet there has not been a 
single prosecution under the bill, although we are told that 
threats to invoke it have had effect on occasion. 2 This raises 
doubts about the effectiveness of the bill, for without effective 
enforcement, it is little more than a statement of good inten- 
tions. 

The Commission has heard about many problems and 
complaints that could be resolved through an effective resi- 
dents' bill of rights for rest homes. Most have been expressed 
by residents themselves, directly or through peer support 



176 



A Residents' Bill of Rights 177 



groups. The tone and content of these requests have been 
truly compelling: what these vulnerable adults are seeking is 
so modest, yet potentially so empowering. 

The violation of the self-esteem and sense of security of 
vulnerable adults, particularly those with minimal incomes liv- 
ing in boarding homes, is of great concern to this Commis- 
sion. Residents are asking only for rights that the rest of us 
take for granted: the courtesy of being called by one's own 
name, rather than by some pejorative label assigned by a 
punitive staff member; the right to remain in one's residence, 
particularly in winter, rather than being forced out into the 
streets from breakfast until dinnertime or at the whim of oper- 
ators; the likelihood that personal items — such as a package 
of cigarettes or even one's own clothing — will not be stolen, 
searched, or disposed of without one's agreement or in one's 
absence; the control of one's spending money, without being 
ripped off by unscrupulous operators; the right to be free 
from sexual assault by operators, staff, and other residents. 

The Commission is absolutely convinced that such events 
occur with depressing frequency in the rest homes of this 
province, that the stories we have heard are neither exaggera- 
tions nor the fabrications of disturbed minds. They were told 
to us with clarity and consistency, and with a passion that can 
come only from lived experience. A meaningful bill of rights 
can provide both an important symbol of the rights of resi- 
dents and an effective means to ensure these rights. 

Some infringements of the rights of residents are prohibit- 
ed by statute: sexual assault and theft, for example, are crimi- 
nal offences. Many other rights — a surprising number, in 
fact — will follow automatically with coverage under the Land- 
lord and Tenant Act iLTA): the right to come and go as one 
pleases; the right to invite visitors into one's own home; the 
right to form a tenants' association or residents' council; the 
right to not be moved, individually or in a group, from one 
home to another, without consent; the right to be protected 
against eviction, either temporarily, as punishment, or perma- 



178 Empowering and Protecting Vulnerable Adults 



3 Bill 108, the Substitute Deci- 
sions Act, 1991 and Bill 109, 
the Consent to Treatment Act, 
1991. 

4 Anyone can distribute oral 
medications. The College of 
Nurses has guidelines for RNs 
and RNAs for the direct 
administering of medications 
and for the delegating of 
responsibilities to unregulated 
personnel. The guideline 
states that administering med- 
ication by intravenous injec- 
tion or other parenteral injec- 
tions is a skilled nursing act 
that may not be delegated; 
however, in practice such 
responsibilities are often dele- 
gated to unregulated staff. 
The College is currently 
examining these guidelines, 
which date from 1987. 

5 The inability to demand and 
receive respect for one's 
human dignity without out- 
side support may even be 
taken as a rule-of-thumb indi- 
cator of vulnerable status. 



nently, at the whim of the operator. Indeed it is precisely to 
ensure these rights that we are so adamant that all rest homes 
in the province be covered by the LTA. 

The right to manage one's property and make personal- 
care decisions is protected under pending legislation. 3 For 
example, the right to refuse medication or treatment and the 
right to control one's own money can be overridden only if 
the resident is found legally incapable. Even if a court 
appoints a guardian to make decisions on an ongoing basis, 
the guardian will have decision-making power only in those 
specific areas in which the person was found incapable. 

The right to see and receive support from advocates 
accountable to the proposed Advocacy Commission may also 
protect vulnerable adults in Ontario. Provided that legal pro- 
tections for the privacy of vulnerable persons are observed, 
advocates representing the Advocacy Commission will be able 
to enter rest homes without explicit invitation. 

Under the proposed Regulated Health Professions Act, 
1991 (Bill 43), it will be illegal for persons not authorized by 
a health-profession act to administer medications through 
injections and inhalations unless authority is properly delegat- 
ed.4 

Some of the rights we would include in our bill of rights 
for rest-home residents extend further than the rights that 
accrue to other members of society. For example, the most 
general right we advocate is "respect for the basic human dig- 
nity of the resident." This, perhaps surprisingly, is not a right 
of persons living in their own homes in the community. Yet 
residents of rest homes must be assured such a right precisely 
because of their vulnerability. The general population typical- 
ly possesses the options, power, and resources to demand 
and receive this dignity or to leave a setting in which this dig- 
nity is not honoured:^ we command a measure of dignity 
through the power to withdraw our resources. 

Vulnerable adults in rest homes do not generally have such 
meaningful options. It is therefore necessary for the govern- 



A Residents' Bill of Rights 179 



ment of Ontario to ensure, by legislative enactment, that vul- 
nerable adults in dependent living arrangements are entitled 
to and receive courtesies and treatment that others are able to 
obtain on their own, i.e., to minimize or offset the imbalance 
of power within a rest-home setting. 

Even though certain rights are assured to vulnerable adults 
through other means, reiteration in the bill of rights will 
emphasize that the rights the rest of us take for granted are 
guaranteed to those who live in rest homes. Moreover, in 
some cases, remedies through the bill of rights might be more 
accessible to residents than remedies through other avenues. 



6 All rights are to be interpret- 
ed subject to non-interfer- 
ence with the rights, dignity, 
and privacy of other resi- 
dents. 



The Bill of Rights 



The Commission has identified general areas of concern, 
which call for a response in a formal bill of rights; within each 
area, we indicate a number of specific rights that represents a 
minimum, rather than a comprehensive or exhaustive, listing. 
In conjunction with these specific rights, a statement of broad- 
ly worded rights should be developed to enable cases to be 
argued on an individual basis. This approach offers flexibility, 
with boundaries that can be defined with use. 

We wish to emphasize that our use of language and termi- 
nology is not meant to be legally precise: we are setting out 
principles upon which we hope there can be substantial agree- 
ment. It is our recommendation that a small group be consti- 
tuted as soon as possible, with speedy input from the major 
affected parties, to draft the precise legislative instrument. 

A rest-home residents' bill of rights must ensure that opera- 
tors and staff observe and uphold the basic rights of residents. 
The concerns that must be addressed in a bill of rights 
encompass the following/' 



1. respect for the basic human dignity of the residents; 



180 Empowering and Protecting Vulnerable Adults 



7 Agriculture Canada, Food 
Market Analysis Division, has 
compiled information on a 
"nutritious" and a "thrifty 
nutritious" food basket using 
sixty-four and forty-three 
foods respectively, drawn 
from eleven food groups. The 
minimum of the Canada Food 
Guide can be met with 
1,000-1,400 kilocalories/day, 
which could lead to malnour- 
ishment for some people. 

New guidelines being 
developed by Health and 
Welfare Canada will probably 
recommend a nutrient intake 
for energy of 1,800 kilocalo- 
ries for women aged fifty to 
seventy-four and 2,300 for 
men in that age range. 
Women and men over seven- 
ty-five need 1,700 and 2,000 
kilocalories respectively. Per- 
sons with psychiatric histories 
tend to require more food, as 
medications increase their lev- 
els of hunger, as may anxiety, 
and boredom. 

8 The right to come and go is 
particularly controversial. 
Some residents of rest homes 
tend to wander, and operators 
contend that without the 
authority to restrict residents' 
freedom of movement they 
cannot be responsible for 
their safety or security. The 
resolution of this issue 
depends in part on the duty 
of care that operators assume 
with respect to residents. We 
have found that most opera- 
tors do not accept a legal duty 
of care for residents. More 
important, however, is our 
view that operators and/or 
families ought not to make 
personal subjective assess- 
ments of the competence of 
residents. If guardianship 



2. a safe, secure, and clean living environment: 

(a) clean and private bathing and toilet facilities includ- 
ing, without additional charge, sufficient soap, toilet 
paper, and hygienic pads; 

(b) a secure and locked storage area for personal 
effects, and the key to it; 

(c) a key to the home (unless there is open twenty- 
four-hour access), and to one's bedroom and bathroom, 
each of which must have a lock; 

(d) a secure, locked area for storage of medications; 

(e) meals, as contracted, that meet the minimum stan- 
dards of the Canada Food Guide^ and are served at 
appropriate times; operators must accommodate reason- 
able needs of residents (for example, with sufficiently 
flexible scheduling of meals to meet work or compara- 
ble needs of residents); 

3. personal rights: 

(a) the right to be treated as competent in all areas of 
decision-making in accordance with the law. This 
includes decision-making in all personal and financial 
matters, the freedom to come and go, and a prohibition 
on operators' requiring residents to sign in and out;^ 

(b) the right to dress and to decorate one's own living 
area as one wishes; 

(c) the right to designate someone to receive any and all 
information to which the residents have a right of access; 

(d) the right to know who owns and operates one's res- 
idence (including the names, addresses, and phone 
numbers of owners and operators) ;9 

(e) residents shall not be required to do work or ser- 
vices for or on behalf of operators; 

(0 residents' right to privacy shall be respected at all 
times; this includes prohibitions on intrusion into resi- 
dents' living areas, except as provided under the Land- 
lord and Tenant Act, and on interference with residents' 
personal belongings; 



A Residents' Bill of Rights 181 



(g) no physical search of the residents; 
(h) no restrictions on communication by telephone and 
mail, or on access to print or broadcast media, including 
the right to send and receive written correspondence 
unopened; 

(i) the right to unimpeded access to independent advo- 
cates, lawyers, or physicians at any time; 
(j) the right to receive visitors, including staff frorn com- 
munity-based programs; 

(k) the right to form a tenants' or residents' association 
and to meet without the presence of owners, operators, 
or staff; 

(1) the right to be addressed by name and in non- 
patronizing language; 

4. confidentiality: 

(a) if files or records on residents are kept, the right to 
complete access by the residents to all information con- 
tained therein; 

(b) no information about residents shall be released to 
any third party except with the written consent of the 
residents; residents shall have the right to correct any 
misinformation held or released by operators and to 
attach a statement of their position on an issue to that of 
the operators; 

5. sexuality: 

(a) the right to engage in consensual sexual behaviour 
that does not interfere with the dignity and privacy of 
other residents; 

6. religion: 

(a) the right to engage in religious practice in any man- 
ner that does not interfere with the dignity and privacy 
of other residents, and the right not to engage in reli- 
gious practice; 

7. consent to treatment: 

- (a) the right to be considered competent to accept or 
refuse treatment in accordance with the law; 



orders have been made, then 
the guardians (who cannot 
be the operators) may autho- 
rize the operators to restrict 
the residents' movements; 
operators may accept the 
responsibility, or not, on 
terms negotiated between the 
parties. Without a guardian- 
ship order or a duty to care, 
there is no legal authority for 
anyone to detain individuals; 
indeed, doing so may be 
considered unlawful confine- 
ment. Movement on the part 
of residents of a rest home 
can be constrained only by 
the legal process under cur- 
rent or newly proposed 
provincial legislation or if the 
residents' movements would 
constitute a danger to the life 
or safety of the residents and 
the operators have a legal 
duty of care. 

9 This information must be 
posted prominently within 
the residence. 



182 Empowering and Protecting Vulnerable Adults 



10 The Commission recom- 
mends a standard for the 
competence of persons who 
assist residents to take medi- 
cations. See chapter 12. 

11 The telephone number of the 
Advocacy Commission 
should be posted prominent- 
ly in every rest home. Opera- 
tors should be required to 
provide residents, at the 
point of entry, with printed 
information, prepared by the 
Commission, concerning 
advocacy and their rights. 



(b) the right to be free within the premises from pres- 
sure or coercion to accept or refuse medical treatment, 
including psychiatric treatment; 

(c) the right to self-medicate in accordance with the 
law; 

(d) if someone assists with medication, the right to 
one's own medication — not another's — received from a 
competent person^" according to the prescribing doc- 
tor's or pharmacist's instructions; 

8. restraint and seclusion: 

(a) the right, to be free from punitive restraint or deten- 
tion measures. This includes a prohibition on the use of 
binding, tying, chemical, and/or other similar restraints, 
and locked rooms and enclosed spaces; 

9. abuse: 

(a) the right to freedom from physical, verbal, emotion- 
al, and sexual abuse; 

10. advocates and other outside supports: 

(a) the right to have unimpeded access to independent 
advocates (as specified in the proposed Advocacy Act, 

(b) the right to have access to community support ser- 
vices and the right to choose the supplier of one's pur- 
chased goods and services; 

(c) no one shall impede or deny entry to a residence of 
any person or advocate invited into the premises by the 
residents. 



Therefore: 



RECOMMENDATION 70: That the residents' bill of rights 
include rights in the following general areas: respect for the 
basic human dignity of the residents; a safe, secure, and 
clean living environment; personal rights; confidentiality; sex- 
uality; religion; consent to treatment; restraint and seclusion; 
freedom from abuse; advocacy and other outside supports. 



A Residents' Bill of Rights 183 



A copy of the bill of rights should be provided by the opera- 
tor to every resident on signing a lease or moving into the rest 
home. It should contain an explicit statement that nothing in 
the lease or contract for optional services can override the 
rights contained in the bill of rights. 

Finally, we stress the requirement of "respect for basic 
human dignity of the resident" as the crucial point: basic 
human dignity must be respected. A variety of concerns not 
specifically enumerated elsewhere can be argued on this 
basis. 

No legislative enactment can guarantee that violations will 
not occur: there is no way to ensure that a Crozier Manor or a 
Cedar Glen will never happen again. But we do believe that a 
clear and strong endorsement of these rights and an effective 
enforcement mechanism will make clear that behaviours and 
actions that we have tacitly condoned will no longer be toler- 
ated in the province of Ontario. 



12 This argument is compatible 
with the idea of the rest 
home as the individual's own 
home. It merely adds a con- 
dition that the rest home is a 
particular type of home, in 
which power imbalances 
occur (and should be 
redressed). 



MANDATORY REPORTING 



In any discussion of enforcement of residents' rights, the first 
matter to be raised is, inevitably, mandatory reporting of 
abuse. 

The concept of a legal obligation to report abuse has gen- 
erated considerable heat, even within individual community 
groups. Some have argued an analogy to child welfare: there 
is a legal obligation to report child abuse, although only a 
professional can be prosecuted for non-reporting. 

Others claim that such a requirement would be infantiliz- 
ing. A middle position opposes mandatory reporting concern- 
ing people living in their own homes, but accepts the idea for 
those in settings such as rest homes, where significant power 
imbalances occur. 12 

It -is, therefore, not without some ambivalence that this 
Corhmission recommends mandatory reporting of abuse in 



184 Empowering and Protecting Vulnerable Adults 



rest homes. Physical abuse of vulnerable persons is clearly a 
criminal offence, to be dealt with by the police. Emotional 
and other abuses that violate the proposed bill of rights will 
become the concern of the Rest Homes Tribunal (which we 
discuss next). 

We acknowledge that many policy and operational issues 
ensue from this recommendation, and that we do not deal 
with them here. However, we see the requirement to report 
abuse, however defined, as a strong and clear public state- 
ment that certain types of behaviours are unacceptable. 
Although educational and voluntary programs are necessary 
and desirable, they are unlikely to bring about sufficient 
change. Attitudinal and behavioural change will come about 
expeditiously only when encouraged by the moral force of 
the law. 

We believe that most people, if given protection from sanc- 
tions, would report abuse even in the absence of a legal 
requirement to do so. Consider, however, a frail senior in a 
rest home subject to abuse but reluctant to have a relative 
report for fear of reprisal. The disagreement between the vul- 
nerable person and the relative may be settled more easily if 
the relative is able to argue that the law demands that the 
abuse be reported. The issue then becomes obeying the law 
rather than reporting abuse. As well, a specific legal mandate 
may be necessary to protect rest-home staff, who might other- 
wise decline to report for fear of losing their jobs. 

We understand that this debate has a highly symbolic 
aspect: abuse of vulnerable adults is undoubtedly intolerable; 
but equally so is the infantilization of residents. 

RECOMMENDATION 71: That there be a legal require- 
ment to report abuse of residents of rest homes. That there 
be a legal prohibition of sanctions or retaliation by opera- 
tors and staff against the allegedly abused resident and any 
person who reports the abuse of a resident in a rest home. 



A Residents' Bill of Rights 185 



The question remains: how and to whom to report abuse, and 
what responses are possible? It would be to the Rest Home 
Tribunal that many allegations of abuse and violations of the 
bill of rights would first come. It is to this body that we now 
turn the discussion. 



13 Some submissions have 
argued that the tribunal 
should also review decisions 
of local regulatory authori- 
ties, such as fire inspectors. 
The implications of such pro- 
posed responsibility are com- 
plex and will be considered 
separately, in chapter 10. 



A Rest Homes Tribuna 



This Commission has made an effort to avoid the creation of new 
bureaucracies and regulatory processes, while stressing govern- 
ment's responsibility to ensure that basic rights of rest-home resi- 
dents are respected and minimum health and safety conditions 
are enforced. 

In our view, there must be an easy and accessible way to 
ensure these basic rights are respected, and minimum stan- 
dards enforced. 

The Commission therefore recommends the creation of a 
Rest Homes Tribunal (RHT), whose primary mandate will be 
to ensure compliance with the rest-home residents' bill of 
rights. 13 

RECOMMENDATION 72: That a Rest Homes Tribunal be 
created. That the Rest Homes Tribunal assume administra- 
tive, mediative, and adjudicatory responsibilities with 
respect to the rest-homes residents' bill of rights. 



The RHT should have authority to deal with the full range of 
alleged violations of the bill of rights. It is hoped that the RHT 
would offer a user-friendly and informal atmosphere, in which 
issues could be resolved expeditiously. 

The RHT would undertake mediation and adjudication, but 
each arm would function independently. Thus, a complaint 
under the rest-homes bill of rights may involve a two-stage 
process: first, RHT staff would offer the parties relatively infor- 



186 Empowering and Protecting Vulnerable Adults 



mal mediation. If matters were not resolved, an adjudicatory 
proceeding would follow. 

RECOMMENDATION 73: That in dealing with the bill of 
rights, the Rest Homes Tribunal staff first offer an informal 
mediation process, followed by a second adjudicatory stage 
if necessary. 

We assume that, in many cases, when operators or staff have 
complaints drawn officially to their attention, unacceptable 
behaviour would .cease and the issue would be closed. How- 
ever, mediation would depend on the willingness of residents 
and operators to participate. One attempt at mediation would 
be the norm, unless both parties felt further activity would be 
beneficial. 

Complaints about violations of the bill of rights would be 
made directly to the RHT by residents or other persons. Usual- 
ly complaints about the treatment of a specific individual resi- 
dent would be dealt with only if that resident were the com- 
plainant or consented to the complaint being dealt with by the 
RHT. However, in some instances complaints would proceed 
to the RHT at the request of advocates or other concerned per- 
sons, when, for example, residents had been systematically 
intimidated by operators, as was the case at Cedar Glen. 

Residents could make complaints with or without the assis- 
tance of advocates or other support persons. Advocates 
appointed under the proposed advocacy legislation must be 
available to assist residents in lodging complaints and to make 
them aware of the existence and function of the RHT. As well, 
the complainant must have the assistance of appropriate 
social and legal advocates throughout the complaint process 
and during mediation. If the case comes to adjudication, resi- 
dents must have access to legal representation, including legal 
aid clinics and legal aid certificates. 

RECOMMENDATION 74: That rest-home residents have 



A Residents' Bill of Rights 187 



access to advocates under the proposed Advocacy Com- 
mission and, if eligible, access to legal representation 
under the Legal Aid Plan to pursue complaints before the 
Rest Homes Tribunal. 

Residents or staff who make complaints must also be protected 
from sanctions and retaliation by employers, operators, and staff. 

RECOMMENDATION 75: That there be legal prohibition 
of sanctions or retaliation by operators, employers, and 
staff against residents and staff persons who make com- 
plaints to the Rest Homes Tribunal. 

It is important that the RHT be readily accessible to residents 
and to informal advocates. There must be an 800 telephone 
number so that complaints can be reported, anonymously if 
desired, from anywhere in the province. In all complaints of 
alleged rights violations, an advocate should be informed, as 
well. The 800 number should access all services provided by 
the RHT; as such it must be operated on a twenty-four-hour 
basis, to deal with emergencies. 

RECOMMENDATION 76: That there be an 800 telephone 
number, staffed continuously, for easy and rapid access to 
the Rest Homes Tribunal. 

We also recommend that a sign with the 800 number be post- 
ed in each rest home in a highly visible location. Printed 
information concerning the RHT and the use of the 800 num- 
ber should be prepared, provided to the public on request, 
and posted at or near the residents' entrance of all rest homes. 

RECOMMENDATION 77: That printed signs with the 800 
number be posted in every rest home and that literature 
concerning the Rest Homes Tribunal be readily available at 
■ all rest homes. 



188 Empowering and Protecting Vulnerable Adults 



The RHT should establish rules of procedure, including the 
size and composition of hearing panels, while attempting to 
create a non-intimidating, non-courtlike atmosphere. Deci- 
sions should be based on a preponderance of evidence as 
presented before the RHT. Decisions should be appealable to 
the Ontario Court (Divisional Court) only on matters of law. 

We note that the model for dispute resolution recommend- 
ed here is unlike that of the Ontario Human Rights Commis- 
sion: in effect, "ownership" of human rights complaints and 
determinations of priority and approach pass to the Human 
Rights Commission, from the individual complainant. 

The "private-law" model that we recommend places the 
onus on individual residents, with assistance, to pursue com- 
plaints; it would thereby be more empowering than alterna- 
tive models that de-emphasize the active involvement of the 
complainant in determining the outcome. 

Our proposal, however, is critically dependent on suffi- 
cient legal and social advocates to assist residents in the pur- 
suit of their complaints. There must be an adequate number 
of advocates; there must be free and ready access by vulnera- 
ble adults to their services; and the advocates must be com- 
petent in their tasks and responsive to the wishes of the resi- 
dents. The need for supports to vulnerable adults is a crucial, 
and recurring, theme in this Report, for without such assis- 
tance a resident-centred approach may amount to little in 
practice. 



PENALTI ES AND SANCTIONS 

The range of penalties available to the RHT should be wide, 
suited to the range of offences. The RHT should be able to 
issue a mild reprimand, order that the violation cease, order 
that operators or staff do what is necessary to comply with the 
bill of rights, and award damages to residents. 

Legislation should authorize the RHT (or the responsible 



A Residents' Bill of Rights 189 



minister on the recommendation of the RHT) to suspend or 
revoke the registration of the rest home and/or to order the 
takeover of the operation of the rest home for a limited peri- 
od, i'* The RHT could direct a specific ministry to assist with 
rehousing residents in an acceptable alternative location 
should premises be subject to closure. The sanctions should 
also include the temporary or permanent suspension of per- 
sons (owners, operators and/or stafO from the rest-home busi- 
ness in Ontario. 

The concept of graduated penalties is crucial: an incremen- 
tal approach permits appropriate penalties short of closure. 
(Closure would be applied only as a last resort because of the 
dehousing effect.) 

However, the response to certain violations, such as sexual 
assault, may demand a mandatory zero tolerance: the RHT 
may decide that a single criminal conviction for sexual assault 
would automatically permanently bar guilty parties from the 
industry. 



14 The provisions could be 
modelled on the Health 
Facilities Special Orders Act 
(HFSOA). That legislation 
allows the minister of Health 
to take strong action when a 
health facility falls below 
minimally acceptable stan- 
dards — where "the physical 
state of the [premises] or the 
manner of operation is caus- 
ing or is likely to cause harm 
to or an adverse effect on the 
health of any person or 
impairment of the safety of 
any person ..." [section 3, 
HFSOA] 



RECOMMENDATION 78: That the Rest Homes Tribunal 
have available a wide range of penalties and remedies 
appropriate to the severity of a violation. 



When certain violations — such as criminal offences causing 
bodily harm — are alleged, the RHT should be able to tem- 
porarily suspend the accused from involvement with the rest 
home pending the outcome of court proceedings. The find- 
ings of any court, civil or criminal, would be admissible 
before the RHT. 

In the most serious cases, those that involve serious health 
risks or potential serious physical injury, the RHT must have 
both the capacity and the obligation to act rapidly. Complaints 
for which retroactive redress would be insufficient demand a 
speedy response. In such circumstances, the RHT must have the 
authority to issue orders without notice; questions of ultimate 
responsibility and liability would be resolved subsequently. 



190 Empowering and Protecting Vulnerable Adults 



15 The facts of each particular 
case, and the recorded fre- 
quency of violations commit- 
ted in the rest home by indi- 
vidual staff members, should 
make clear whether the viola- 
tion was an aberration for 
which the home should not 
be blamed, or part of sys- 
temic management behaviour. 

16 In Part IV, we discuss the 
desirability of all information 
on penalties being provided 
on-line to hospital-discharge 
planners and placement co- 
ordination services (or service 
co-ordination agencies). 

17 The complaints register could 
be modelled on the register 
maintained under the New 
Home Warranty Program. In 
this program, home builders 
are ranked as average, above 
average, or below average in 
resolving complaints. It is 
important that the complaints 
register permit comparison 
between rest homes in a way 
meaningful to the consumer. 
For example, the number of 
complaints could be given as 
a proportion of resident days 
or the number of beds in the 
residence, and the percentage 
of successful mediations of 
complaints might be noted. 



RECOMMENDATION 79: That the Rest Homes Tribunal 
possess the capacity to order emergency responses and 
interventions, including the power to order the temporary 
takeover of a residence, when the Rest Homes Tribunal 
believes that the rest home is being operated in a manner 
that presents a serious risk to the health of residents or a 
serious risk of physical injury to residents. 

All penalties assigned by the RHT, whether to operators or to 
individual staff persons, along with a brief summary of the 
facts of the case, should be permanently recorded and readily 
available to the public. i5 it is crucial that a list of persons 
banned from involvement in the industry be readily accessible 
to operators, local registration offices, and the broader com- 
munity. ^^ 

RECOMMENDATION 80: That all decisions and penalties 
of the Rest Homes Tribunal be widely and easily available 
to the public at large. 

All complaints should be permanently recorded. The history 
of complaints against a particular rest home, and the resolu- 
tion of each complaint, should be readily available to any 
member of the public via computer bulletin boards, infor- 
mation systems, and at public libraries. Obviously, the indi- 
vidual residents' privacy should be protected in such 
records. 

The Commission therefore recommends that a complaints 
register be established for the rest-home industry.!^ Some 
homes will develop a good record in resolving residents' com- 
plaints, while others will be seen to be less successful. When 
complaints are resolved through mediation, this should be 
noted in the complaints register. The complaints register 
should be part of a computerized data base, maintained by 
the RHT, that would also include a record of all adjudicatory 
decisions made by the RHT. 



A Residents' Bill of Rights 191 



RECOMMENDATION 81: That a complaints register that is 
readily accessible to the public be maintained by the Rest 
Homes Tribunal. 



ADMIN ISTRATI VE 
AND DESIGN 



RESPONSIBILITY 



The choice of which government ministry should be responsi- 
ble for the RHT is an important one.i^ The RHT should oper- 
ate independently of the major service-providing ministries, 
particularly the Ministry of Health (MoH) and the Ministry of 
Community and Social Services (MCSS). It should also be 
independent of the Ministry of Housing and the Ministry of 
the Attorney General. Because of its developing expertise 
through the proposed Advocacy Act, 1991, the Ministry of Cit- 
izenship seems to be a logical home for the RHT 



18 The Macaulay Report (Direc- 
tions: A Review of Ontario's 
Regulatory Agencies, 1989) 
discussed, among other 
issues, the appropriate rela- 
tion of independent agencies 
to government. It contains 
much information that will be 
useful in the development of 
the RHT's structure. 

19 The Supreme Court of Cana- 
da held in 1981 that Ontario's 
Residential Tenancies Act was 
invalid because it violated 
section 96 by empowering 
the tribunal under that legis- 
lation to evict tenants and to 
order landlords and tenants 
to comply with the rent-con- 
trol legislation. See Reference 
re Residential Tenancies Act 
[1981] 1 S.C.R. 714. 



RECOMMENDATION 82: That the Ministry of Citizenship 
be vested with responsibility for the administration and 
funding of the Rest Homes Tribunal. 



We must ensure that the legislation establishing the RHT does 
not fall foul of section % of the Constitution Acts, 1967-1982 
by conferring on it jurisdiction similar or analogous to that tra- 
ditionally exercised by a judge of a superior court. The poten- 
tial infringement arises because the RHT would consider some 
complaints in the area of landlord-tenant law. The remedies of 
landlord-tenant law, such as eviction orders, are historically 
within the exclusive jurisdiction of federally appointed 
judges. '9 

However, an administrative tribunal's powers may be 
upheld as part of a wider regulatory scheme, even though, if 
viewed in isolation, they are judicial in nature and have been 
exercised historically by judges of superior courts. In the con- 
text of the proposals contained in this Report, the process and 



192 Empowering and Protecting Vulnerable Adults 



powers of the RHT are distinguishable in a number of ways 
from those of section 96 courts. 

For example, mediation is an important aspect of the 
RHT's process; it would only be when mediation is refused or 
fails that the complaint would go to adjudication. In addition, 
the residents' bill of rights would include many items (such as 
the residents' right to be treated with basic respect) that are 
outside landlord-tenant law. The remedial powers of the RHT 
would be distinct from court powers in landlord-tenant dis- 
putes: only the RHT could, for example, suspend operators 
from the business, or forbid the employment of a named indi- 
vidual in any rest home. 

It should be emphasized, however, that the Commission is 
not recommending that the RHT be given the power to order 
the traditional remedies of landlord-tenant law. If landlords 
want an eviction or residents want the termination of a lease 
or abatement of rent, for example, the proper forum is the 
landlord-tenant court. In other words, the RHT's jurisdiction in 
landlord-tenant issues should be seen in the wider context of 
protecting the rights of rest-home residents under the bill of 
rights. 

This distinction raises the second concern, that of the rela- 
tion of the RHT and other avenues of recourse, for certain 
conduct may contravene both the proposed bill of rights and 
the LTA or the Human Rights Code, each of which has a dis- 
crete enforcement mechanism and remedies. 

On the basis of our preliminary consideration, we prefer 
that the RHT's jurisdiction extend to all complaints brought to 
it that allege breaches of the residents' bill of rights. We have 
reached this conclusion for two principal reasons. First, the 
RHT would be designed — in its expertise, process and pow- 
ers, including remedies not currently available — to respond to 
the needs of a specific and particularly vulnerable population. 
The Commission intends that members of the RHT possess 
specialized knowledge of vulnerable adults in rest homes and 
of the rest-home environment. (The existing enforcement 



A Residents' Bill of Rights 193 



machinery — the courts, for resolving tenants' rights disputes, 
and the Ontario Human Rights Commission, for resolving 
complaints of discrimination — is more general, and more 
restricted in remedial powers than the RHT.) 

In addition, expeditious disposition would be critical to the 
success of the residents' bill of rights, and we intend that 
complaints brought before the RHT typically be resolved 
speedily. Finally, it is crucial that complainants, assisted by 
their advocates, take charge of their own cases, which does 
not happen in complaints brought under the Human Rights 
Code. 

Moreover, if separate tribimals have exclusive jurisdiction 
over closely related issues that arise from disputes in a single 
setting, the likely result is needlessly frustrating and costly 
jurisdictional wrangles that could undermine the efficiency of 
the regulatory scheme. 20 An alleged breach of the residents' 
bill of rights might overlap in part with other statutory regimes 
(particularly the Ontario Human Rights Commission); some 
remedies sought before the RHT might overlap with those 
available under those other statutory schemes. In such cases, 
the complainant should decide to pursue a remedy through 
the RHT or elsewhere, on the understanding that once an 
issue has been decided by an appropriate body, the same 
remedy may not be sought in another forum. 



20 It would be undesirable to 
require complainants to 
divide their complaints into 
severable parts, and to seek 
relief from more than one tri- 
bunal, unless residents are 
seeking remedies of different 
sorts. For example, some vio- 
lations of residents' privacy 
could be pursued in two fora, 
but for different remedies. In 
some cases, a charge could 
be laid against the landlord 
under the LTA; the matter 
would then be pursued as a 
quasi-criminal matter in court, 
perhaps resulting in a fine 
upon conviction. As well, the 
matter might be pursued 
before the RHT with the aim 
of obtaining an order that the 
specific conduct cease. 



Advocacy 



Social advocates are vital for the empowerment of residents of 
rest homes. Bill 74, the Advocacy Act, 1991, currently before 
the legislature, proposes a formal program of advocacy ser- 
vices for all vulnerable persons. The program would be oper- 
ated by an independent Advocacy Commission funded by the 
provincial government. We wholeheartedly endorse its role 
and mission. 



194 Empowering and Protecting Vulnerable Adults 



We have described the main features of the proposed 
social-advocacy program; however, we wish to comment on 
the advocacy initiative itself. 

First, the number of advocates has not yet been finalized, 
but it seems clear that demand for services will exceed the 
capacity of the provincial government to respond. A working 
estimate of 600,000 vulnerable adults in Ontario has been 
used for planning purposes for the Advocacy Act, 1991. Our 
own research with census data has suggested that some 
47,500 vulnerable adults live in unregulated accommodation. 
Although all vulnerable adults will not need formal advocacy 
services, the potential demand is considerable. 

Obviously, the Advocacy Commission will need to estab- 
lish priorities for its services. It is our view that adults are par- 
ticularly vulnerable when residing in settings where care is 
provided by operators and staff. 

RECOMMENDATION 83: That the Advocacy Commis- 
sion consider identifying settings in which the receipt of 
advocacy services will be deemed a priority. The rest 
home as defined by this Commission should be one 
such setting. 

The successful implementation of the residents' bill of rights 
and the RHT are particularly dependent on advocacy — legal 
and social. As the Advocacy Commission's mandate is primari- 
ly social (i.e., non-legal), advocacy staff will make referrals to 
legal advocates, including legal clinics operated under the 
Ontario Legal Aid Plan. 

Our approach to resident empowerment assumes that suf- 
ficient advocates — social and legal — will be accessible to peo- 
ple living in rest homes. Without their involvement, the rights 
of residents will be merely theoretical. Many residents of rest 
homes, particularly those on limited incomes, have few family 
or other supports. They will be dependent on advocacy 
should they need assistance. 



A Residents' Bill of Rights 195 



If advocacy services are not funded and developed in an 
effective manner, it may be necessary to resort to comprehen- 
sive governmental regulation of rest homes, notwithstanding 
our many reservations about such an approach. A system that 
relies on government regulators and inspectors would be 
superior to a system based on advocates in which too few 
advocates are available. Rights are not a reality if the means to 
enforce those rights do not exist. 

There is also a second overriding need, which those work- 
ing on the advocacy program are sensitive to: we must ensure 
that advocates do not become one more set of intrusive social 
workers, making decisions on behalf of residents. There is a 
fine line between assisting individuals in identifying and artic- 
ulating their wishes and unilaterally deciding what is best for 
them. Disempowerment can be brought about by benevolent 
intentions. 

RECOMMENDATION 84: That the Advocacy Commission 
ensure operational procedures are in place so that empow- 
erment of the individual remains the central goal of the pro- 
gram. 



INFORMAL ADVOCACY 

Informal advocates can play a key role in empowering and 
protecting vulnerable adults in rest homes. Informal advocates 
may be friendly visitors — family, friends or relatives, local 
school, church or community groups — or tradespeople work- 
ing on the premises. 

Operators who run quality operations should welcome the 
regular involvement of the wider community. Volunteers can 
lessen the isolation that afflicts so many residents. Friendly 
visiting and programming of events — such as day trips in and 
around the community or shopping at the local mall — can 



196 Empowering and Protecting Vulnerable Adults 



restore a connection to the outside world that so many resi- 
dents lose through extended hospitalization or abandonment 
by friends and family. The comings and goings of visitors can 
only accelerate the process of integrating residents into the 
world outside the rest home. 

As well, pressure on operators to provide such program- 
ming and pressure on government to fund operators to do so 
should be significantly reduced. 

These informal advocates could monitor and report possi- 
ble abuses or violations of standards or rights to the RHT or 
other appropriate public authority (such as fire inspectors). 
Physical abuse or severe neglect would be readily noted by 
anyone entering the premises. Indeed, the mere presence of 
outside parties — whoever they are — may serve as a check 
against unacceptable behaviours. Therefore, one goal of this 
Inquiry is to encourage as many individuals and agencies to 
be on rest-home premises as frequently as is feasible. 

Many community groups would be amenable to such 
"friendly visiting" if their activities were encouraged. We rec- 
ommend that church and other community groups be encour- 
aged to undertake regular visits to residents of rest homes and 
to offer programming for interested residents. We also recom- 
mend that MCSS (or the Ministry Citizenship) make available a 
small amount of money to such groups to defray direct out- 
lays in connection with such visiting. 

RECOMMENDATION 85: That church, community, and 
other voluntary groups be encouraged to visit rest homes 
regularly, thereby serving as informal advocates. That limit- 
ed funding be available to such groups to defray direct 
costs in connection with such visiting. 

At present, community groups may enter rest homes only with 
the permission of operators; with coverage under the law of land- 
lord and tenant, the right of entry will be effectively ensured, pro- 
vided that a resident extends an invitation. In addition, we have 



A Residents' Bill of Rights 197 



reinforced this right of access under the residents' bill of rights. 

We also commend the Good Neighbours initiative of the 
Office for Seniors' Issues. Currently, thirty-four regions, cities, 
towns, and villages in Ontario are involved with the initiative, 
which has as its slogan. Take Time to Reach Out. The inten- 
tion is to promote community awareness of the value of peo- 
ple helping one another, and the development of informal 
neighbourhood support networks for frail, isolated, and vul- 
nerable persons who live in the community. As rest homes 
are to be considered part of the community rather than insti- 
tutional settings, the Good Neighbours initiative should be 
encouraged to promote awareness of the needs of rest-home 
residents. 

RECOMMENDATION 86: That the Good Neighbours ini- 
tiative promote awareness of the needs of rest-home resi- 
dents. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^ 

10 

Safety Standards 



Throughout this Report we have stressed the twin 
goals of empowerment and offering protection to 
vulnerable adults in Ontario. Minimum standards 
with respect to health and safety are in place for 
the general population and the housing in which 
they live. However, the application of these stan- 
dards to rest homes and their residents has been uneven, and 
in some cases non-existent. At times the omissions result from 
the lack of formal definition of a rest home, and the absence 
of an obligation for these homes to make themselves known 
to municipal authorities. The inconsistent application of mini- 
mum standards often results from differing concepts on the 
part of local regulatory authorities as to what a rest home is or 
is not, and what population it serves. 

In this section, we consider the three major areas of public 
regulatory concern for the population at large: public-health 
protection; fire safety; and safety of the physical environment 
(which includes the Building Code and municipal occupancy 
by-laws). We examine these areas in the rest-home context 
and make recommendations that should result in universal 
effective coverage and consistency from site to site. Because 
the rest home is a setting in which care is delivered, we also 
explore the rationale for minimum staff ratios. First, however, 
we shall make recommendations for minimum standards and 
the mandatory registration of all rest homes. 



198 



Minimum Safety Standards 

We believe there must be absolute minimum standards of 
housing quality in rest homes, and operators should not be 
permitted to offer accommodation that falls below this line. 

RECOMMENDATION 87: That the principle of a minimum 
standard for housing quality for rest homes based on pro- 
tecting the lives and safety of residents be adopted, and 
that no operator be permitted to offer accommodation that 
fails to meet this minimum. 

We draw the line low, given repeated and legitimate fears that 
all standards reduce the supply of housing for the most vul- 
nerable persons. Indeed, we are recommending standards that 
protect only lives and personal safety. Housing below these 
minima is unhealthy, dangerous, or unsafe. Therefore, these 
standards must be enforced, even if the result is the dehous- 
ing of vulnerable persons. Surely one of the lessons to emerge 
from the tragic Rupert Hotel fire in Toronto is that in some 
cases dehousing is better than the alternative — which, in that 
case, was death. 

We recommend that every assistance and encouragement, 
including financial aid, be given to operators to meet the min- 
ima. We particularly endorse the use of low-rise rehabilitation 
funding from the Ministry of Housing. ^ 

There will be cases in which operators are unwilling or 
unable to meet minimum standards, however low they are 
set, and some loss of housing will inevitably occur. Although 
we do not desire loss of housing, in such cases the result is 
proper and necessary. Some housing is so dangerous that it is 
truly unfit for habitation. 

Finding acceptable alternative housing for those evicted 
owing to unsafe or dangerous conditions should be a priority 
for the local authorities, even when this entails jumping the 
housing queue; if residents are not guaranteed rehousing they 



Safety Standards 199 



1 See note 41, below. 



200 Empowering and Protecting Vulnerable Adults 



2 We recall that residents at 
Cedar Glen were individually 
invited to leave and were 
guaranteed rehousing, but 
many feared to act. Eventual- 
ly, the residents were simply 
removed and the operator 
closed the premises. 

3 We assume that advocates 
and others will be vigilant in 
assisting residents to bring 
unsafe and unhealthy situa- 
tions to the attention of the 
appropriate regulatory bodies. 



will resist leaving unsafe premises and, indeed, may return ille- 
gally, raising the prospect of forcible removal. - 

Residents cannot be expected to assess whether housing is 
unsafe or dangerous: we cannot assume they have the techni- 
cal expertise to distinguish the unsafe from the merely unaes- 
thetic; as well, many are reluctant to speak out because of 
their personal vulnerability: they may fear reprisals by opera- 
tors; they may, understandably, feel any housing is better than 
no housing; or they may favourably compare their current res- 
idence to life in a psychiatric hospital. 

Enforcement and corrective action must be rapid, when 
minimum standards are not met. Work orders in areas that 
affect personal health or safety cannot be permitted to accu- 
mulate over extended periods of time. We have stressed the 
importance of a timely response and the development of 
mechanisms to ensure this outcome. ^ 



Mandatory Registration 



In order that minimum standards be enforced, all rest homes 
must be known to regulatory authorities, such as the health, 
fire, and building inspectors. To this end, we are recommend- 
ing a system of mandatory registration for all rest homes as 
defined by this Commission. 

At the outset of this Report, we recommended a legal defi- 
nition of the rest home. These two simple steps — defining and 
registering — will end the current situation in which "hidden" 
or "invisible" rest homes, particularly for low-income people 
and often in mral areas, operate unknown to or ignored by 
various public bodies. 

A legal definition combined with mandatory registration 
will enable regular and systematic visitation and inspection by 
local regulatory bodies. For example, public-health inspectors 
and nurses often do not visit rest homes regularly, in part 
because of the ambiguity about what a rest home is. Once 



Safety Standards 201 



definition and registration are in place, mandatory and regular 
visits and inspections become an explicit responsibility of 
public-health units. 

It is our intention that registration be simple and straight- 
forward, primarily for identification. (This registration would 
be done by a municipal clerk or similar municipal authority.^ 
Registration should be given to rest-home operators who 
apply and meet the conditions specified below. Discretionary 
judgments should be limited to whether a particular premises 
fits the legal definition of a "rest home. "5 

Registration should not be transferable or assignable; and 
no property rights should be conveyed. (This approach stands 
in contrast to the system of granting nursing-home licences, 
which become valuable assets that can be bought and sold.) 



4 In the parts of Ontario where 
there is no municipal govern- 
ment, the province will have 
to assume direct responsibili- 
ty for registration. 

5 The only other discretionary 
judgment will be that of the 
Rest Homes Tribunal in inter- 
preting applicants' criminal 
records. See below on the 
CPIC check. Currently in 
some communities, municipal 
licensing committees make 
subjective judgments about 
the "suitability" of operators 
or premises: it is this type of 
approach we wish to avoid. 



RECOMMENDATION 88: That a system of mandatory reg- 
istration for all rest homes be introduced as soon as possi- 
ble. That all rest homes be required to register with the 
municipality in which they are located. That municipalities 
be permitted to charge a modest fee for registration. 

Registration of rest homes should be contingent on filing doc- 
umentation concerning both the safety of the premises and 
the fitness of owners and operators. Registration should not 
be contingent on meeting minimum standards. Compliance 
with standards should be noted at the time of registration, but 
it is the responsibility of the relevant regulatory authorities to 
enforce standards. 



RECOMMENDATION 89: That any owner or operator 
seeking registration for a rest home shall be required to 
produce the following documents to the municipality in 
which the dwelling is located: 

1. a certificate from the fire inspector attesting to com- 
- pliance with the relevant sections of the Fire Code, or 

noting all outstanding work orders; 



202 Empowering and Protecting Vulnerable Adults 



6 It is not intended that this 
process will be time-consum- 
ing or complex. All necessary 
information can be forward- 
ed on-line, as it is recorded 
for the municipality's use. 

7 We note, for example, that 
the operator of Crozier 
Manor in Dorset who was 
convicted under the Criminal 
Code (discussed in chapter 8) 
was simultaneously operating 
a rest home in Kent County. 
At present, the local authori- 
ties in Kent would not have 
this information formally 
drawn to their attention. 



2. a certificate from the building inspector attesting to 
compliance with the relevant sections of the Building 
Code and applicable local property standards by-laws, 
or noting all outstanding work orders; 

3. a certificate from the local board of health attesting to 
compliance with the applicable sections of the Health 
Protection and Promotion Act, or noting all outstanding 
orders; 

4. a certificate from the local police containing the 
results of a Canadian Police Information Centre check 
on the operators; and 

5. a certificate from the Rest Homes Tribunal that affirms 
the operators are not at present banned from the indus- 
try and that the Rest Homes Tribunal holds that any 
convictions indicated by the Canadian Police Informa- 
tion Centre check do not constitute a bar to involvement 
in the industry. 



When these conditions were satisfied, the clerk would issue a 
certificate of registration, to be posted prominently within the 
residence. 

All registration information concerning the premises and 
the owners/operators should be forwarded by the municipality 
to the Rest Homes Tribunal (RHT), which should maintain a 
central data base.^ The central data base is necessary so that 
multiple ownerships can be readily identified: if individuals 
are barred from the industry in one community, information 
on their involvement elsewhere in the province can be 
retrieved immediately and the notice of their being barred sent 
to affected municipalities and advocacy units. ^ 



THE CPIC CHECK 



The Canadian Police Information Centre (CPIC) is a computer- 
ized data base maintained by the RCMP on behalf of police 



Safety Standards 203 



forces across Canada, who contribute the records. It assem- 
bles criminal records of individuals but does not judge the 
nature or severity of offences. Those using the data system 
must interpret for themselves the meaning and implications of 
specific convictions. 

Access to the system is strictly controlled. Besides law- 
enforcement authorities, certain agencies whose roles are 
complementary to law enforcement may be provided. CPIC 
information. 8 

Individuals willing to undergo a CPIC check must consent 
in writing to the release of information and must have their 
fingerprints taken. The fingerprint form and the request are 
forwarded to the Ontario Provincial Police in Toronto, who 
access the RCMP files and release available information 
regarding criminal convictions to the agency specified in the 
consent form. 

The Commission recommends that everyone seeking regis- 
tration as an owner/operator of a rest home in Ontario be 
required to undergo a CPIC check. We make this recommen- 
dation in response to the very few cases in which, for exam- 
ple, individuals convicted of assaulting residents immediately 
resume operation of rest homes. 

The number of cases in which the CPIC check would pro- 
duce a record of convictions will undoubtedly be small, and 
we regret the imposition on the vast majority of potential reg- 
istrants. However, the public interest does require this limited 
information about the criminal histories of all applicants for 
registration. The CPIC check is a clear statement that opera- 
tion of a rest home — or, indeed, any other business in which 
care is provided to vulnerable persons — is a privilege rather 
than a right. 

A report indicating an absence of criminal convictions 
would be submitted by the OPP to the municipal clerk as part 
of the registration process. If the CPIC check uncovered previ- 
ous criminal convictions, the RHT would assess the implica- 
tions of the individual case. Certain offences may not bar reg- 



Current Ontario users of the 
CPIC system (in the category 
that could include rest 
homes) include the Ontario 
Racing Commission, the 
Liquor Licence Board of 
Ontario and the Ministry of 
Transportation, with respect 
to licensing school-bus 
drivers. For example, the 
Ministry of Transportation 
reviews the CPIC information 
on each case. The ministry is 
particularly looking for con- 
victions under the Narcotic 
Control Act and for sexual 
offences. If the convictions 
are minor or time has 
elapsed, a licence would be 
granted. Though the ministry 
cannot ban individuals for 
life, they can continue to 
refuse to give licences. There 
is an appeal process, initially 
within the ministry and sub- 
sequently to the Human 
Rights Commission, the 
ombudsman, or the courts. 



204 Empowering and Protecting Vulnerable Adults 



istration; others, particularly if they occurred in the recent 
past, might result in a decision to refuse registration at that 
time. The RHT may subsequently permit registration when the 
applicant demonstrates the character suitable to own/operate 
a rest home. 

The RHT may also wish to decide that certain types of crimi- 
nal convictions would lead to a permanent bar from the indus- 
try. We are reluctant to recommend absolute and permanent 
penalties, but it would be up to the RHT to establish its own cri- 
teria. Over time, the cases that accumulate would serve as 
precedents for members of the RHT and potential registrants. 

RECOMMENDATION 90: That every person seeking regis- 
tration as owner/operator of a rest home be required to 
undergo a Canadian Police Information Centre check prior 
to registration. 

RECOMMENDATION 91: That if an applicant has previous 
criminal convictions, the Rest Homes Tribunal determine 
the suitability of the applicant to own or operate a rest 
home and whether the applicant shall be permitted to reg- 
ister the rest home. 



FULL DISCLOSURE 

It will be essential to "pierce the corporate veil" so that the 
actual owners and operators of a rest home be known. Limit- 
ed corporations and partnerships should be required to pro- 
vide full information — names, addresses, and phone num- 
bers — on all shareholders or partners holding m.ore than a 
specified minority interest. Such information must accompany 
each application for registration and be posted prominently in 
each rest home. 



Safety Standards 205 



RECOMMENDATION 92: That full information on the names, 
addresses, and phone numbers of all owners and operators 
holding more than a specified minority interest accompany an 
application for registration of a rest home and subsequently be 
posted prominently in the home. 

Any change of ownership of a rest home should entail new 
registration, complete with all required documentation, irre- 
spective of registration by the previous owner. 

After the initial registration of a rest home, an annual 
renewal should be required. This would simply entail the pay- 
ment of a modest fee, and would serve the sole purpose of 
informing various authorities that the premises are still in 
operation as a rest home. 



9 Each regulatory authority 
(fire, building, public health) 
possesses a series of sanc- 
tions, including the right to 
close premises. 

10 Elsewhere we recommend 
measures to ensure that pow- 
ers be exercised appropriate- 
ly and that the safety of resi- 
dents be protected. Violations 
of the basic rights of residents 
would be protected in the bill 
of rights. Remedies for viola- 
tions of those rights, includ- 
ing closure of the rest home, 
could be pursued through the 
RHT. 



RECOMMENDATION 93: That registration be obtained 
upon any change of ownership and renewed annually. 

It is not our intention that registration be refused or revoked, 
as nursing-home licences can be. Thus, there would be none 
of the associated administrative or court proceedings, or threat 
of proceedings, to terminate operators' right to do business. 

No municipality or licensing body could remove the right to 
operate a rest home because of a failure to comply with standards 
contained in other regulatory legislation. Rather, all violations and 
infractions should be cited and remedied under the relevant 
health-, fire-, building- or property-standards legislation.^ 

It is the view of the Commission that municipal licensing is 
superfluous where there is effective enforcement of the avail- 
able penalties for violations of the relevant regulatory legisla- 
tion, ^o To ensure that basic standards are met, the relevant 
regulatory officials would be encouraged to meet on a regular 
basis, and to share their information. 



RECOMMENDATION 94: That all municipal inspection 
and enforcement bodies be encouraged to keep all infor- 



206 Empowering and Protecting Vulnerable Adults 



mation about rest homes in such a manner that it can be 
easily shared. That these bodies share the information on a 
regular basis. 

No annual re-inspections should be required, as it is our 
intention that inspections occur regularly and unannounced as 
part of the ongoing monitoring of rest-home premises. 

We do not envisage a need for a lengthy implementation 
period for this system. 

RECOMMENDATION 95: That all rest homes be given a 
six-month period to register after the enactment of the 
legal requirement to do so. 

After six months, unregistered rest homes should be subject to 
closure, based on a complaint that any person could lodge 
with the RHT. The RHT may then hold a hearing; if an unreg- 
istered rest home were in operation, the RHT might order clo- 
sure of the premises or a temporary trusteeship pending 
removal of the residents, to be followed by closure. RHT 
orders should have the effect of a court order to be enforced 
by the sheriff. 

In any procedure to close an unregistered rest home, the 
interests of residents must be protected; any costs associated 
with their move to alternative accommodation should be fully 
chargeable against the operators. The costs of the closure 
itself should be recoverable from the operators. 

RECOMMENDATION 96: That there be a range of penal- 
ties for a rest home that operates without registration, 
including an order by the Rest Homes Tribunal to close the 
premises with the cost of relocation of the residents 
chargeable to the operators. 



Safety Standards 207 



Staffing Issues 

Minimum standards apply not only to the physical conditions 
of the home but for the staffing of the rest home, as well. 
Inadequate numbers of staff, irrespective of their qualifica- 
tions, is one of the more troubling situations reported to the 
Commission. We have been told of residences housing large 
numbers of frail and bedridden seniors, where one or two 
teenagers are left in charge at night, on weekends, or on holi- 
days, with no one else available or on call. 



1 1 If a staffing ratio were 
premised upon a care func- 
tion being served, then pre- 
sumably the richer the ratio, 
the better the quality of care. 
In such cases, an individual 
assessment of each of the 
premises and the functioning 
level of its residents would be 
almost essential. 



STAFF RATIOS 

What is an appropriate staff-to-resident ratio depends on the 
purpose for which staff are present. We do not recommend a 
minimum staffing level based on the care needs of residents, 
even if this were possible to determine on a universal basis. 
To do so would create a major cost burden for operators and 
would endorse their role as providers of care rather than as 
landlords. 

In the Commission's view, the purpose of a mandatory 
minimum staff ratio is to prevent serious harm to residents, in 
cases such as fire, serious personal crisis, sudden illness, or 
accident. The ratio should be sufficient to respond to any cri- 
sis that has the potential to cause serious harm to one or more 
residents. The ratio should be determined on the assumption 
that the staff would not be expected to treat an illness, but 
they would be expected to know the appropriate professional 
to contact, and to make the contact quickly, i^ 



RECOMMENDATION 97: That staff in rest homes be 
viewed as serving a safety rather than a care-giving func- 
tion. 



208 Empowering and Protecting Vulnerable Adults 



12 Many day staff are engaged 

in tasks such as food prepara- 
tion or laundry, even though 
the regulatory intent may be 
for them to deliver care. 

13 One community proposes a 
staff ratio of one-to-five and 
another of one-to-seven, 
averaged over twenty-four 
hours. Assuming payment at 
minimum wage and without 
benefits, the cost of one staff 
person per twenty-four-hour 
day is approximately $150. 
Under the hostel provisions 
of GWA, total daily income to 
operators for five residents is 
about $160. Virtually all 
income from five GWA resi- 
dents would go into the 
salary of the one mandatory 
staff person, with little left 
over for food, housing, or 
compensation to operators. 

14 In Hamilton, for example, a 
current proposal would 
require one night-staff person 
for up to twenty-five resi- 
dents. For twenty-six to forty 
residents, the night-shift 
requirement would rise to 
two staff. Above forty, one 
staff person must be added 
for each fifteen residents. 



The minimum staff according to the ratio must be on the 
premises at all hours, for if the purpose of staff is to respond 
to crises, this function must be guaranteed to residents at all 
times. 

Once a staff ratio is specified, its enforcement would be 
quite straightforward: a simple head count — of staff and resi- 
dents — and a check of records could determine compliance. 
Non-compliance could be reported to the RHT. 

Calculating a proper staff ratio for safety purposes would 
involve tradeoffs between ensuring safety and cost. Individu- 
alized assessment of rest-home residents is not feasible, given 
rapid changes in population mix and the technical and admin- 
istrative complexity of assessment. Instead, we recommend 
that a single consistent staff-to-resident ratio be determined 
for all rest homes. 

RECOMMENDATION 98: That a minimum staff-to-resident 
ratio be mandatory in all rest homes at all hours. That only 
adults over the age of sixteen count in meeting this ratio. 

Some mandatory minimum ratios set out in municipal by-laws 
permit averaging of staff ratios over a twenty-four-hour peri- 
od: more persons are present during the day than at night. 12 
Because our minimum staff ratio reflects only a safety func- 
tion, this minimum must be operative at all times, on all shifts. 
Averaging over shifts should not be permitted. 

Some of the ratios required or proposed in municipal by- 
laws strike us as costly. Given the limited incomes of some 
residents, it appears that only by using staff for "household" 
purposes can these ratios be met.i^ From the Commission's 
perspective, there is little point in requiring high staff ratios, 
only to have the staff doing laundry; operators would require 
laundry services, in any event. 

The ratios for evening or night-shift duty in some by-laws 
seem to reflect safety needs and to minimize care-giving 
expectations.!' As such, these ratios are probably in the desir- 



Safety Standards 209 



able range for a provincial minimum staffing ratio. 

The administrative responsibility for staff ratios should be 
assigned to municipal fire inspectors. i5 Operators would have 
to maintain a staff log book to document compliance with the 
ratio, and it would be the role of the fire inspector to ensure 
compliance. 

RECOMMENDATION 99: That administrative responsibili- 
ty to ensure staff ratios in rest homes are met be given to 
municipal fire inspectors. 



15 This assumes the safety func- 
tion would primarily focus 
on evacuation in case of fire. 
There are also other safety 
concerns, such as certain 
behaviours on the part of res- 
idents. Thus, administrative 
responsibility might be 
assigned to public-health 
inspectors instead. In either 
case, the responsibilities are 
modest. 



ASSISTING WITH MEDICATIONS 



Of the concerns that arose again and again, those surrounding 
medications in rest homes were among the most pressing. 
Current practice varies widely. In some settings we visited, 
particularly where a nurse is present, the system for the distri- 
bution of medications is on the hospital model, complete with 
log books, records, etc. Other homes we visited frankly scare 
us. Often, case material refers to teenagers or adults unable to 
read labels dispensing to residents without knowing or paying 
attention to who is getting what. There have also been many 
references to medication cabinets not kept locked or secured, 
and to systematic improper dispensing being used as a 
behavioural tool by operators. 

The more rigorous the standard required of operators, the 
greater the need for them to maintain complete records and 
for inspectors to apply a formal enforcement mechanism with 
penalties. Such regulation, of the type that occurs in nursing 
homes, implies an assumption of substantial responsibility on 
the part of operators and staff. However, the greater the 
responsibility and potential liability, the less likely operators 
will be to become involved. At the very least, operators have 
a right to compensation commensurate with the responsibility 
and liability they are being asked to assume. Without com- 



210 Empowering and Protecting Vulnerable Adults 



16 This does not mean that the 
staff must be able to commu- 
nicate in the residents' own 
language, but they must be 
able to understand if resi- 
dents are requesting or refus- 
ing the medication. 

17 In Part IV of this Report, we 
suggest how competence 
may be ascertained. 

18 We prefer to see this respon- 
sibility lying with the pre- 
scribing physicians and phar- 
macists. We do not recom- 
mend mandatory staffing of 
rest homes by nurses or other 
medical personnel. In small 
rest homes, a requirement for 
an RN or an RNA, even if 
only at specified hours, 
would be prohibitively 
expensive. In large homes 
where costs can be spread 
over substantial numbers of 
residents, an operator may 
desire, and deem it economi- 
cally feasible, to have quali- 
fied nursing staff on-site at 
certain hours at least. 



pensation, operators will refuse to be involved with medica- 
tions; residents will be expected to self-medicate, and those 
who need assistance will not receive it. 

This is not an acceptable approach or result. Therefore, 
staff and operators' responsibilities with respect to medica- 
tions must be clearly defined and restricted. 

Operators may choose to assist with medications. If they 
do so, they must have the consent of the residents (or substi- 
tute decision-makers) and their responsibilities must be nar- 
row, but precise. Staff must be aware of and respect the resi- 
dents' legal right to refuse medications unless there is a court 
order to the contrary. 

All staff persons involved in any aspect of medications 
must be "competent" in this service. The Commission does 
not wish to impose a high standard that would professionalize 
or medicalize this assistance. 

RECOMMENDATION 100: That any staff person who is 
involved in any aspect of assisting residents to take medi- 
cations must be "competent" to do so. In assisting a resi- 
dent in taking medications, "competence" means, at a min- 
imum, that assistance can be provided only by someone 
who is: 

1. sixteen years of age or older; 

2. able to read and follow the directions on the bottle 
or package; and 

3. able to identify, recognize, and communicate 16 with 
the resident. 



A requirement to meet this standard of competence has been 
incorporated into the residents' bill of rights. i^ 

Ensuring that medications are not counter-indicated or 
making other quasi-medical judgements is not a responsibility 
we can realistically assign to rest-home staff without tremen- 
dous cost and liability implications for operators. i« 

Rest-home staff must merely be capable of ensuring that 



Safety Standards 211 



the designated recipient receives the prescribed medications 
in the prescribed dosage at the prescribed time. 

RECOMMENDATION 101: That any operator providing 
assistance with medications be responsible to ensure that the 
medications, as prescribed, are delivered to the correct per- 
son in the prescribed dosage at the prescribed frequency. 

The staff and operators' responsibility is limited to following 
the instructions provided by the pharmacist or prescribing 
doctor, and does not entail any clinical or medical judge- 
ments. 

A requirement that operators offer a secure locked area for 
the storage of medications has been incorporated into the res- 
idents' bill of rights. In general, residents should not be 
required to keep their medications in this locked area, 
because they have a right to control their own medications. In 
some cases, however, to ensure group safety — for example, to 
lessen the risk of theft — a common locked area for medication 
may be necessary. 

RECOMMENDATION 102: That operators be required to 
offer a secure locked area for the storage of medications. 



Health Protection 

The protection and promotion of health in rest homes has 
proven to be a complex issue, for protecting health and 
assigning a proper role to public-health authorities presuppos- 
es a definition of what constitutes a rest home, and who, if 
anyone, has responsibility for its residents. 

Were rest homes to be viewed as first-stage nursing homes, 
for example, it would be appropriate that they assume a 
major health-care role. Many submissions and presentations 



212 Empowering and Protecting Vulnerable Adults 



19 A majority of the members of 
the board are appointed by 
the municipality. The senior 
staff person for each board is 
the local "medical officer of 
health," who must be a medi- 
cal doctor. 



have argued that only RNs should be permitted to assist with 
medications and/or that every rest home should be required 
to have RNs or RNAs on staff. The cost implications are rarely 
discussed, as the case is usually made on the grounds of 
empirical need: large numbers of frail elderly persons receive 
inadequate or minimal health care. 

We have set out our view that the rest home ought not be 
viewed as a first-stage nursing home, and that care be increas- 
ingly delivered on an in-home portable basis by community- 
based agencies. We also bring this general approach to the 
discussion of the protection of the health of residents in rest 
homes. 

There is a limited mandate in existing provincial legislation 
relating to the role of public-health authorities in protecting 
and promoting the health of residents in rest homes. The 
Health Protection and Promotion Act (HPPA) is administered 
by the Ministry of Health; services are delivered through local 
boards of health. i9 Within each health unit are public-health 
inspectors and public-health nurses, with different profession- 
al training and roles. 

Sections 5 and 10 of the HPPA are particularly relevant to 
the work of the Commission. 



SECTION 5 



The mandatory programs and services for local boards of 
health are set out in section 5. These include "family health," 
"home-care services," "nutrition," and "public-health educa- 
tion." Standards for these activities are set out in Mandatory 
Health Programs and Services Guidelines (Ministry of Health, 
April 1989). 

The Guidelines are concerned primarily with health pro- 
motion and education rather than with the direct provision of 
health services. For example, the goal of "healthy elderly" 
requires health education on topics such as the aging process, 



Safety Standards 213 



nutritional needs, prevention of and coping with chronic dis- 
ease, and health benefits of physical activity. 

Section 5 also mandates some direct health services to a 
few specific groups, such as "infants, pregnant women in 
high-risk health categories and the elderly" and the "provision 
of preschool and school health services. "20 in general, howev- 
er, public-health nurses do not monitor individual health, nor 
do they inspect schools and child-care centres. 

There is no explicit legislative mandate for public-health 
nurses to provide health services in rest homes under the 
HPPA. To a large extent, any role they assume is decided 
locally. Not surprisingly, then, there are wide variations in this 
role across the province: in some communities, particularly 
those with comprehensive rest-home by-laws, public-health 
nurses actively and regularly visit rest homes; in other com- 
munities, nurses may be unaware that particular rest homes 
exist. Nonetheless, the primary role set out for public-health 
nurses under section 5 is that of educators. (Public-health 
nurses have indicated that they are not comfortable with 
inspection and enforcement responsibilities.) 

Section 5 also mandates public-health inspectors to pro- 
vide services and programs to ensure sanitary conditions and 
to prevent or eliminate health hazards. 



20 Most health boards also 
operate the Home Care pro- 
gram, which delivers nursing 
services to people in the 
community. These services 
are usually provided by an 
agency under contract to the 
Home Care Program, never 
by public-health nurses. 

21 A "health hazard" is defined as "a 
condition of a premises that has 
or is likely to have an adverse 
eflFea on the health of any per- 
son." 



SECTION 10 



Section 10 of the HPPA sets out two separate inspection 
duties to be performed by public-health inspectors: inspecting 
premises used as a "boarding house or lodging house" for 
health hazards; and inspecting food premises for health haz- 
ards. ^1 

Neither section 10 nor the Guidelines are specific about 
what is to be inspected in boarding houses, but the focus is 
clearly on the physical setting, not the residents. The section 
is interpreted to encompass the general sanitation of the 



214 Empowering and Protecting Vulnerable Adults 



22 Section 20 of the HPPA requires 
that every person who owns a 
residential building shall provide 
sanitary facilities or a privy for 
the residents. Thus, the practice 
at Cedar Glen of residents being 
required to use buckets in their 
rooms rather than toilets in the 
bathrooms would have been a 
legitimate concern of the public- 
health inspector. 

23 This contrasts with a requirement 
that public-health boards deter- 
mine a minimum inspection fre- 
quency for food premises. 

24 The food-premises-inspection 
mandate applies generally to the 
"sanitary storage and prepara- 
tion" of the food served; there is 
no concem with its nutritional 
charaaeristics or dietary sufficien- 
cy. 



premises (for example, the presence of rodents and the 
hygiene of washrooms). ^^ 

The terms "boarding house" and "lodging house" are not 
defined in the HPPA. A broad interpretation of the terms would 
include simple room-and-board situations and perhaps even stu- 
dent residences or accommodation-only premises. The Guide- 
lines do not require regular visits to boarding houses, probably 
because of the potentially broad definition, and there is no 
requirement that boarding and lodging houses, however 
defined, make themselves known to municipal authorities. Pub- 
lic-health inspectors often perceive no expectation to conduct 
regular inspections; therefore, rest homes, as defined by the 
Commission, are not regularly or frequently inspected by public- 
health authorities under section 10.23 

The second duty under section 10 — the duty to inspect 
food premises for health hazards — covers all food premises. A 
specific regulation under section 10 explicitly includes (but 
does not define) boarding houses. This regulation is exten- 
sive, detailed, and gives strong authority to inspectors with 
respect to all matters regarding the physical plant (e.g., floor- 
ing, lighting, ventilation, cupboards); the sanitary equipment; 
food handling; food quality (e.g., pasteurized milk and 
inspected meat); and the cleanliness of persons doing food 
preparation. 24 

However, boarding houses that provide food service to 
fewer than ten residents are excluded from the food-premises 
regulations, whose standards are clearly targeted at large 
operations. (They would be prohibitively expensive and tech- 
nically impossible in many smaller settings.) 

Therefore, there is no specific food-premises standard for 
smaller boarding houses. However, the general duty to 
inspect premises for health hazards does apply to boarding 
houses serving food to fewer than ten residents. The duty, 
under section 10, to inspect sanitation in boarding houses, 
would apply to kitchens in smaller premises; but there are no 
specific standards or guidelines. 



Safety Standards 215 



If the medical officer of health or the public-health inspectors 
find a health hazard while inspecting a boarding house or food 
premises, they have extensive power to order corrective action, 
including vacating the premises; closing part of the premises; 
the performance of work specified in an order; removing the 
hazard; and cleaning or disinfecting the premises. 

Where compliance is not forthcoming, the medical officer 
of health may see to it that the order is carried out, with costs 
recoverable from the owner. All orders by public-health 
inspectors and local medical officers of health are appealable 
to the Health Protection Appeal Board and then to Divisional 
Court. 

Like public-health nurses, inspectors tend to prefer persua- 
sion to confrontation. Moreover, public-health bodies are 
reluctant to engage in adversarial court proceedings, which 
are time-consuming and costly. 25 



25 Tliere Ls also .some concern tliat 
die tiikeover power Ls too vague 
and that action under it might 
not \ie upheld in court. 

26 They were produced by a "task 
force on rest homes, lodging 
houses, group homes and like 
facilities" and deal with matters 
such as space requirements, 
sewage disposal, bed sizes, venti- 
lation, lighting, heating, and 
record-keeping. 



Public-Health Officials 



Many submissions to the Commission recommended or made 
reference to a set of inspection guidelines for local health 
boards issued in 1976.^6 These guidelines, which are quite 
extensive in their coverage, are no longer applicable under 
the current public-heakh legislation, which came into effect in 
1983; however, the guidelines are still used by some local 
health boards. 

Some public-health officials believe that these guidelines 
were appropriately scrapped, as they have no basis in public- 
health practice. The Commission has examined them for con- 
tent, irrespective of their relevance to public health. They rep- 
resent a form of comprehensive regulation (in which enforce- 
ment powers are given to local public-health units) — with all 
the concomitant disadvantages that we referred to in chapter 
4. As a resuk, we are unable to recommend their adoption or 
to endorse the role they give to public-health authorities. 



216 Empowering and Protecting Vulnerable Adults 



Some municipalities have given the public-health unit and 
the medical officer of health an extensive inspection mandate 
well beyond inspection of food premises and general sanita- 
tion, including administration of medications, nutritional stan- 
dards, and nursing care. To the extent that this mandate is 
embodied in a municipal by-law, it is probably beyond the 
authority of the municipalities, as we have noted earlier. More 
to the point, however, we deem it inappropriate to give a 
broad mandate to public-health authorities, as we are reluc- 
tant to create medicalized mini-institutions with comprehen- 
sive regulation on the nursing-home model. 



PUBLIC-HEALTH I NSPECTORS 

Section 10 of the HPPA gives public-health inspectors (PHIs) 
the duty to inspect premises used as boarding or lodging 
houses. We recommend that the rest home as defined in 
chapter 3 be included within the meaning of "boarding and 
lodging houses" in the HPPA. We have also recommended a 
system of mandatory registration so all rest homes become 
known to local authorities. Taken together, the duty to inspect 
boarding houses, and in particular "rest homes," becomes 
operational and meaningful. 

RECOMMENDATION 103: That the Ministry of Health 
develop relevant standards and guidelines for the regular 
inspection of rest homes, as defined by the Commission, 
under section 10 of the Health Protection and Promotion 
Act. 

Even should these inspections be limited to matters of sanita- 
tion, the standards would establish what is to be inspected, 
how often, and in what manner. Like all other inspections, 
these must be unannounced if they are to be effective. The 
protocol should also contain a procedure for responding to 



Safety Standards 217 



complaints from individuals or referrals from the RHT (based 
on complaints received by it). 

The effect of this change would be to make regular and 
unannounced visits to rest homes a mandatory part of PHIs' 
responsibilities. 

Moreover, once there is a clear definition of a rest home, 
and registration of all such premises, the PHIs' duty to inspect 
food premises (based on the detailed standards) would 
include all rest homes serving food to ten or more residents. 

RECOMMENDATION 104: That the duty to inspect food 
premises under section 10 of the Health Protection and 
Promotion Act include regular inspections of all rest homes 
serving food to ten or more residents. 



27 The Commission lias not 
explored whetlier it would be 
more effective to develop a 
detailed set of standards for 
small premises or to rely on the 
existing general duty to inspect 
all premises for Scinitation. It any 
such standards are to te devel- 
oped, they must apply not only 
to rest homes: a traditional 
room-iind-boiird setting and a 
care-providing residence should 
also meet the same minimum 
standards for tlie cleanliness and 
safety of food premises. 



We recommend that the Ministry of Health (MoH) consider 
the development of guidelines for all premises serving food to 
three to ten persons. We also recommend that the ministry 
explore the relative merits of an approach based on specific 
standards and one with a more general approach. 27 

RECOMMENDATION 105: That the Ministry of Health 
consider the development of guidelines that would apply 
to all premises serving food to three or more and fewer 
than ten persons. 



PU BLIC-HEALTH NURSES 



We support the continued primary role of public-health nurses 
(PHNs) to promote health, with some informal representation 
on behalf of residents. 

The general mandate to provide health services under sec- 
tion 5 of the HPPA extends to residents of rest homes, as to 
all members of the community. Once rest homes are covered 
under the Landlord and Tenant Act {LTA), the full range of 



218 Empowering and Protecting Vulnerable Adults 



28 The Guidelines focus on con- 
sumer groups or specific healtli 
problems rather tlian on settings 
in wliich prognmis should be 
offered. However, programs for 
the "well elderly" and other 
health-promotion programs are 
essential both to residents and to 
operators of rest homes. 

In general, PHNs provide ser- 
vices to non-profit service 
providers and agencies. Tlie 
Q)mmission recommends that 
rest-home operators also be eligi- 
ble for appropriate health educa- 
tion and promotion services. 

29 They will be expected to con- 
tact the Advocacy Commis- 
sion or the Office of the Pub- 
lic Guardian, as appropriate, 
either directly or by notifying 
the RHT, which would then 
refer the case to the proper 
body or bodies. A violation of 
the residents' rights should be 
investigated by the advocate, 
as a matter of urgency, if 
there is suspicion of abuse or 
intimidation. Alternatively, the 
Office of the Public Guardian 
may conduct an investigation 
to determine if the person is 
not capable of personal 
decision-making, in which 
case a guardian may be 
appointed by a judge. See 
also the earlier discussion on 
mandatory reporting of abuse 
in rest homes, chapter 9. 



programs offered by PHNs becomes accessible to residents at 
their request. 

In addition, however, PHNs should conduct regular out- 
reach programs in rest homes. Such services should be added 
to the Guidelines under the HPPA. "General Standard — Equal 
Access" under the HPPA requires that public-health programs 
and services be "accessible to people in special groups for 
whom barriers exist." Rest-home residents should be recog- 
nized as a special group under this Standard. ^s 

RECOMMENDATION 106: That rest-home residents be 
recognized as a special group for the purpose of equal 
access to mandatory public-health programs under the 
"General Standard — Equal Access" in Mandatory Health 
Programs and Services Guidelines under the Health Protec- 
tion and Promotion Act. 

It is not, nor should it be, within the mandate of PHNs to pro- 
vide nursing care to individual residents. The individual health 
of residents is best served when the PHN works in the role of 
educator with operators, staff, and residents. 

Let us consider a brief example, in which an individual res- 
ident of a rest home is malnourished or in need of medical 
attention. The response should be the same as it would be if 
the event occurred in a private home in the community. If the 
resident is competent and making an informed choice to 
decline medical-model care, that choice must be respected. 
On the other hand, the cause may be rooted in poor-quality 
food provided and/or fear of reprisal from the care-giver if the 
problem is raised by the resident. 

PHNs are not responsible to provide health care to individ- 
ual residents or to enforce a particular standard of health-care 
provision by rest-home operators. 29 However, PHNs cannot 
ignore the observable health needs of residents, or abuse. 
Like all members of the community, they are obliged to report 
abuse in rest homes. 

Indeed, PHNs and public-health nutritionists, where avail- 



Safety Standards 219 

able, can be particularly valuable in dealing with resident 30 See atx)ve, note 7 in chapter 9. 

nutrition. The Commission has recommended a minimum 

nutritional standard as part of a bill of rights; violations can be 

pursued through the RHT. It would not be the nurses' role to 

enforce this standard, although they would be encouraged to 

try informal representation to the operators, inform residents 

or their advocates of appropriate recourse and/or report their 

concerns to the RHT. 

There has been some question as to whether the Canada 
Food Guide or the new standards being developed by Health 
and Welfare Canada are suitable for residents of rest homes. 3o 

RECOMMENDATION 107: That public-health officials, in 
conjunction with the Ontario Dietetic Association, explore 
appropriate minimum nutritional standards for residents of 
rest homes. 

Whatever the outcome, PHNs and nutritionists should offer 
advice and education to operators and staff in the planning 
and preparation of proper meals. This service should be 
required under the Guidelines for the HPPA, analogous to the 
requirement to provide effective nutrition education for care- 
givers of preschoolers in group settings. 

RECOMMENDATION 108: That public-health nurses and 
nutritionists offer nutritional services to rest-home residents 
and operators as part of their mandatory provision of 
health services. This requirement should be incorporated 
into the "Program Standard — Nutrition Promotion" in the 
Mandatory Health Programs and Services Guidelines under 
the Health Protection and Promotion Act. 



Medications in Rest Homes 

Some submissions have argued that operators and staff have 
no responsibilities with regard to medications; if they do 



220 Empowering and Protecting Vulnerable Adults 



31 We do not wish PHNs to assume 
a formal responsibility concerning 
medications, for to do so would 
assign to the public sector the 
costs and burden of following 
up the private entrepreneurial 
activities of individual doc- 
tors. 



assist, they do so as a courtesy to residents, who are responsi- 
ble for their own medications. Others have called for qualified 
medical personnel on all premises to control distribution of all 
medications. Some have recommended that PHNs formally 
approve any system used to assist with medications, or that 
they inspect to ensure a proper system is being used. 

As we discuss elsewhere, formal responsibility with respect 
to medications should lie with the prescribing physicians and 
possibly the pharmacists, but not with PHNs.^i Their role 
remains one of education, information, and informal represen- 
tation. Part of their role should be to offer assistance in the 
development and maintenance of a system in which medica- 
tions are stored safely and distributed correctly, and to offer 
assistance with staff training. 



RECOMMENDATION 109: That public-health nurses offer 
assistance to rest-home operators in developing appropri- 
ate systems for assisting residents with their medications, 
and that they offer training to rest-home staff in utilizing an 
appropriate system. 

PHNs should not be responsible for inspection or formal 
approval of systems being used. They would, however, be 
encouraged to report possible breaches of the standards spec- 
ified in the Report by operators to the RHT or Advocacy Com- 
mission if they are unable to resolve matters informally. In this 
way, PHNs will help to ensure that residents' rights concern- 
ing medications are protected; the ability to report, however, 
will lend great authority to their recommendations and sug- 
gestions. 



Protection from Fire 



It is widely believed that the Fire Code, an extensive regula- 



Safety Standards 221 



tion under the Fire Marshals Act, sets standards for protection 
against fires in all rest homes in Ontario. This assumption is 
erroneous, although it was expressed in many submissions to 
the Commission. In fact, section 18 of the Fire Marshals Act 
provides the only provincially legislated protection for rest 
homes: it gives the fire marshal power to act, in certain haz- 
ardous circumstances, even if the Fire Code is not applicable. 

The Fire Code is currently being revised by the Office of 
the Fire Marshal; the status of rest homes under these propos- 
als has not yet been clarified. We shall recommend specific 
inclusion of rest homes under an appropriate section of the 
revised Fire Code. 



The Fire Code: Part 9 

The sections of part 9 of the Fire Code, which set out fire-protec- 
tion standards for existing buildings, are commonly referred to as 
the "retrofit" sections. They specify the upgrading necessary for 
some types of buildings constructed before 1976. (Since 1976, all 
newly "constructed"-^-^ buildings have been subject to the fire pro- 
tection provisions of the Building Code, which are generally high- 
er than the standards in part 9 of the Fire Code.) 

Each section of part 9 sets out the standards required in a 
specific type of building. ^"^ The standard of fire protection that 
applies to a particular type of building is based on two prima- 
ry considerations: the physical structure of the building, and 
its intended usage or the characteristics of the occupants. 
Higher standards are set for buildings occupied by persons 
who would require assistance to exit the building in case of 
fire. As well, higher standards are set for buildings with more 
than a certain number of floors or surface area. 

Two sections of the existing Fire Code are relevant to the 
present discussion: 

Section 9-3 of the Fire Code deals with "boarding and 
rodming houses" in which (a) the residents "do not require 



32 See note 45 below. 

33 Each section sets out stan- 
dards in four areas of con- 
cern: 

1. fire containment: for exam- 
ple, construction materials for 
walls and ceilings, and fire- 
resistance ratings of walls, 
ceilings, and fire separations. 
(The fire-resistance rating is 
the time that a material will 
withstand exposure to fire 
and heat under specified con- 
ditions); 

2. means of egress: for exam- 
ple, the number, location, 
and access to exits from vari- 
ous parts of the building; 

3. fire alarm and detection: 
for example, the require- 
ments for fire and smoke 
alarms; 

4. fire suppression: for exam- 
ple, access for fire fighting, 
extinguishers, and standpipe 
and hose systems. 



222 Empowering and Protecting Vulnerable Adults 



34 The 600 m^ refers to ground 
coverage only, not the total 
floor space. 

Section 93 also applies to 
smaller Homes for Special 
Care (between three and ten 
residents) if nursing care is 
not required. 

35 Section 9.7 also applies to 
other classes of premises sub- 
ject to the same MCSS legisla- 
tion, but it adopts for these 
premises the standards of 93 
(small non-care-providing 
group homes), 9.4 (larger 
care-providing group homes 
and facilities), 9.5 and '9.6 
(larger non-care-providing 
group homes and facilities), 
as appropriate. 



care or treatment due to age, mental or physical limitations"; 
and (b) the premises are neither more than three storeys high 
nor cover more than 600 m^ of ground. 34 

Section 9.4 applies to specific "health-care facilities" such as 
hospitals, nursing homes, homes for the aged, and larger Homes 
for Special Care. This section contains the highest standards. 

The Office of the Fire Marshal has drafted new regulations 
for part 9 that will apply, if proclaimed, to new classes of 
existing buildings: 

Draft section 9.5 would apply to residential buildings with 
up to six floors. Buildings covered under section 9-3 (small 
boarding homes not providing care) or 9.4 (health facilities) 
are excluded; specifically included are residential buildings 
containing boarding, lodging, and rooming accommodation 
for more than three persons. Boarding accommodation for 
persons who require care, which is excluded from section 9-3, 
is not specifically excluded here. 

Draft section 9.6 would apply to residential buildings of 
more than six floors. It specifically includes buildings that 
contain boarding, lodging, and rooming accommodation for 
more than ten persons. Boarding accommodation in which 
the residents require care is not excluded. 

Draft section 9.7 provides standards for group homes provid- 
ing accommodation with care for fewer than ten persons, 
licensed under specific Ministry of Community and Social Ser- 
vices (MCSS) legislation (such as the Developmental Services Act 
or the Child and Family Services Acf)>'' The proposed standards 
for these small care-providing group homes are more rigorous 
than the current section 9.3: higher-rated fire separations and 
higher standards for means of egress are required so occupants 
have more time to evacuate in case of fire. 



INTERPRETATIO 



In summary, the Fire Code does not apply to buildings built 



Safety Standards 223 



after 1975, provided that they continue to comply with the 
standards for fire safety contained in the Building Code. 36 
Currently, the Fire Code retrofit sections apply to small 
boarding homes and rooming houses in which the residents 
do not require care (section 9-3), and to regulated health- 
care facilities (section 9.4). Proposed for coverage are resi- 
dences subject to specific MCSS legislation, in particular 
small MCSS-funded group homes where care is provided 
(section 9.7), and low- and high-rise residential buildings, 
including those that "contain boarding, lodging, and room- 
ing accommodation" (sections 9.5 and 9.6). 

Strictly interpreted, section 9.3 excludes rooming or board- 
ing houses in which the residents require care, even if no care 
is delivered by operators or community agencies. ^^ Being ill- 
equipped to conduct a needs assessment of residents — for 
that is what section 9-3 might require — the fire marshal's only 
practical alternative is to base decisions on whether care is 
actually provided by operators. 

Under the current Fire Code, there is no specific protection 
for rooming or boarding houses in which the residents require 
care, only the general protection of section 18 of the Fire 
Marshals Act. (If certain very hazardous conditions exist, the 
fire marshal may order structural alterations and the installa- 
tion of safeguards such as alarms and extinguishers. This 
power has seldom been used, although it is undoubtedly 
available with respect to rest homes as defined by this Com- 
mission.) 

Moreover, there are no specific definitions in the Fire Code 
of what constitutes a boarding, lodging, and rooming house, 
or of residents not requiring "care or treatment." 

The exclusion of premises in which residents require care, 
found in section 9.3, is not repeated in proposed draft sec- 
tions 9.5 or 9.6. However, these proposed sections may be 
intended to include only larger rooming houses, such as 
Toronto's Rupert Hotel. 3« 

Because rest homes have not yet been precisely defined 



36 Where a change in use of a 
building "constructed" after 
1975 has occurred, the Fire 
Code and/or the Building 
Code may apply. 

37 Thus, section 9.3 does not 
necessarily distinguish 
between a rooming house, in 
which the operator provides 
no care, and a boarding 
home, in which care is pro- 
vided. 

38 "Real" hotels are subject to 
separate legislation, the Hotel 
Fire Safety Act. 



224 Empowering and Protecting Vulnerable Adults 



39 Decisions about the number 
and location of fire exits or 
fire-resistance ratings of con- 
struction materials used in 
rest homes, for example, are 
ultimately empirical reflec- 
tions of the general tradeoff 
between safety, cost, and 
housing supply. 



and because residents' care needs are not known, there may 
have been uncertainty about how to treat them when revising 
the Fire Code. One observer before the Commission has sug- 
gested that rest homes be covered under section 9.4 (health- 
care facihties); another suggested draft section 9.7 (small 
MCSS group homes). Both these standards are more rigorous 
than those of section 9-3 and draft sections 9.5 and 9.6, which 
generally require higher standards for the same types of 
premises as they increase in size. 

The exclusion of boarding homes where care is provided 
has led some municipalities to enact by-laws containing fire- 
safety requirements specifically directed at such boarding 
homes. These standards are, in many cases, higher than those 
of the Fire Code. 



PROPOSED REVISIONS 



No system of fire protection can absolutely guarantee the safety 
of the individual. All are based on probabilities: the more rigor- 
ous the standards, the higher the likelihood that a greater pro- 
portion of people will be able to escape a given fire. (Fire sta- 
tions are not located on every block in every neighbourhood, 
but rather are positioned so that a response can be made to 
most fires within a specified number of minutes.) 

Although the ideal is to maximize the probability of safe 
egress for the maximum number of people at all times, we 
make tradeoffs in our policy choices. The higher the standards, 
the greater the cost of compliance — and the greater the likeli- 
hood that low-income housing will be diverted to other uses. 

The Office of the Fire Marshal is currently revising the Fire 
Code. Although we cannot comment on the technical issues, 
we believe it is the appropriate role of this Commission to 
contribute to the general discussion, in the expectation of 
facilitating the resolution of the issues.^'' 

In this regard, we have previously indicated that in setting 



Safety Standards 225 



mandatory standards we believe the general tradeoff should 
tend to protect scarce low-income housing, bearing in mind 
that there must be a minimum standard for fire safety below 
which no rest home should operate. 

RECOMMENDATION 110: That as a matter of general pol- 
icy, residents of rest homes should have the same protec- 
tions under the Fire Code as are provided to persons in 
rooming houses. 

We have argued that there is no clear distinction between resi- 
dents of rooming houses and of rest homes. Any person may 
be in one or the other setting, dependent on capricious fac- 
tors including geographic location; the willingness of the 
municipality to subsidize (and thereby create places in) domi- 
ciliary-hostel settings; personal preferences, either for care ser- 
vices or for the greater autonomy of accommodation-only set- 
tings; and availability of places on any particular day. 

As services are increasingly delinked, i.e., delivered to resi- 
dents by community-based agencies rather than operators, the 
more rest homes will resemble rooming houses. The decreas- 
ing distinction between a rest home and a rooming house 
may be expected to bring with it a diminishing need to 
impose higher fire standards on one than on the other. 

We are also very concerned about the possible dehousing 
effect of new, higher standards. Rest homes should not be 
required to meet the standards imposed on health-care facili- 
ties (section 9.4) or proposed for MCSS group homes (draft 
section 9.7). Many rest-home operators could not meet these 
standards without incurring substantial costs (which would 
also fall to government should it choose to assist financially). 
Many operators would leave the industry and convert the 
premises to other uses, become accommodation-only premis- 
es (subject to the lower standards contained in section 9.3, 
draft section 9.5 or 9.6), or ignore the new, high standards. 

As well, the high standards of section 9.4, intended for 



226 Empowering and Protecting Vulnerable Adults 



"institutional occupancies," impose requirements that conflict 
with the homelike environment of smaller rest homes. High 
fire-safety standards were frequently criticized during the 
Commission's consultations for creating an unnecessarily ster- 
ile and cold living environment. 

RECOMMENDATION 111: That the standards required of 
rooming houses as set out in section 9-3 and draft sections 

9.5 and 9.6 of the Fire Code be required of rest homes. 

RECOMMENDATION 112: That the exclusionary reference 
to premises in which the residents "do not require care or 
treatment" in section 9-3 of the Fire Code be eliminated, 
and that the terms "boarding, rooming and lodging accom- 
modation" as used in section 9.3 and draft sections 9.5 and 

9.6 be interpreted to include rest homes as defined by this 
Commission. 

The section of the Fire Code — section 9.3 or draft sections 9-5 
or 9.6 — that would apply to a particular building should be 
determined by number of floors and ground cover. 



I MPACT 

Buildings constructed since 1976 would be unaffected by 
these changes as they are covered by the generally higher 
standards of the Building Code. Communities with municipal 
by-laws containing fire-protection standards for rest homes 
should also be substantially unaffected, as most of this hous- 
ing should be at or near required levels. The greatest impact 
would be felt in communities that do not have municipal by- 
laws, for it is here that the gap between current practice and 
new standards will be widest. 

The Office of the Fire Marshal did an impact analysis of 
meeting the standards proposed in draft sections 9.5 and 9.6, 



Safety Standards 227 



and estimated an average province-wide cost of approximate- 
ly $500 per dwelling unit for buildings constructed prior to 
1976.40 

The standards proposed for rooming houses (under draft 
sections 9-5 and 9.6) have been criticized by some community 
groups because of the probable adverse impact on housing 
stock. We cannot assess the suitability of particular standards: 
our concern is that the same standards be required of room- 
ing houses and rest homes, as defined by the Commission, 
and our general sympathies lie with those concerned to pro- 
tect low-income housing. 



40 Included were apartments, 
which would probably 
involve higher costs than 
rooms in a rest home; both 
would certainly be higher 
than the cost per roomer or 
boarder. 



RECOMMENDATION 113: That the fire marshal explicitly 
recognize the possible adverse effect on the rest-home stock 
of any higher standards under consideration. 

Such an approach, if adopted, might alter the way fire safety 
is conceptualized. In place of a straightforward technical anal- 
ysis about square metres and fire ratings, the assessment 
would become a cost-benefit analysis that explicitly acknowl- 
edges the competition between social goals, such as housing 
availability, and costs. The tradeoffs and choices would 
become more value-based (and difficult), and less technical. 
We further suggest that affected community groups be actively 
involved in deciding these tradeoffs. 

RECOMMENDATION 114: That community housing 
groups be involved in any decision-making process con- 
cerning higher fire-protection standards for rest homes. 



Some substandard housing stock can be brought up to an 
acceptable level at acceptable cost. Owners of these premises 
should be encouraged and financially assisted to upgrade. 
Although we clearly cannot determine what constitutes an 
"acceptable" cost in any specific case, we do endorse the 
principle that public funds be used to aid private operators of 



228 Empowering and Protecting Vulnerable Adults 



41 This program provides forgiv- 
able loans to owners of older 
low-rise apartment buildings 
and rooming houses to 
upgrade to the minimum 
standards set out in municipal 
property maintenance and 
occupancy by-laws. The max- 
imum for rooming houses is 
$5,000 per bed unit. Loans 
are secured by a mortgage 
held by the Ontario Mortgage 
Corporation. There is no 
repayment for the first five 
years; thereafter, loans are 
forgiven at the rate of 10 per- 
cent per year, provided that 
certain conditions, such as the 
property remaining rental 
property, are met. 

42 The by-laws may also deal 
with certain fire-safety matters 
that are not covered in the 
retrofit sections of the Fire 
Code, such as a requirement 
for periodic fire drills. 

43 The City of Toronto Solicitor 
has raised this problem with 
respect to Toronto's Housing 
Standards By-law, which reg- 
ulates fire standards in room- 
ing houses and rest homes: 
"The City Solicitor believes 
there is some doubt as to 
whether Section 29a of the 
Housing Standards Bylaw is 
in effect in light of Section 
18a(4) of the Fire Marshals 
Act ..." Section 29a deals with 
the requirements for fire- 
alarm systems in rooming 
houses. (From Joint Report of 
Commissioner of Buildings 
and Inspections and the Fire 
Chief to Neighbourhood Com- 
mittee, November 12 and 13, 
1990). 

44 The safety/housing supply 
tradeoff is relevant even in 
determining a minimum floor, 
and this of course can change 
over time. 



rooming and boarding houses to meet new standards enacted 
in the Fire Code. 

In particular, we recommend that the Low Rise Rehabilita- 
tion Program of the Ministry of Housing be funded to assist 
owners of registered rest homes to meet the new fire-safety 
standards for rest homes under the Fire Code.^i 

RECOMMENDATION 115: That the Low Rise Rehabilita- 
tion Program of the Ministry of Housing permit that fund- 
ing be made available to operators of rest homes for 
upgrading purposes, including meeting retrofit fire-safety 
standards. 



MUNICIPAL FIRE-SAFETY BY-LAWS 

The Commission has noted that many municipalities have 
established their own standards for fire safety in rooming 
and/or rest homes through municipal by-law. Some are more 
stringent than those contained in section 93 or proposed in 
draft sections 9.5 and 9.6. ^- The legal validity of aspects of 
these municipal by-laws may be questionable. Subsection 
18a(4) of the Fire Marshals Act states that "the Fire Code 
supersedes all municipal by-laws respecting fire safety stan- 
dards. "^-^ 

It is our view that a provincial minimum below which no 
residence should operate comes close to an absolute floor.'*'' A 
provincial minimum should not vary from i"egion to region, 
nor should municipalities be permitted to enact higher or 
lower standards for all rest homes. 

Municipalities that wish to have higher standards of fire 
protection for residents funded in domiciliary hostels are, of 
course, free to negotiate higher standards with operators, in 
their hostel agreements under the General Welfare Assistance 
ActiGWAA). Indeed, municipalities can require high standards 
for entire premises if even one bed is funded, as the terms of 



Safety Standards 229 



such agreement can be any that the parties freely negotiate. 

RECOMMENDATION 116: That where a municipahty 
desires higher standards in a domiciliary hostel than those 
contained in the Fire Code, they should be negotiated on a 
contractual basis between the municipality and operators 
of the rest homes. 

Local municipalities can best judge the quantitative impact of 
higher fire-safety standards on the supply of housing in their 
communities. However, we wish to ensure that higher stan- 
dards are not used as a means of restrictive or exclusionary 
zoning. 

We are concerned that the adverse impact on housing 
stock be minimized. If a community ties the receipt of hostel 
funding to compliance with higher standards, housing at the 
minimum safety floor set in the Fire Code would remain avail- 
able for residents on a self-pay basis. This would then create 
different qualities of housing, with some at higher levels and 
others at lower levels. 

This outcome is optimal in that it maintains the integrity of 
the Fire Code as a province-wide constant bottom line. Mini- 
mum standards will not vary from block to block or community 
to community. Higher standards can be obtained, but only vol- 
untarily on the part of operators, presumably in exchange for 
compensation, for example, through the domiciliary-hostel sys- 
tem. 



The Rupert Hotel Inquest 

The Commission has examined carefully the many thoughtful 
recommendations of the Rupert Hotel fire coroner's jury, and 
we have benefited from their important work. 

Some of the recommendations are very significant, among 
them the power to order twenty-four-hour fire watches with 



230 Empowering and Protecting Vulnerable Adults 



45 "Construction" includes the 
material alteration or repair of 
a building, regardless of age. 
Section 10 of the Act applies 
to all buildings that an 
inspector finds to be unsafe, 
regardless of age. 



the cost added to the operators' municipal tax bills. This 
power exists at present, but its wider use would undoubtedly 
lead to the rapid redress of serious violations of fire-safety 
standards without dehousing residents. Other recommenda- 
tions are more troublesome. A requirement for central moni- 
toring of fire-alarm systems, for example, estimated to cost 
about $1,500 per residence, raises concerns on both technical 
and cost grounds. 

The Commission endorses the general thrust of the jury's 
recommendations, although we cannot comment on specifics 
in the absence of fuller information on cost and technical fea- 
sibility. We note that the Office of the Fire Marshal is seriously 
considering many of the jury's recommendations, and we 
endorse this action. 



1 



RECOMMENDATION 117: That whatever new fire-safety 
standards may emerge from the Rupert Hotel inquest apply 
not only to rooming houses, such as the Rupert Hotel, but 
also to rest homes as defined by this Commission. 

Ultimately, however, the jury's recommendations must be 
resolved by interested parties taking into account the safety/ 
housing-stock tradeoff, the need for appropriate province- 
wide minimum safety standards, and the need to minimize the 
adverse effect on housing availability. 



The Physical Environment 



Standards affecting physical conditions in Ontario rest homes 
are set in two ways: the Ontario Building Code regulates con- 
struction standards, and municipalities may set standards for 
occupancy and maintenance. 

The Building Code Act was proclaimed on December 31, 
1975. All buildings constructed'^5 in the province since that 



Safety Standards 231 



time must conform to the construction standards contained in 
the Ontario Building Code, a regulation under that Act. The 
Building Code is "essentially a set of minimum provisions 
respecting the safety of buildings with reference to public 
health, fire protection and structural sufficiency.... Its primary 
purpose is the promotion of public safety through the applica- 
tion of appropriate uniform building standards. "^^^ 

The retrofit sections of the Fire Code apply to buildings 
constructed before 1976; the Building Code, with its generally 
higher standards, determines fire-safety requirements for 
buildings constructed since then. The Building Code also reg- 
ulates construction aspects such as structural design, ^^ heating, 
and ventilating and air-conditioning equipment. 

Of particular relevance to this Inquiry are the Building 
Code standards for such things as the ratio of residents to 
washrooms, sleeping-room size per person, heating capacity 
sufficient to maintain a minimum room temperature, ^^ mini- 
mum window sizes for room area, and lighting requirements. 

The Code sets standards for buildings according to their 
use or intended use. There is one standard for "institutional 
occupancies," and another, generally lower, standard for "resi- 
dential occupancies." 

"Institutional occupancy" (Division 2) indicates that the use 
or intended use is for shelter by persons "who require super- 
visory care, medical care or medical treatment . . . "^^^ Examples 
of buildings that may be included in this classification are 
nursing homes, hospitals, and children's custodial homes. 5o 
"Supervisory care" is probably strictly interpreted, as most 
group homes are ;^o? designated as "institutional occupancy." 

The other classification, "residential occupancy," indicates that 
the use or intended use is by persons "for whom sleeping accom- 
modation is provided but who are not harboured or detained to 
receive medical care or treatment or are not involuntarily 
detained." Examples of buildings that may be included in this 
classification are apartments, boarding houses, group homes, hos- 
tels, houses, retirement homes, and rooming houses. 5i 



46 From "A Guide to the Use of 
the Code" in Ontario Building 
Code, 1990 (Office Consolida- 
tion). 

47 The loads to be used in 
design calculations and 
design requirements for 
wood, concrete, steel, glass, 
etc. 

48 There is no requirement that 
this minimum be maintained. 
The Municipal Act (section 
210, paragraph 69) gives 
municipalities the power to 
define what is "adequate and 
suitable heat" in rented 
accommodation. 

49 Division 1 intended uses 
include those "by persons 
who are under restraint for 
correctional purposes and are 
incapable of self-preservation 
because of security measures 
not under their control." 

50 These examples are given in 
Appendix A of the Building 
Code. 

51 The examples are again taken 
from Appendix A of the 
Building Code. 



232 Empowering and Protecting Vulnerable Adults 



52 Under the Building Code Act, 
the inspector's decision can 
be appealed. 

53 Bill 112 received first reading 
in the Ontario Legislature in 
the spring of 1991, and is due 
for second reading. Although 
the current Building Code Act 
applies to all buildings in 
Ontario, buildings that have 
not been "constructed" since 
1976 do not have to meet the 
standards contained in the 
Ontario Building Code. These 
buildings were usually con- 
structed to standards con- 
tained in municipal building 
codes. 



The Code does not define the examples given for the two 
types of occupancy; the examples are generic. Thus, a "nurs- 
ing home" would include a nursing home licensed under the 
Nursing Homes Act, a home for the aged operated under the 
Homes for the Aged and Rest Homes Act and, possibly, an 
unregulated rest home, depending on the type or amount of 
care to be given. 

When an application is made for a building permit, an 
inspector decides, on a case-by-case basis, whether the 
intended use is "institutional" or "residential. "52 Presumably, 
most rest homes,, as defined by the Commission, fall within 
the "residential occupancy" classification. 

The Commission recommends that "rest homes" be added 
to the examples of "residential occupancy" in the Appendix to 
the Building Code. We do so because "hostels" and "retire- 
ment homes," listed in the Appendix of the Code as "residen- 
tial" occupancies are subsumed in the Commission's definition 
of a rest home. As well, the Commission does not view rest 
homes as institutions. Were rest homes to be designated "insti- 
tutional," construction costs would rise, thereby limiting the 
creation of housing for vulnerable people. 



RECOMMENDATION 118: That rest homes, as defined by 
the Commission, be included in the list of examples of 
"residential occupancies" in Appendix A (at A-3.1.2.A.) of 
the Building Code. 



Bill 112, the Building Code Act, 1991, extends the coverage of 
the present Act: it will require compliance with the applicable 
code and standards when any building's use changes. 53 This 
means that the owner of a building might be required to 
upgrade a building if its use changes, even if there is no "con- 
struction." Under Bill 112, a building converted to a rest home 
could be required to meet the "residential," "institutional," or 
any newly proposed standard. The first outcome — a "residen- 
tial" designation — would be welcome; the Commission con- 



Safety Standards 233 



siders the "institutional" category to be inappropriate. (A pos- 
sible intermediate classification with new standards for rest 
homes is discussed below.) 



MUNICIPAL OCCUPANCY BY-LAWS 

Once the premises are constructed, there is no formal proce- 
dure to confirm that the premises are indeed being used for 
their stated purpose. The actual use of the premises may be 
regulated by municipal occupancy and maintenance by-laws 
under section 31 of the Planning Act. Some municipalities 
enact broad property standards by-laws to ensure adequate 
maintenance, cleanliness, and repair of all types of residential 
housing. Some municipalities also enact by-laws specifically 
for rest homes under which the homes must meet certain 
standards such as minimum room sizes, and a specified ratio 
of bathrooms to residents. Other rest-home by-laws simply 
require compliance with the Building Code; usually this is 
interpreted as imposing the standard for "residential occupan- 
cies." 

There is some question about the legal effect of municipal 
by-laws that set occupancy standards higher than the applica- 
ble construction standards in the Building Code. Section 27 of 
the Building Code Act states that the Code "supersedes all 
municipal by-laws respecting the construction ... of build- 
ings." 

The distinction between "occupancy" standards (as deter- 
mined by municipal by-laws) and "constmction" standards (as 
determined by the Building Code) is problematic. Municipal 
by-laws dealing with, for example, bedroom size per person 
or the ratio of washrooms to residents are not dealing directly 
with construction. However, municipal by-laws that required a 
higher standard for "occupancy" of a rest home than that 
required for its "construction" under the Building Code might 



234 Empowering and Protecting Vulnerable Adults 



54 The issue becomes particular- 
ly complex if the standards in 
the municipal by-law do not 
require a structural change in 
the building, but as a conse- 
quence of the standards 
imposed, fewer people can 
reside m the premises than 
would have been permitted 
under the Building Code stan- 
dards. 

55 For cases that deal with the 
effect of section 27 on munic- 
ipal by-laws, see Minto Con- 
struction Ltd. V. Gloucester 
(1979 8 MPLR 172 (Ont. Div. 
Ct.); Toronto v. Shields (1985) 
29 MPLR 207 (Ont. C.A.) and 
Evans v. Toronto Terminal 
Railways Co. et al. unreported 
decision of Ontario Court 
(General Division), delivered 
April 15, 1991. 

56 In Hamilton, the lodging 
house by-law requires that a 
bedroom comprise 110 
square feet for one person, 
180 square feet for two, 270 
square feet for three, and 320 
square feet for four persons: 
these numbers correspond 
exactly to the Building Code 
standard for "institutional 
occupancies." In Windsor, the 
rest-home by-law requires 600 
cubic feet per resident, with 
80 square feet floor coverage 
if there is only one resident in 
a bedroom. In Toronto, the 
Personal Care Rooming Hous- 
es by-law is silent on the 
issue, but the Housing by-law 
applicable to all residential 
housing requires that a bed- 
room comprise 40 square feet 
per person and the premises 
comprise a total floor area in 
habitable rooms of at least 
100 square feet per person. 

We also compared the 
ratio of residents to toilets in 



well be considered to be imposing a "construction" standard 
in disguise, as it might necessitate alterations to the existing 
construction. 54 There is no case law to resolve this particular 
issue. 55 

In the Commission's view, if a building is legally construct- 
ed for its intended use according to the Building Code's classi- 
fications and standards, municipalities should not be permit- 
ted subsequently to impose higher standards for the same use. 

How high a municipality can set its standards for occupan- 
cy of a rest home in view of section 27 of the Building Code 
cannot ultimately be resolved without a clear determination of 
whether rest homes are subject to the "institutional" or "resi- 
dential" standards in the Building Code. Given our belief that 
rest homes should be considered "residential" premises for the 
purpose of the Building Code, it follows that municipalities 
should not be permitted to impose standards for occupancy 
higher than those of the Building Code "residential" standards. 

Let us consider one specific example. The Building Code 
specifies that a bedroom intended for "residential occupancy" 
must comprise seventy-five square feet for one person, 100 
square feet for two people and an additional fifty square feet 
for each additional person. Under section 27 of the Building 
Code Act, municipalities lack authority to alter this ratio in a 
by-law relating to the construction of "residential" premises. 
We have considered the space requirements of various munic- 
ipal by-laws in Ontario. The municipal occupancy standards 
for rest homes range from standards lower than the Building 
Code "residential" standards up to the Building Code "institu- 
tional" standards. Others cannot be easily compared to the 
Building Code requirements. 56 

We cannot comment on the suitability of any minimum 
standard set out in the Building Code or municipal by-laws; 
however, there is also no clear or consistent pattern across 
municipalities. We do not value consistency for its own sake, 
and even the administrative ease of a single standard is mere- 
ly one among many considerations. Of greater concern are 



Safety Standards 235 



the purposes to which local discretion may be put. For exam- 
ple, one community may require a greater floor space for 
every resident on the grounds of compassion and human dig- 
nity; another may demand the same high requirement 
because land is inexpensive and it costs little to give everyone 
ample room. A third community, however, may use the same 
requirement as an exclusionary measure, to keep out less 
desirable types of housing and residents, by making it uneco- 
nomical to operate or too expensive to construct a rest home 
within its boundaries. 

Thus the question is not of the standards themselves, but 
of motive. Local autonomy cannot become a tool for exclu- 
sionary housing practices: this is non-negotiable in the eyes of 
the Commission. Acceptance of unfettered local autonomy 
necessitates acceptance of all its motives and outcomes. As 
some of these are unacceptable, the Commission recommends 
that municipal discretion continue to be circumscribed by the 
overriding jurisdiction of the Building Code. 



the Building Code and the 
three municipal by-laws. Each 
was different. 

57 This might be comparable to 
the standards proposed for 
draft section 9.7 of the Fire 
Code discussed earlier. 



RECOMMENDATION 119: That the Building Code be 
endorsed as a single provincial construction standard, and 
that municipalities not be permitted to impose higher stan- 
dards for the occupancy and/or maintenance of rest homes 
than those required by the "residential-occupancy" standard 
of the Building Code. 



Some concern has been expressed that there are only two rel- 
evant occupancy classifications in the Building Code. It is felt 
that the "residential-occupancy" standards may be too low for 
some types of housing now subject to them but that the "insti- 
tutional-occupancy" standards may be too high and costly. 

Interest has been expressed in the development of new, 
intermediate standards for group-home-type living arrange- 
ments57 in which there are centralized facilities (such as 
kitchens), unrelated persons sharing living and sleeping 
space, supervision required, and vulnerable residents. The 



236 Empowering and Protecting Vulnerable Adults 



Commission has no position on the optimal number of occu- 
pancy classifications in the Building Code, though two does 
seem low, and there may be a persuasive case for a third 
option. Our concerns are somewhat different. 

When determining the premises to which any new stan- 
dards will apply, adequate account should be taken of the 
increasing trend to delink care services from accommodation. 
To include a building within one category of the Building 
Code because supervisory, social, or medical services are 
delivered in-house, yet to exclude the identical building 
across the street because services are delivered from commu- 
nity-based agencies does not make sense. The Commission 
believes that any new standard should be equally applicable 
to rest homes and rooming/room-and-board accommodation, 
whatever the source of needed care. 



ASSESSMENT 

Many submissions to the Commission have indicated concern 
about physical standards in rest homes. Some of the most fre- 
quently identified areas for which provincial standards have 
been requested are set out below. They are followed by the 
ways in which the Commission's proposals offer a response. 

1. space requirements: 

(a) total capacity of residence; 

(b) bedrooms: cubic air space and/or floor space per 
resident; space between beds; ceiling heights; special 
restricted or prohibited use of basements as bedrooms; 

(c) size of dining and sitting rooms related to capacity 
of residence; requirement to have a sitting room; 

2. ventilation requirements: 

(a) window size and opening size in bedrooms related 
to bedroom floor space; 

3. toilets/showers: 



Safety Standards 237 



(a) location and number related to capacity of resi- 
dence; 

4. water supply: 

(a) temperature-regulating device; 

5. lighting: 

(a) minimum levels; 

6. residence air temperature: 

(a) minimum level; 

7. waste disposal and sewage; 

8. secure area for belongings. 

In considering such issues, the Commission began with the 
given that we lack the technical expertise to devise or assess 
specific standards. We examined a number of the municipal 
by-laws as well as those proposed by the Ontario Long-Term 
Residential Care Association (OLTRCA) and community 
groups, and found that there was no widely agreed upon set 
of standards. 

We also began with the assumption of an inverse relation 
between standards and housing supply: higher standards 
increase costs, which tend to result in dehousing vulnerable 
residents. Our strong preference is to protect low-income 
housing, while recognizing a minimum floor below which no 
rest home should operate. 

We are satisfied that most of the specific issues raised 
above are treated through our proposals. Most or all luxury 
retirement homes are assumed to meet or exceed Building 
Code minima. The power to regulate minimum temperatures 
exists under the Municipal Act (section 210, paragraph 69); 
the requirement for a secure storage area is dealt with in the 
residents' bill of rights proposed by the Commission. Most of 
the other items are dealt with in the Building Code. The pro- 
posed Building Code Act, 1991 (Bill 112) should ensure that 
any newly established rest homes will meet at least the "resi- 
dential-occupancy" standard of the Code. 

The Commission is satisfied that the Building Code (and 



238 Empowering and Protecting Vulnerable Adults 

58 See discussion on by-laws and bjh 112) specify an acceptable set of minimum conditions. If 
contracts in chapter 4. 

any particular "residential" standards in the Code are unac- 
ceptable, the appropriate response is to alter the Building 
Code. We do not consider it desirable for individual munici- 
palities to require standards higher than those in the Building 
Code, and we support the "residential-occupancy" standard as 
suitable for rest homes as well as accommodation-only 
premises, such as rooming houses. 

Problems may arise when municipalities have no occupan- 
cy and maintenance by-laws. A requirement that all munici- 
palities have by-laws was rejected because they might set 
standards so high as to be exclusionary or so low as to be 
ineffectual. A requirement that all municipalities share one 
standard for the occupancy and maintenance of rest homes 
(such as the "residential" standard in the Building Code) was 
also rejected because of the potential cost and the likelihood 
of dehousing vulnerable residents. We thus endorse continued 
municipal jurisdiction in this area, provided that standards are 
not set higher than those of "residential-occupancy" standard 
of the Building Code. 

In some areas — such as a requirement to have a sitting 
room or a prohibition on basement bedrooms — the Building 
Code is silent. Municipalities may act in these or any other 
areas using contracts with owner/operators receiving funding 
through the domiciliary-hostel provisions of General Welfare 
Assistance (GWA). The municipality may negotiate contractual 
terms that require any rest home in which even one bed is 
funded through these provisions to meet any conditions it 
wishes in the entire building. 58 

Some rest homes, we readily acknowledge, will exempt 
themselves from these higher standards by declining or being 
unable to contract with the municipality. Some of these will 
offer lower-quality housing, which would be unavailable to 
vulnerable low-income residents if a higher standard was 
required for all rest homes by municipal by-law. We consider 
this outcome to be quite acceptable. 



Safety Standards 239 



Enforcing Minimum Standards 

Each regulatory authority possesses a substantial array of 
remedies, from minor reprimands to closure of premises. No 
one has indicated to the Commission dissatisfaction with these 
responses. The problems, as presented to the Commission, lie 
not in the content of the responses, but rather in their applica- 
tion and enforcement. 

First, many people have criticized inspections announced 
in advance: indeed, such prior warning subverts the inspec- 
tion from a serious assessment of whether minimum standards 
are being met. 59 It is our very strong opinion that all inspec- 
tion or regulatory visits must be unannounced to ensure they 
have effect. 



59 This view is confirmed by the 
Commission's own experi- 
ence in which all official visits 
to rest homes were arranged 
in advance. The dominant 
smell in the homes was typi- 
cally that of disinfectant, and 
in some cases bedrooms were 
so neat as to suggest no one 
actually slept there! 



RECOMMENDATION 120: That all inspection visits to rest 
homes be conducted on an unannounced or surprise basis. 



Second, many concerns have been expressed about the fail- 
ure of regulatory and inspection authorities to act on com- 
plaints in an appropriate manner. Some complaints are not 
acted on at all; in others, there is merely a pro forma investi- 
gation, often with a substantial time lag. Some remedies 
ordered are considered inadequate by the complainants; in 
other cases, the follow-up or enforcement of a remedial order 
is deficient. In addition, there seems to be considerable 
regional variation in the adequacy of enforcement, with par- 
ticular problems in unincorporated municipalities. 

Each of the three inspecting authorities of primary interest 
to this Commission has an internal appeal mechanism: the 
Fire Code Commission; the Building Code Commission; and 
the Health Protection Appeal Board. However, their focus is 
on appeals of inspection orders; as well, only ov/ners and 
operators affected by an order can appeal. This means that an 
inspector's decision not to make an order is not appealable; 



240 Empowering and Protecting Vulnerable Adults 



nor do residents of a rest home have the right to appear 
before the appeal tribunal. Thus, they are not able to appeal 
an order or a penalty that they believe to be inappropriate. 

Some submissions to this Commission argued that a tri- 
bunal (perhaps the RHT) should have power to review any 
local inspection-unit decision — procedural or substantive — 
that affects a rest home. The decisions of front-line inspectors 
could be appealed to the tribunal, and the tribunal would 
have the power to order anything that the inspectors could 
have ordered, including closure of the premises. 

The relation between the tribunal and the current appeal 
bodies would have to be clarified, but the tribunal would be 
more user-friendly, giving ready access and standing to any 
individual who files a complaint. It would also operate out- 
side the "culture" of professional fire, building, and health 
inspectors. 

Some see this to be advantageous, but others note that it 
risks lacking credibility within the professional culture. It 
would also be costly to duplicate existing appeal systems. 
Front-line staff, who would have to oversee the implementa- 
tion of any remedies ordered by the tribunal, suggest that this 
model is too adversarial and counterproductive. 

Two alternatives have been suggested to the Commission 
as more likely to be effective: a provincial inspectorate could 
be established within the provincial ministries responsible for 
fire, building, and public health. Persons dissatisfied with local 
responses could approach the relevant inspectorate. Provincial 
inspectors could investigate, hear all interested persons, medi- 
ate when appropriate, and make any appropriate orders that 
the local inspectors could have made. 

This approach would be less adversarial, and would oper- 
ate within the norms and culture of the inspection system. 
This may, of course, be disadvantageous, in that the relation- 
ship between local inspection units and the provincial inspec- 
torate may be too cosy to produce an impartial reconsidera- 
tion of local decisions. It might also cause some municipalities 



Safety Standards 241 



to neglect, de-emphasize, or vacate the inspection field: they 
may be reluctant to inspect what the province might well rein- 
spect. 

The other alternative calls for the creation of a separate 
unit within the current appeal commissions to deal specifically 
with rest-home settings and, over time, to develop familiarity 
with and expertise in the problems in this area. Residents 
would be given the right to appeal both inaction by public 
inspectors and orders they deemed inappropriate; owners and 
operators would retain their present appeal rights. 

Designing institutions and processes to ensure compliance 
with regulatory standards is rarely simple, as it requires a 
careful assessment of the objectives and priorities of the pro- 
gram. Any compliance mechanism selected to realize these 
objectives is likely to have both strengths and weaknesses. 6o 

So it is with the options to secure compliance with fire, 
health, and building standards. The advantages of an indepen- 
dent quasi-judicial tribunal include the openness of the adver- 
sarial process, and the independent decision-makers' impartial 
duty to base their decisions on the material produced at the 
hearings. The disadvantages include the delays and expense 
of any "judicialized" process, and the counter-productive ten- 
sions typically aroused by adversarial procedures. This latter 
point is particularly important when the dispute involves par- 
ties in an ongoing relationship, as local enforcement officials, 
residents, and operators are likely to be. 

The "inspectorate" approach may be less formal and legal- 
istic, and consequently quicker, less expensive, and, in a 
sense, more accessible to vulnerable persons. However, the 
bureaucratic process is less open, and subject to the suspicion 
that the decision-makers are more responsive to the views of 
the officials under review than to those of the complainants. ^i 

The application of any model for regulatory compliance to 
a specific context requires a sustained attention to administra- 
tive detail that is best undertaken following this Inquiry. This 
task "should be the responsibility of the ministry charged with 



60 Another model suggested to 
the Commission was that of 
the Employment Practices 
Branch (EPB) in the Ministry 
of Labour. This unit recovers 
back pay, vacation pay, etc., 
owed to employees from 
employers and generally does 
so in an efficient and expedi- 
tious manner. We briefly 
explored the potential appli- 
cability of this model to the 
rest-home sector, but did not 
pursue the issue, as the EPB 
largely deals with matters that 
are quantifiable (compensa- 
tion owed) and in which the 
facts are often not in dispute. 

61 See "Policy hiiplementation, 
Compliance and Administra- 
tive Law" (Law Reform Com- 
mission of Canada, Working 
Paper 51, 1986). See also M. 
L. Friedland, editor. Securing 
Compliance: Seven Case Stud- 
ies (University of Toronto 
Press, 1990). 



242 Empowering and Protecting Vulnerable Adults 



the implementation of this Report, in consultation with inter- 
est groups and the ministries responsible for health, fire, and 
building inspections. 

RECOMMENDATION 121: That the ministry responsible 
for rest homes ensure an effective and speedy appeal pro- 
cedure is in place with respect to inaction or decisions by 
public inspection authorities responsible for minimum 
standards in rest homes. 

We, therefore, make no recommendation on a preferred 
means for securing compliance with minimum fire, health, 
and building standards. However, rest-home residents should 
be ensured ready and easy access to an effective and speedy 
mechanism for reviewing the decisions, action, or inactivity of 
front-line enforcement officials. This goal would be equally 
important if the proposals in this Report were to be extended, 
as we think that they should be, to other congregate living 
environments, including rooming houses, nursing homes, 
group homes, and, eventually perhaps, all residential tenan- 
cies. 

RECOMMENDATION 122: That in matters within the juris- 
diction of Fire Code Commission, the Building Code Com- 
mission and the Health Protection Appeal Board, any resi- 
dents or their advocates shall have the same formal stand- 
ing as is given to the owners/operators. 

We also recommend that the compliance mechanism be able 
to examine not only the adequacy of any order made by 
inspectors but also their failure to act. Such inactivity would 
include, for example, a fire inspector's decision not to make 
an order to remedy apparently hazardous electrical wiring, a 
failure by a health inspector to respond to or to investigate a 
complaint about the filthy condition of a kitchen, or a failure 
by a building inspector to follow up within a reasonable time 



Safety Standards 243 



a complaint about the dangerously dilapidated state of the 
premises. None of these forms of official inertia is currently 
subject to appeal. 

RECOMMENDATION 123: That the mandates of the 
appropriate appeal tribunal or provincial inspectorate be 
extended to include non-response and untimely responses 
on the part of front-line inspectors. 

This Commission is very strongly of the view that legal review 
protection should be as available to the intended beneficiaries 
of the program — the residents of rest homes — as it is to the 
operators of the premises. The law cannot merely protect 
operators from unjustified official intrusions; it must also 
ensure that the beneficiaries of statutorily created rights 
receive their entitlement. 

As we anticipate that rest-home residents will make use of 
any expanded rights to seek a review of inspection orders, we 
recommend that steps be taken to ensure that current appeals 
bodies have members familiar with rest-home settings. Should 
the mandate be extended to allow standing to all residential 
tenants, the appeal boards should be composed of members 
familiar with a variety of residential settings. 

RECOMMENDATION 124: That persons familiar with resi- 
dential tenancies, including residents, be appointed to the 
Fire Code Commission, Building Code Commission, and 
Health Protection Appeal Board. 

Once rest homes are covered under the LTA and the proposed 
Rent Control Act, 1991 (RCA), residents will have means not 
currently available to them to enforce health and safety stan- 
dards. Under the LTA tenants may apply to a judge to enforce 
landlords' responsibility to maintain premises in a good state 
of repair and to comply with health and safety standards. 
Under section 96, tenants may obtain court orders requiring 



244 Empowering and Protecting Vulnerable Adults 



landlords to comply with municipal work orders. In some 
cases, tenants will be able to get an abatement of rent until 
the landlords have complied. 

As well, under the proposed RCA (section 23) tenants may 
apply to the chief rent officer for an order reducing their rent 
when maintenance or repair in the premises is inadequate. 
And under section 39, a rent penalty may be imposed for 
non-compliance with work orders regarding the standards of 
maintenance in the premises, i.e., landlords may not increase 
the rent until the work is done and the order is rescinded. We 
view the LTA and RCA as part of the solution, in addition to 
and not in lieu of the proposals made immediately above. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA^ 



PART IV 



Related Issues 



246 Related Issues 



In this final part of the Report, we examine a number of 
broader issues relevant to rest homes. We consider the role of 
professionals and human resources in three contexts: educa- 
tion/training needs; the medical role; and referrals and place- 
ments into unregulated accommodation. We also summarize 
our recommendations with respect to provincial/municipal 
relations. The Report proper concludes by asking once again 
the critical question: "Would all this have prevented Cedar 
Glen?" An appendix then briefly revisits long-term care and 
comments on certain current proposals in that area. 

We begin, however, with the one critical issue that we have 
not yet discussed: housing, its supply and availability to vul- 
nerable adults, and the fundamental conundrum that without 
greater choice in housing options, there will be limited effec- 
tiveness for any system of resident protection. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA^ 

11 

Housing: Supply and 
Choice 



467. 



The Commission's Discussion Paper stressed hous- i Transitions, Queen's Printer 
ing supply as "a necessary condition for any real for^Ontano, Toronto, 1988, p. 

and effective solution" to many of the problems 
encountered by rest-home residents. Neither a reg- 
ulatory system for protecting vulnerable adults nor 
empowerment and informed consumer choice is 
likely to be effective unless there are housing options and 
alternatives. Residents' power to leave unacceptable settings 
serves as the ultimate sanction to operators. Yet as the Social 
Assistance Review Committee (SARC) bluntly observed, there 
"is simply not enough affordable housing for people who 
need it."i 

Housing "supply" and housing "choice" are not the same 
thing, although the distinction is often subde. Residents have 
repeatedly stressed that vacancies mean little if the quality of 
all housing is the same. Choice is merely theoretical if the 
characteristics common to all boarding-home accommodation 
outweigh the differences between particular premises. In 
many communities, there appears to be a small number of 
high-quality rest homes. Not surprisingly, these premises are 
difficult to enter, as residents do not tend to move out. Most 
other rest homes are seen as virtually interchangeable and of 
a uniform low quality. There is little incentive to move from 
one unacceptable place to another. 



247 



248 Related Issues 



2 Those who, for example, are 
unwilling to attend treatment 
sessions. 

3 These needs include the 
need/wish to be left alone, 
to live anonymously without 
particular interaction with 
one's neighbours. 

4 hi one northern city, the 
Commission heard about the 
experiences of women with 
hearing impairments and 
psychiatric histories: the 
communication problems in 
standard rooming houses 
were acute, often resulting in 
exploitation and/or dehous- 
ing. 



Thus the issue is not solely one of supply. Residents vary 
widely in their needs, interests, and preferences, and in their 
capabilities to function independently; moreover, these needs, 
interests, and preferences change with time. There must be a 
variety of housing types to complement individual interests, 
preferences, and capabilities. More important, there must be 
flexible, portable services available to meet individuals' needs. 

The Commission has been repeatedly told that the rest 
home fills an essential place in the housing spectrum (in the 
short term, at least). Group homes run by non-profit agencies, 
even were they available in adequate numbers, cannot meet 
the needs of all. Rest homes often take the "difficult" cases, 
those residents whose behavioural or other problems render 
them unsuitable for or unacceptable to treatment-oriented 
facilities.- Treatment centres often "cream off" the prospective 
residents who are most motivated and capable of personal 
growth and development; the difficult cases are left for the 
rest homes. 

The ease of access and lack of criteria for housing people 
in rest homes leads to inappropriate housing arrangements. 
People who should receive housing and services tailored to 
their needs are instead warehoused. As well, rest-home opera- 
tors may be providing — and being paid to provide — -either 
more or fewer services than are needed and desired. 

What is required is a range of housing types and service 
options that better corresponds to the needs and wishes of 
individual residents. ^ The need for appropriate housing and 
social supports among vulnerable adults with multiple disabil- 
ities is particularly severe. ^ 

Although non-profit housing is typically preferred for many 
vulnerable adults, it is not without problems. For example, the 
current emphasis in non-profit housing is on generic provi- 
sion rather than premises targeted to specific groups; different 
populations live in neighbouring apartments in the same 
building. Both the 1989 Ministry of Housing consultation on 
housing for seniors and this Commission heard about tensions 



4 



Housing: Supply and Choice 249 



resulting from the integration of persons with developmental 
or psychiatric disabilities into seniors' housing. 

This Commission sees this problem as one of supervision 
and support services rather than an issue of housing. The anx- 
ieties of frail seniors must be eased in any way not demeaning 
to others; however, the real solution lies in better supports for 
all vulnerable adults. Segregated housing merely localizes the 
symptoms; it does not solve the problem. 



5 Housing for people with spe- 
cial needs includes housing 
for vulnerable adults as 
defined by this Report. 



Special-Needs Housing 

It is now widely understood that public policy must further 
the development of a spectrum of special-needs housing.^ 
There are three conceptually distinct forms of such housing: 
institutions; supportive community living; and fully indepen- 
dent living accommodation. 

Figure 2 

Spectrum of Special-Needs Housing 



Institutions 



Supportive Community Living 



Fully Independent 



/ Group Homes 



Individual Units 
with Tied Services 



Individual Units with 
Portable Services 



Supportive Community Living 



250 Related Issues 



6 Bert Perrin Associates, Dis- 
cussion Paper on Supportive 
Housing, presented to the 
Ministry of Housing and the 
Ministry of Gommunity and 
Social Services, August 14, 
1990. 

7 CHSSD is a joint Division of 
MoH and MCSS. The term 
"supportive housing" refers 
only to the development of 
new, non-profit rental accom- 
modation to which MoH, 
MCSS, or CHSSD has made a 
commitment to fund support 
services. (These ministries also 
offer community support ser- 
vices to individuals in their 
own homes.) Residents in sup- 
portive housing may also 
receive community services 
funded by these ministries/ 
division in addition to the ser- 
vices funded by the support- 
ive-housing initiatives. 



The second category obviously covers a wide housing 
range, varying in degree of independence and integration into 
the community from group homes supplying all support ser- 
vices to individual living units to which all services are deliv- 
ered from the community. 

It is a concern of the Commission that this range has been 
severely truncated in some communities because of the con- 
venience of the rest-home option. The result is that people 
are living in rest homes because appropriate community ser- 
vices are not being developed to support more independent 
living. 

The number of people who would be unable to live in a 
supported community setting given adequate and appropriate 
support services is relatively small. ^ The rest home, at its best, 
represents but one point on the housing spectrum, and 
should not serve as a convenient catch-all for people who 
could receive more appropriate support in other housing 
arrangements. 



The Importance of Supportive Housing 

"Supportive housing" is an initiative to provide housing and 
support services to people with special needs in non-profit 
rental housing. The Ministry of Housing is responsible for 
developing non-profit housing programs. The ministries of 
Health (MoH), Community and Social Services (MCSS), and 
the Community Health and Support Services Division 
(CHSSD) commit funds for resident support services in these 
housing projects. 7 

The Commission attempted to ascertain the total support- 
ive housing and funding in Ontario; however, the three min- 
istries involved do not have data bases with common defini- 
tions for supportive housing. Therefore, it is difficult to deter- 
mine how many new supportive-housing units have been 
built, what the target is, how many persons live in supportive 
housing, and what constitutes the expenditures in this area. 



Housing: Supply and Choice 251 



RECOMMENDATION 125: That current efforts at coordi- 
nation among the ministries responsible for supportive 
housing be intensified, and that they develop a single, 
common definition of "supportive housing." 

In the appendix to this chapter we present information con- 
cerning the development of supportive housing in Ontario. 



8 Norpark Research Consul- 
tants, Inc., Research Study of 
Supportive Housing 
Initiatives, a report prepared 
for MCSS and MoH, August 
1991. 

9 Ibid., p.22. 



SERVICE PROVIDERS AND HOUSING 
PROVIDERS IN SUPPORTIVE HOUSING 

There is only limited information available on who actually 
delivers services in supportive housing and the extent to 
which housing provision has been delinked from the provi- 
sion of services. « MoH was unable to provide this information 
with regard to its supportive-housing program. MCSS provid- 
ed the following extrapolations from a sample of its support- 
ive housing:^ 

1. in 46 percent of MCSS projects, the housing provider 
was the sole provider of support services; 

2. in 70 percent of MCSS projects, all or most of the sup- 
port services were provided by the housing agency; 

3. in l6 percent of MCSS projects, all support services were 
provided by an agency other than the housing provider. 



The separation of housing and delivery of support services 
has been identified as a central tenet of this Inquiry. One con- 
sequence of delinking is that housing could become more 
generic with operators of care-providing homes becoming 
more like traditional landlords. To the extent services are 
needed and/or wanted, they should be provided by those 
with expertise in delivering services, not by those who skills 
lie in providing housing. 

The provision of accommodation and care by the same 



252 Related Issues 



10 As we discussed in chapter 5, 
many supportive-housing 
providers claim exemption 
from the LTA, usually on the 
grounds that they provide 
housing for the purpose of 
care and/or receive funding 
under health or social-ser- 
vices legislation. 

1 1 If a service ministry has bud- 
geted for services for persons 
in X units, it cannot continue 
service for a person who 
leaves a unit, as the funds 
must serve the new resident 
of the vacated housing unit. 



providers (linking) also raises the issue of the Landlord and 
Tenant Act {LTA). The Ministry of Housing expects compli- 
ance with the LTA by supportive-housing operators. With cov- 
erage under the LTA, tenants would no longer be required to 
accept services as a condition of remaining in supportive 
housing. 

The ministries that fund supportive services have permitted 
the linking of housing and services and thus provided the 
basis for supportive-housing providers to claim exemption 
from the LTA.""^ The Ministry of Housing has not yet devel- 
oped a standard formal agreement incorporating its expecta- 
tion concerning LTA coverage. Moreover, the legal conse- 
quences of such expectations and agreements are unclear. 
The Ministry of Housing could enforce its expectation through 
its control of operating funding to the housing providers, but 
appears not to have done so. 

The tying of service funding to a particular housing unit 
makes such services non-portable: if residents leave the sup- 
portive housing, services do not follow them. If they decline 
the particular services attached to the housing, they may be 
unable to obtain them from another agency, as it might not be 
funded to provide services to such residents. Thus, linkage 
seems to be a budgetary consideration as much as a matter of 
public policy. 11 

In the long term, the only solution is a system of fully 
developed community services. If these were in place, there 
would be no need, for budgetary reasons, to ration services 
by tying them to particular units of housing. All individuals 
would be able to obtain services, wherever they chose to live. 

In the short term, particularly in an era of budgetary con- 
straints, this scenario is not attainable. It does, however, sug- 
gest the direction we must move in. Ultimately, expanding 
community-service funding is the surest way to delink ser- 
vices from units of housing. 

There is also a risk that supportive housing may evolve 
into new mini-institutions when services are tied to housing 



Housing: Supply and Choice 253 



rather than to people. If services moved with the people there 
would, in theory at least, be no need to allocate specific oper- 
ating funds to particular units of housing. 

These areas must be explored as ministries develop their 
commitment to portable services and experiment with individ- 
ualized funding. If, as the above data from MCSS make clear, 
housing providers in nearly half the current supportive hous- 
ing are the sole providers of support services, then delinking 
and portability are still a long way off. 

RECOMMENDATION 126: That the ministries involved 
with supportive housing recognize the importance of 
delinked service provision to such housing. 



Using Land More Intensively 

A number of initiatives from the Ministry of Housing in recent 
years have encouraged more intensive uses of land to 
increase the supply of available housing. We wish to comment 
on two such initiatives, identified during our consultations. 



FREEING UP UNUSED LAND 

In the mid-1980s, the province adopted a policy of selling its 
surplus lands in order to maximize revenue to the provincial 
treasury. In 1987, this approach was superseded by the Hous- 
ing First policy: surplus land of ministries and some Crown 
agencies that was suitable for housing was to be made avail- 
able for that purpose. At least 35 percent of the housing units 
developed in any year were to be "affordable." As of mid- 
1991, approximately 5,000 housing units had been created 
under this initiative. 

In- June 1991, a joint Green Paper from the Ministry of 
Housing and the Ministry of Government Services put for- 



254 Related Issues 



12 The Commission also endors- 
es any moves the federal gov- 
ernment or the municipalities 
may make concerning the dis- 
posal of their surplus Ontario 
land, and urges both Ottawa 
and the municipalities to 
move expeditiously in this 
regard. 

13 Accessory apartments are 
defined as self-contained 
units created by converting 
part of or adding on to exist- 
ing homes. They include, but 
are not limited to, basement 
apartments. Ministry of Hous- 
ing, Land Use Planning for 
Housing: Policy Statement 
(July 13, 1989). 

14 Between 1971 and 1985, new 
local zoning by-laws and the 
increase in property values 
resulting from gentrification 
led to the loss of 7,000 room- 
ing-house units in Ontario. 
More Than Shelter ..., p. 4. 



ward a Housing Priority policy: 

Previously in practice sites only tended to become avail- 
able for ... housing use when it was decided that no other 
provincial uses were feasible. In future sites will be consid- 
ered for housing use as soon as they are surplus to the 
needs of an individual ministry or agency, (p. 4) 

The Green Paper acknowledges the modest contribution of 
such initiatives: housing production on government sites is 
unlikely to constitute more than 5 percent of total housing 
production in any year. Nevertheless, the Commission endors- 
es the Housing Priority initiative, and supports other moves to 
free surplus government land for affordable housing, includ- 
ing housing provided by non-profit community suppliers. 12 



ACCESSORY APARTMENTS 
AND ROOMING, BOARDING 
LODGING HOMES 13 



AND 



The Commission received a number of comments about the 
geographic concentration of housing for vulnerable adults. In 
one community we visited, virtually all rest homes are located 
in one neighbourhood, and we have the sense that a similar 
finding would emerge in many other cities, as well. 

Housing for discharged psychiatric patients tends to locate 
near provincial hospitals when possible, and large houses 
suitable for boarding homes tend to cluster in certain areas. 
Restrictive and exclusionary zoning practices in many commu- 
nities further concentrate housing for vulnerable adults, i"^ 

Accessory apartments provide an important source of inex- 
pensive housing, even in communities where municipal zon- 
ing rules render them illegal. This illegal status often disem- 
powers residents, as lack of coverage under the LTA may sub- 
ject them to capricious behaviour and precipitate eviction by 



Housing: Supply and Choice 255 



landlords. 15 We wish to indicate strongly, and unequivocally, 
that we find exclusionary zoning practices by local govern- 
ments both offensive and unacceptable. 

Such zoning practices have also been prohibited since the 
July 1989 housing Policy Statement of the Ontario govern- 
ment: this document saw the creation of rooming, boarding, 
and lodging houses (RBLs) as key to affordable housing, and 
required that municipalities permit these forms of intensifica- 
tion "as-of-right" in all areas that meet certain criteria. ^6 (The 
principle of as-of-right zoning eliminates the right to consider 
neighbourhood preferences, the criterion traditionally used by 
municipalities to determine where accessory apartments and 
RBLs would be permitted.) 

We support without qualification the principle of as-of- 
right zoning for both accessory apartments and RBLs.i^ We 
also endorse Ministry of Housing attempts to bring municipali- 
ties in line with the government's housing Policy Statement 
but fear current efforts may prove ineffective: 104 named 
municipalities were to have had official-plan and zoning 
changes required to implement the housing Policy Statement 
in place by August 1, 1991. No municipality met the deadline 
with respect to accessory apartments and RBLs; none has 
made the changes to date.i^ 

It is now time for the Ontario government to take further 
action. 

RECOMMENDATION 127: That the Ministry of Housing 
amend the Planning Act to make accessory apartments 
and rooming, boarding, and lodging houses an as-of-right 
use in all zones where residential uses are permitted. 

As-of-right zoning will inevitably spread accessory apartments 
and RBLs more widely around a community. We have 
received requests that we recommend a minimum spatial dis- 
tribution of such accommodation; but formal action may be 
unnecessary as the barriers to a more even distribution in the 



1 5 If accessory apartments are 
illegal, they formally do not 
exist; thus, they are typically 
not covered under LTA. If a 
landlord wishes to evict a 
tenant, he may notify the 
municipality, which declares 
the apartment "illegal" and 
shuts it down, thereby evict- 
ing the tenant. The landlord 
is then free to rent to a new 
tenant. Some illegal apart- 
ments are in serious violation 
of the Fire or Building codes, 
but tenants fear to complain 
because they have no securi- 
ty of tenure. 

16 The three criteria are: need, 
sufficient services, and capac- 
ity of site. 

Prior to 1989, RBLs were 
typically either prohibited 
outright or restricted to spe- 
cific sites by municipal zon- 
ing by-laws. If permitted, the 
accommodation was usually 
restricted to a limited number 
of unrelated persons. 

Bill 128, passed in 1989, 
prohibited discrimination 
based on family status or 
relationship in zoning by- 
laws. Since Bill 128, munici- 
palities have experienced dif- 
ficulty in defining RBLs with- 
out reference to family status. 

17 Municipal licensing and by- 
law activity cannot become a 
"back door" to exclusionary 
zoning through the imposi- 
tion of unreasonably high 
standards. Hence, the con- 
straints on municipal authori- 
ty to license and set stan- 
dards through by-laws, as set 
out in Part III, are even more 
important if as-of-right zon- 
ing is adopted. 

18 At least one recent case 
before the Ontario Municipal 
Board (concerning student 



256 Related Issues 



accommodation in Guelph) 
suggests that the OMB may 
not have given sufficient 
weight to the Policy State- 
ment with respect to rooming 
houses. 



community are removed. We see no need for such restrictions 
with respect to accessory apartments, but, depending on how 
RBLs are ultimately defined by the Ministry of Housing, some 
measures to limit undue geographic concentration of RBLs 
may be appropriate. 

It may also be desirable for the Ministry of Housing to limit 
concentration on single premises (for example, one accessory 
apartment per site). The Planning Act will have to be amend- 
ed to give the minister of Municipal Affairs authority to estab- 
lish, by regulation, physical standards for accessory apart- 
ments and RBLs: .the intent will be to ensure adequate stan- 
dards but to prevent standards so high as to exclude such 
uses. 



I 



Supportive Housing in Ontario 257 



APPENDIX: 

Supportive Housing in Ontario 



MINISTRY OF HOUSING 

The Ministry of Housing's contribution to supportive liousing 
is largely in the form of operating and subsidy payments to 
housing providers. These payments are intended to bridge the 
gap between the actual cost of providing the housing^ and the 
rents paid. 2 The Ministry of Housing also provides develop- 
ment loans for non-profit housing projects and, under the 
Homes Now program, some mortgage financing. 

Table 9 contains information on the four current Ministry of 
Housing programs/initiatives related to non-profit housing. 

It is difficult to determine the expenditures (operating and 
subsidy) for the supportive-housing units built as a subset of 
all non-profit housing. The Ministry of Housing data base does 
not use the definition of supportive-housing clients used by 
the service-providing ministries. It has figures only for a cate- 
gory it calls "client type: special."^ Units specially modified for 
seniors are not counted.'^ The Ministry of Housing estimates 
that approximately 16 percent of all post- 1986 non-profit 
housing units'' are supportive housing, according to their defi- 
nition, which excludes seniors. Under the four indicated hous- 
ing programs, as of June 1991, there were a total of 7,190 
units of supportive housing in Ontario; these include 1,219 
units for persons with psychiatric disabilities and 1,021 units 
for persons with developmental disabilities. 

Table 10 contains data on the Ministry of Housing estimated 
annual operating expenditures on post-1986 supportive 
housing.6 They indicate a significant increase in the recent past, 
with total expenditures reaching some $35.6 million in 1990. 



1 This includes mortgage pay- 
ments, management, and 
other operating expenses. 

2 Both subsidized and "market" 
rents. Both involve subsidies, 
though the latter is set closer 
to what should be the hypo- 
thetical market rent for the 
particular unit, and thus has a 
smaller subsidy. 

3 "Special" includes "develop- 
mentally, physically, and psy- 
chiatrically handicapped indi- 
viduals, homeless, victims of 
family violence, low-income 
single persons." 

4 This is in contrast to MCSS 
and CHSSD, who fund sup- 
portive-housing support ser- 
vices to seniors. 

5 Housing units are "bed 
counts" rather than a count of 
living units, since the projects 
built include group homes 
and hostels. 

6 These figures omit some pro- 
jects that have not yet submit- 
ted a budget to the ministry, 
as well as those recently 
occupied or not yet complete. 
Thus, the figures are approxi- 
mate only. They are also 
probably an underestimate of 
true expenditures, as most 
projects would include 
seniors' units, which are not 
counted. 



258 Related Issues 

Table 9 

Ministry of Housing Expenditures on Non-Profit Housing 



Project 



($ in Millions) 

Operational 

Subsidy 

Payments Capital 

(1991-92) Payments 



Loans for 

Project 

Development 



Federal/Provincial 
(F/P) 

P-3000 

P-3600 

Homes Now 



$264.61 

$29.9 
$15.8 
$91.1 



$6.63 



$2.92 



1 Includes federal contribution 

2 The 1990-91 figure was $0.84 

3 The 1 990-91 figure was $1 7.3 

4 This is defined in Ontario as "unable to afford the market rents in the project without paying more than 25 percent of income for rent." 

5 The capital cost per unit must be consistent with the maximum unit price (MUP) guidelines established by Canada Mortgage and Housing 

Corporation. The current MUP in Toronto is $84,000 for hostel accommodation and $107,000 for studio or bachelor apartments. 

6 The federal and provincial governments share sixty-forty the subsidy cost for households that cannot afford to pay more than 30 percent 

of their income for rent. The province subsidizes 100 percent of other rent-geared-to-income units as well as the market rent units. 

7 See note 1 1 . 

8 These are defined as not able to afford more than 25 percent of household income for housing. 

Program Descriptions: 

Federal/Provincial Non-Profit Housing Program (F/P) 

(a) This is a federal/provincial initiative to help non-profit- housing agencies and municipalities produce housing for persons 
with low-to-moderate incomes. 

(b) At least 40 percent of the units must be allocated as "rent-geared-to-lncome"'' (RGI), with the remainder available to 
those with "eligible household incomes" and/or those who can pay the market rents. 



Supportive Housing in Ontario 259 



(c) Capital financing is arranged tlirougli private-sector lending institutions.^ All non-profit units receive operating subsidies 
of the difference between the actual cost of providing the housing and the rents paid by tenants.^ 

Special Housing Initiative 3,000 (P-3000) 

(a) These projects are primarily directed at the most disadvantaged members of society: homeless persons; battered spous- 
es; adults with physical, developmental, and/or psychiatric disabilities; and low-income single persons. Mixed-use pro- 
jects may include seniors and families. There must be a minimum of 40 percent rent-geared-to-income units. 

(b) Both operating and subsidy costs are funded 100 percent by the Ontario government. Capital costs are arranged with 
private- sector lending institutions as above.'' 

P-3600 

(a) This initiative was designed to create 3,600 units of mostly "regular," non-profit housing. 

Homes Now 

(a) The aim of this initiative is the creation of 30,000 affordable rental units over several years. About 70 percent of the units 
will be for "rent-geared-to-income" tenants.^ 

(b) The program provides funding for the purchase or lease and renovation of existing properties, and new construction. 

(c) The Ministry of Housing will pay $300 million annually to subsidize rents and operational costs, with no federal contribu- 
tion. 

(d) Canada Pension Plan funds totalling $3 billion are being used as a source of low-cost mortgage financing for these pro- 
jects. Other capital is earmarked for the renovation of leased properties. The capital cost per unit for new and acquired 
projects must be consistent with the maximum unit price set by the Ministry of Housing. (In other projects the MUP is 
set by CMHC). 



Table 10 

Ministry of Housing Operating/Subsidy Expenditures on Post-1986 Supportive Housing 

($ In millions) 

Program 1988 1989 1990 

F/P1 $4.3 $9.8 ' $15.0 

P-3000 $2.1 $11.4 $16.9 

P-3600 n/a $0.3 $1.2 

Homes Now n/a $0.2 $2.5 

1 Includes federal contribution. 



260 Related Issues 

Table 11 

MCSS Spending on Supportive Housing and Total Units, by Program 



Program 


Total 
Program 
Spending 


1991 
($in Millions) 
Total 
Supportive- 
Housing 
Spending 




Total 
Units 
(1990) 


Attendant Care 


$45.1 


$8.4 


382 




Home-Support Services' 
for the Elderly 


$58.2 


$3.8 


1,020 




Halfway Homes and 
Alcohol- and Drug- 
Recovery Homes 


$6.7 


$1.0 


181 




Family Violence 


$41.8 


$4.3 


545 




Ministry Purchase of 
Counselling 


— 


$11.3 


2,151 




Adult Group Homes 


— 


$11.0 


510 




Supported Independent 
Living 


— 


$5.7 


270 




Community Residential 
Alternatives 
(program under development) 


" 


" 


" 





i 



Program Descriptions 

Attendant Care 

(a) Support Services Living Units (SSLUs) provide services to persons with physi- 
cal disabilities living in ministry- sponsored living arrangements or integrated 
apartments (not necessarily non-profit) with on site staff available on a twenty- 
four-hour basis. Services include personal care, mobility, dressing, meal prepa- 
ration, cleaning, shopping, and laundry. 

As of April 1 991 , there were 909 Support-Service L iving Units serving 
960 persons. The funds expended under this program were $29.7 mil- 
lion. 



Supportive Housing in Ontario 261 



(b)Attendant Care Outreach Program provides services to persons with physical 
disabilities living outside designated housing units. The services available are 
similar to those services provided in SSLUs. 

As of April 1 991 , there were 1 ,332 persons receiving Attendant Care Out- 
reach; funds expended under this program were $13.1 million. In addition $2.2 
million was spent on attendant care for brain-damaged persons. 

Home Support Services for the Elderly 

(a)This program provides a range of community support services to enable elderly 
persons and persons with physical disabilities to remain living in their own 
homes. Services include meals, transportation, home maintenance, care.-giver 
relief, and home help. 

As of August 1990, there were 469 home-support agencies operat- 
ing 1,487 programs (e.g., meals, transportation, etc.). The number of 
persons served is not known. 

Halfway Houses and Alcohol- and Drug-Recovery Homes 

(a)This program provides services to adult ex-offenders, substance abusers, and 

"socially disadvantaged" persons. Support services include individual and group 

counselling and vocational-rehabilitation services. 

Family Violence 

(a)This program provides support services in transitional housing for 
assaulted women and their children. 

Ministry Purchase of Counselling 

(a)This program offers a wide range of support services to low- income socially 
disadvantaged adults in a wide variety of housing types. 

Adult Group Homes 

(a)Support services are provided to adults with developmental disabilities in group 

homes. Group homes with 794 units are funded as part of the Multi-Year Plan, in 

addition to those funded under supportive housing. 

Supported Independent Living Program 

(a)Support services provided to adults with developmental disabilities to assist 
them to live independently. Services include supervision, life-skills training, and 
assistance with daily living. Services are not tied to the housing site; individuals 
or very small numbers of individuals are served at any one site, often in apart- 
ments. 
Approximately 665 units have been funded by the Multi-Year Plan since 1987. 

Community Residential Alternatives 

(a)This initiative was announced in 1989. It is designed to develop alternatives to 
institutional living for elderly persons who require daily-living supports but 
whose needs for nursing and professional support can be met satisfactorily on a 
visitation basis. 

As of 1990-91 , eleven projects have received operating funding and another 
fifteen projects are planned for 1991-92. 

By 1 995 funding is projected at $9 million for services to 1 ,051 units. 



262 Related Issues 



7 Again, owing to definitional 
discrepancies, this figure can- 
not be compared to the Min- 
istry of Housing expenditure. 

8 The term"'unit" refers to the 
number of people served. 

9 Once again, it is difficult to 
present precise information 
because the MoH definition 
of supportive housing does 
not match that used by MCSS 
or Ministry of Housing. The 
data presented include fund- 
ing for housing programs 
other than Ministry of Hous- 
ing non-profit housing pro- 
jects. 



THE MINISTRY OF COMMUNITY AND 
SOCIAL SERVICES AND THE COMMUNITY 
HEALTH AND SUPPORT SERVICES 
DIVISION 

Supportive housing is not a distinct program within MCSS and 
CHSSD. Rather, funding for support services to specific non- 
profit rental housing projects is committed by MCSS/CHSSD; 
the funds then flow through a number of MCSS or CHSSD 
programs (such as Attendant Care and Supported Indepen- 
dent Living (SIL) programs). 

MCSS expenditures for its supportive-housing initiatives for 
adults totalled approximately $46.5 million in 1991.^ In 1990, 
approximately $43 million was spent for support services for 
5,058 units^ in supportive housing. 

Table 1 1 details MCSS/CHSSD total program spending, total 
supportive-housing spending (for 1991), and total supportive 
housing units (1990). 



MINISTRY OF HEALTH 



MoH, through its Community Mental Health Services, has a 
number of housing programs, most funded jointly with the 
Ministry of Housing's non-profit-housing funding. Most, 
though not all, of the housing is targeted at persons with psy- 
chiatric disabilities. 9 

According to the ministry, the support programs and ser- 
vices may provide life-skills training, resource linking (i.e., 
case management), counselling, crisis assistance, and other 
support as required. 

The needs of residents range from twenty-four-hour-a-day 
support to weekly on-site visits plus on-call support and sup- 
port for residents in boarding homes and self-contained hous- 
ing units. These programs promote integration, stability, and 



Supportive Housing in Ontario 263 



consumer choice/needs for normalized living. 

The Community Mental Health Services Housing Programs 
in MoH currently fund 2,035 beds. The total operating budget 
for services in 1990-91 was $22.1 million. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

12 

Professional and Human 
Resources 




ost of this Report has been presented in the 
context of two interested parties: residents of 
rest homes (assisted by famihes and advo- 
cates), and operators (or owners/operators). 
There is, of course, a third group directly 
affected by the recommendations of this 
Commission: rest-home staff. 

The Commission has heard from individuals and groups of 
employees, and we also received written submissions from 
the major unions in the field. Employees' concerns centred on 
the low standards and low levels of care found in some rest 
homes, and on their own role in these settings: poor pay; 
often poor training and inadequate preparation for assuming 
supervisory and care-giving responsibilities; and ongoing ver- 
bal and, occasionally, physical abuse by residents. The 
requests, not surprisingly, were for upgrading of status and 
wage levels and, in effect, for the development of new institu- 
tions to care for vulnerable adults. 

The Commission is unable to accommodate the thrust of 
these requests. As we have indicated repeatedly, we do not 
intend to recommend the creation of more institutions for 
care-giving in Ontario. As community-based services are 
developed in future, they will replace many services at pre- 
sent provided in institutions. We recognize that the implica- 



264 



Professional and Human Resources 265 



tions for employees and their unionization are potentially pro- 
found, and it will be necessary for all affected parties, includ- 
ing government, to work together to minimize the adverse 
consequences of these changes. 

The Commission does recognize, however, that there is 
often a gap between employees' tasks and responsibilities, 
and their levels of compensation. As we have discussed earli- 
er, we advocate a reduction of the expectations placed on 
staff while fostering the growth of outside community ser- 
vices. 

We have also recommended that wage increases to low-paid 
staff in registered rest homes be added to the list of allowable 
expenses eligible for the "3 percent above-guideline" increases 
under rent control. This should encourage employers (at least at 
the upper end of the market) to increase pay levels, as it will be 
possible to pass on the costs. 

In this chapter, we wish to examine the implications of our 
general approach to a number of other issues related to 
staffing: we first comment on the training of rest-home staff; 
we then examine coverage of rest homes under the Hospital 
Labour Disputes Arbitration Act (HLDAA) and Workers' Com- 
pensation; and, finally, we discuss in some detail the role of 
medical personnel with respect to rest-home residents. 



1 Had we endorsed a role for 
operators and staff as com- 
prehensive-care providers, 
appropriately trained person- 
nel would have been neces- 
sary. 



The Staff in Rest Homes 



This section is briefer than some persons and groups might 
have desired, because we place only a limited emphasis on 
education and training for care-giving staff in rest homes. This 
downplaying follows directly from the modest expectations 
we wish to place on rest-home staff and our view of rest 
homes as residential settings with only limited care-giving 
responsibilities. ' 



266 Related Issues 



ASSISTING WITH MEDICATIONS 

One of the few areas in which training of staff is crucial is 
assisting residents with their medications. We assume the 
majority of rest-home residents are able and wish to adminis- 
ter their own medications; but, in some cases, assistance may 
be desired or needed. 

In Part III, we recommended that all staff assisting with 
medications must be "competent." One empirical indicator of 
competence might be attendance at short workshops on med- 
ications; we recommend that all staff involved in this area par- 
ticipate. We suggest community agencies, such as St. John's 
Ambulance, be invited to develop such courses where they 
do not already exist. 

RECOMMENDATION 128: That community agencies, such 
as St. John's Ambulance, be encouraged to develop and 
deliver short workshops on assisting with medications to 
be attended by staff of rest homes. 

Successful completion of such courses would be presumptive 
evidence of competence. The Commission does not wish to 
go beyond the criteria recommended: a higher standard 
would "professionalize" this service, an outcome we do not 
desire. 



TRAINING AND RESIDENTS' RIGHTS 

All persons potentially in a power relationship with resi- 
dents — including owners/operators and staff who do not nor- 
mally come into contact with residents — must become aware 
of the new relationships that will emerge in rest homes on 
implementation of the recommendations of this Report: a new 
set of priorities will stress residents' rights and autonomy. Staff 
must become informed about the residents' bill of rights and 



Professional and Human Resources 267 



its practical implications. They must also be aware of the new 
protections set out in Part III of this Report and the implica- 
tions of coverage under the Landlord Tenant Act (LTA). The 
new enforcement system and the Rest Homes Tribunal (RHT) 
must also be understood in terms of what is required, what is 
encouraged, and how individuals are protected against recrim- 
inations (in mandatory reporting of abuse, for example). 

The necessary information is not overly complex and can 
be acquired in a brief workshop (perhaps of no more than a 
day). Such workshops may be organized by community-based 
agencies or educational institutions, with significant input from 
consumer and advocacy groups and the industry trade associa- 
tion. We do not wish to mandate a province-wide curriculum; 
we deem it sufficient if equal time is provided to consumer 
groups (such as the Ontario Psychiatric Survivors' Alliance) 
and advocacy groups, on the one hand, and industry repre- 
sentation, on the other. There should also be ample time for 
discussion and questions. 

RECOMMENDATION 129: That operators and staff partici- 
pate in workshops to become familiar with the new rights- 
based protections in rest homes. 

Various outside professionals — from police officers to local 
physicians — must also be informed of the existence of the rest 
homes within their community, the services provided therein, 
and the rights and protections available to residents. 

RECOMMENDATION 130: That information about rest 
homes be made available to professionals when the 
mandatory registration of rest homes begins. 

Local hospitals (particularly their emergency departments), ambu- 
lance units, and police stations should have lists of area rest 
homes; hospital staff should be made aware of the distinction 
between these and high-care facilities, such as nursing homes. 



268 Related Issues 



2 For example, one Toronto- 
area institution has recently 
introduced a new educational 
program for the management 
of long-term-care systems; the 
greater need is for programs 
to assist individuals in decid- 
ing (and managing) their own 
long-term-care needs. One 
social-work program has 
recently refocused from prac- 
tice skills to measuring and 
testing, the apotheosis of 
client disempowerment. 



The law-enforcement and court systems should receive 
appropriate training with respect to abuse in rest-home set- 
tings and the implications of mandatory reporting. 

It will also be necessary for educational programs, particu- 
larly in the "helping professions," to refocus on a more resi- 
dent-centred approach to practice. Regrettably, some of the 
limited evidence we have seen suggests this is not always 
occurring. 2 



RETA 



NG STAFF 



Many operators have complained that it is difficult to secure 
and retain properly trained (and motivated) staff. In the retire- 
ment-home sector, we are satisfied with a standard market 
analysis: better pay should attract better-trained staff and 
reduce turnover; higher wages should in part be passed along 
to consumers through higher prices. The preferences of con- 
sumers and their readiness to pay should determine the quali- 
ty of staff in each home. 

The problems are more complex at the other end of the 
spectrum, where there is little room for operators to pass 
through increased costs to consumers. The responsibilities 
assumed by staff will be restricted by the ability to pay of 
low-income consumers; limited responsibilities, in turn, will 
necessitate only limited training, which will be reflected in rel- 
atively low wages. Although care in rest homes should not 
require a work force with very specialized credentials, we 
endorse efforts by operators to train staff in the understanding 
of areas such as aging and disability. Particularly as a substan- 
tial proportion of front-line staff seem to be women and racial 
minorities, any general training is likely to be advantageous in 
a broader social sense, as well. We support any upgrading 
programs for staff in rest homes and we urge participation. 

We recommend that local educational authorities be 
encouraged to develop short training courses suited to rest- 



Professional and Human Resources 269 



home workers. Such courses should be scheduled to accom- 
modate variable work shifts. 

RECOMMENDATION 131: That local educational authori- 
ties develop short training courses with flexible schedules 
for staff in rest homes. 



3 This assumes the acquired 
training is transferable, and 
not peculiar to the need of 
the specific employer. 



We do not, however, see anything that would warrant specific 
training subsidies directed only at the rest-home sector: prob- 
lems of staff recruitment and retention are common through- 
out the low-wage sectors of the economy. 

As staff become more qualified, they are likely to ask for 
higher wages or quit for more lucrative employment else- 
where (for example, in a hospital). Some may become overly 
trained for the limited responsibilities demanded of them in 
rest homes. From a broader public perspective, it is quite 
desirable that people upgrade their skills and then seek 
appropriate employment elsewhere. Indeed, high voluntary 
turnover can be a positive sign in the labour market. 

From the perspective of individual employers, high 
turnover may be unfortunate but inevitable if they are unwill- 
ing or unable to pay higher wages to increasingly skilled 
staff. 3 At the same time, training new staff to work in a rest 
home does not involve much time, and most can be done on 
the job. 

If employers desire a more stable work force, there may be 
opportunity to pay higher wages through organizational 
restructuring or lowering other costs. For example, better-paid 
staff may have less absenteeism, which might lower the fre- 
quency of costlier agency replacements (if these are used). 
High wages and good staff relations may also enhance the 
home's reputation in the market, leading to increased occu- 
pancy and higher profits. Obviously, there are many scenarios 
with differing outcomes and implications, but the general con- 
clusion can only be that employers of low-paid, modestly 
trairted staff must expect high turnover. 



270 Related Issues 



Industrial Relations 



HOSPITAL LABOUR DISPUTES 
ARBITRATION ACT 

The Hospital Labour Disputes Arbitration Act (HLDAA) applies 
to "hospitals" as defined in paragraph (l)(l)(a) of the Act, 
which refers to "any hospital . . . nursing home or other institu- 
tion operated for the observation, care or treatment of persons 
... and includes a home for the aged." vVlthough labour rela- 
tions in hospitals are governed primarily by the Ontario 
Labour Relations Act (OLRA), HLDAA provides for compulsory 
binding arbitration in the absence of a negotiated settlement. 

HLDAA comes into force when hospital employers and 
unionized workers are unable to effect a collective agreement. 
The union will typically apply to the minister of Labour for 
binding arbitration under HLDAA, and the minister must 
decide whether the workplace constitutes a "hospital" within 
the meaning of the Act. 

HLDAA coverage has been generally held as advantageous 
to the unions and employees, as binding arbitration often gen- 
erates more favourable settlements than might emerge from a 
strike. 

In part because of the largely unskilled work force, union- 
ization of rest-home staff has been limited. However, those 
rest homes that employ unionized workers and unions them- 
selves have complained to the Commission that HLDAA is 
applied inconsistently to rest homes: seemingly similar 
premises are accorded different treatment when HLDAA is 
requested. Indeed, decisions as to coverage under HLDAA are 
made on an individual basis, dependent on the facts of the 
case. 

As rest homes become more akin to traditional accommo- 



Professional and Human Resources 271 



dation-only premises with care services delivered from the 
community, it is probable that HLDAA will no longer apply. 
(This may be seen as an advantage to operators.) We do not 
deem it appropriate to make a specific recommendation about 
coverage of rest homes under HLDAA as the issue is decided 
on the facts at a given time, and over time we assume the 
OLRA will increasingly apply in these settings. 

The move to community-based services, however, does 
create a problem. Care may be essential to the resident, but 
HLDAA would not apply, as a community-based care-giving 
agency would not meet the definition of "hospital" as set out 
in HLDAA. Agency-based community staff or employees of 
transfer-payment agencies — unlike hospital employees — are 
free to strike, to the detriment of vulnerable and dependent 
residents. 

It is the view of this Commission that it is the essential 
nature of the service, not the designation of the building, that 
should determine whether staff may legally strike. Indeed, the 
entire HLDAA may be outdated and should be replaced by 
generic legislation dealing with essential care services, howev- 
er and wherever delivered. In this way, vulnerable popula- 
tions dependent on care would be protected, whether the 
care was delivered by an institution or by a community-based 
service agency. 

RECOMMENDATION 132: That the Ministry of Labour re- 
examine its definition of "hospital" under the Hospital 
Labour Disputes Arbitration ^c? with a view to replacing it 
with more general legislation dealing with essential care 
services, however and wherever delivered. 



WORKERS' COM PENSATI ON 

A second issue that affects the industrial-relations environment in 
rest' homes is the rating for purposes of Workers' Compensation. 



272 Related Issues 



4 NRG 240 comprises industries 
in two Standard Industrial 
Classification (SIC) codes: SIC 
8621 — Homes for Personal 
and Nursing Care — are "estab- 
lishments primarily engaged 
in providing personal care on 
a continuing basis with medi- 
cal and professional supervi- 
sion ... of residents with rela- 
tively stabilized chronic dis- 
ease ..." SIC 8622 — Homes 
for Physically Handicapped 
and/or Disabled — are "estab- 
lishments primarily engaged 
in providing for the care of 
residents who are ambulant 

. . . who have decreased physi- 
cal capacity and who require 
supervision and assistance 
with activities of daily living." 

5 The estimated assessment rate 
for NRG 241 is $1.53, reflect- 
ing the fact that hospitals 
have a much more favourable 
accident (cost) history than do 
nursing homes or homes for 
the aged. 



There are 109 rate groups under Schedule 1 of the Work- 
ers' Compensation Act; each covered industry is placed in one 
of these. The assessment rate for each group is determined 
empirically and individually, based in part on the rate group's 
claims-cost experience during the prior three years. Rest and 
retirement homes are included in rate group 882, which also 
includes hospitals, nursing homes, and homes for the aged. 
The rate group is a relatively large one and covers a diversity 
of accident experience. 

The Workers' Compensation Board (WCB) is currently 
reviewing the entire rate structure and has proposed a new 
system of rate groups (NRGs), to become operative January 1, 
1993. Under this proposal, rate group 882 would be split into 
several new rate groups: "hospitals" would form a group on 
their own (NRG 241), and "homes for the aged and physically 
handicapped" would be in a different group (NRG 240).'' 

The current WCB assessment (based on 1990 figures) for 
rate group 882 is $1.97 per $100; a worker earning minimum 
wage, and working forty hours a week, fifty-two weeks a 
year, would have an annual assessment of $208.98. The esti- 
mated rate for NRG 240 is $3.86 per $100, which yields an 
annual assessment for the same worker of $409.47, nearly 
double the current figure. ^ 

NRG 240, as envisaged, does not distinguish clearly 
between high and low levels of care, and between premises 
that operate with and without ongoing medical and profes- 
sional supervision. The Ontario Long-Term Residential Care 
Association (OLTRCA) has argued that it is inappropriate to 
group institutions providing extended and nursing care with 
those that offer residential care only. 

The Commission concurs. It is our view that if rest homes 
are to offer residential care, they ought not be grouped, for 
WCB or any other purpose, with premises that provide high 
levels of nursing care. Indeed, combining rest homes and 
nursing homes for WCB purposes would run directly counter 
to the thrust of this Report. 



Professional and Human Resources 273 



We therefore recommend that the WCB separate proposed 
NRG 240 into premises that do and do not provide nursing 
care, and that registered rest homes be included in the latter 
grouping.*^ Within each rate group, assessments will continue 
to be based in part on claims-cost history. 

RECOMMENDATION 133: That the Workers' Compensa- 
tion Board consider dividing its proposed new rate group 
240 into two separate categories, distinguishing between 
premises that provide ongoing extended care and those 
that offer residential care (i.e., only limited nursing care). 
That registered rest homes be included in the latter group- 
ing for assessment purposes. 



The Medical Role 



6 The WCB has indicated a 
readiness to consider the suit- 
ability of separate rate 
groups, provided that two 
conditions are satisfied: the 
memberships of the groups 
must be clearly defined and 
distinguishable; and the 
group must have had 550 
lost-time injuries during the 
five-year period 1984-88. The 
first condition could be met 
by distinguishing between 
regulated and licensed nurs- 
ing homes and homes for the 
aged on the one hand, and 
registered rest homes on the 
other. The second condition 
is problematic, as data are 
not currently available. 

7 In chapter 6 we have 
expressed our concerns 
about potential conflict of 
interest if physicians own rest 
homes and serve as house 
doctor. 



The most interesting comment on the medical role with 
respect to rest-home residents came not from a doctor but 
from a public-sector lawyer, who wondered about the legal 
ramifications for any doctor who agreed to be a "house doc- 
tor." Many rest homes have a designated house doctor, who in 
general terms agrees to be available to residents. The pres- 
ence of a house doctor is often an effective marketing or 
advertising tool; however, the meaning and implications of 
such a relationship are ambiguous. 

The definition and/or responsibilities of the house doctor 
are nowhere described. In many cases, it merely means that a 
doctor will see residents if they are referred by the operators; 
but there is no formal commitment to do so. In some cases, 
the house doctor visits the rest home weekly. 

We do not know what the label of house doctor implies 
for the doctor, the owners/operators, the government, or the 
residents. 7 The role of the house doctor must be clarified, so 



274 Related Issues 



8 This information should also 
be provided as part of the 
information package that 
retirement homes may offer 
to prospective residents. It 
should also be given to every 
resident at the point of entry, 
on the public record, on-line, 
and in public libraries. 

9 The issue is a broad one. The 
Commission has received 
information from the Alterna- 
tive Funding Unit of MoH, 
Health Insurance Division, 
that operators of mobile X-ray 
services are seeking approval 
for new sites, including rest 
and retirement homes. As of 
mid-October 1991, requests 
were pending from thirty-one 
seniors' residences (including 
nursing homes). Some pro- 
posed weekly mobile X-ray 
service; others requested an 
annual chest X-ray. The rea- 
sons for the requests by the 
home operators included the 
age and frailty of residents, 
convenience, and cost savings 
(to the residents and opera- 
tors), as staff time or ambu- 
lances would not be needed 
for accompanied travel to 
hospitals. 

In the Commission's view, 
eligibility for this benefit, like 
home visits, should be on the 
same basis as for a person in 
a private residence. Most resi- 
dents should be assisted to a 
clinic or hospital. Blanket 
referrals for all residents are 
fundamentally unacceptable, 
as cost savings to operators 
and residents translate into 
increased costs to OHIP. 



that both buyer and seller of rest-home services be fully 
aware of what that term does, and does not, entail. 

RECOMMENDATION 134: That the College of Physicians 
and Surgeons of Ontario develop a protocol describing the 
duties and responsibilities of "house doctors" in rest 
homes. 

This protocol would presumably include an agreement to see 
any and all residents expeditiously. It should also contain an 
obligation for the house doctor to inform residents that they 
have the right to see their own doctors rather than the house 
doctor. 

The name, address, and phone number of the house doc- 
tor, or notification that the home does not have a house doc- 
tor, should be clearly posted in every rest home.^ 

Informal conversations have identified a risk that any initia- 
tive to assign explicit obligations and responsibilities to house 
doctors may lead to the termination of this role. This is not 
necessarily an undesirable outcome. 

Residents of rest homes are entitled to home visits by 
physicians under the same circumstances as other members of 
the community. The general presumption is that most people 
will go to a doctor's office or hospital clinic. This same pre- 
sumption should operate with regard to residents of rest 
homes. 

It is convenient for rest-home residents to see a doctor at 
home; there are also significant economies of scale for a doc- 
tor to make several home visits in one setting. However, these 
factors should not override the broader public interest: home 
visits are more costly to OHIP than are office visits. Physi- 
cians, as "gatekeepers" of the medical system, have an obliga- 
tion to ensure that home visits are reserved for those who 
need them. Regular home visits should not be provided as a 
matter of course and convenience merely because residents 
live in a particular setting.^ 



Professional and Human Resources 275 



The Commission is also concerned about descriptions 
given to us of assembly-line medical care. In one retirement 
home, we observed the elderly residents being brought from 
their rooms and lined up in the lobby, because this was the 
house doctor's day for visiting. The queue seemed more 
appropriate to a food bank than to frail seniors apparently 
about to receive quality medical care. 

We recommend that the Ministry of Health (MoH) under- 
take a thorough investigation into the quality of medical care 
delivered by doctors in rest homes. lo We also recommend that 
OHIP monitor and investigate billing practices of doctors who 
regularly claim for multiple and sequential home visits in rest 
homes. 11 

RECOMMENDATION 135: That the Ministry of Health 
investigate the billing practices and quality of medical care 
delivered in rest homes by those physicians who regularly 
claim for multiple and sequential home visits in rest 
homes. 



10 The mandate of the inquiry 
could be broadened to 
encompass all congregate liv- 
ing settings for vulnerable 
adults. 

1 1 OHIP has an audit system for 
gross billing; they may ques- 
tion a doctor who claims for 
a large number of patients 
seen at one location. The 
medical reason for the visit 
could be requested as well as 
documentation of what was 
done (i.e., each patient must 
have a medical chart). In 
cases of inappropriate billing, 
OHIP can recover the money 
paid. Many comments to the 
Commission, particularly by 
persons with psychiatric his- 
tories, question the effective- 
ness of these audits. 



At present, there is a special-visit ("house-call") fee paid by 
OHIP to a doctor to offset travel time, etc., in addition to the 
regular fee for the examination. For each additional person 
seen in the same location, there is a reduced special-visit fee. 
On the face of it, we do not see the need for such additional 
special- visit fees, i.e., the premium for travel time need not be 
repeated. 

RECOMMENDATION 136: That the Ontario Health Insur- 
ance Plan consider paying the special-visit fee only once 
for multiple home visits in one physical location. 



In some cases, however, suitable mechanisms do not exist to 
assist patients to get to physicians' offices or hospital clinics; 
as well, some residents who are truly immobile do not receive 
needed in-home medical care. 



276 Related Issues 



12 Rest-home operators should 
not be compensated, on a per 
diem basis, to provide unde- 
fined care services, which 
might include assistance to 
attend a doctor's appointment. 
On the other hand, where 
alternative community 
resources are not readily 
accessible, it may be efficient 
to compensate operators, on a 
fee-for-service basis, for trans- 
portation. 



It is necessary to build on existing community systems that 
assist vulnerable adults to travel in the community. 12 Special- 
purpose transportation vehicles, for example, or community 
resource workers can help people attend physicians' offices or 
dental appointments or any other needed service in the com- 
munity. 

To ensure that adequate in-home care is provided to those 
who are truly immobile is more difficult, yet the issue is cru- 
cial. If current pressure on acute- and chronic-care hospital 
beds is to be eased, medical care must be delivered to people 
in the community. For some, this care must be provided in 
their homes. 

Some physicians appear reluctant or unwilling to make 
home visits, even to those who are unable to attend clinics; 
yet the right of people with severely limited mobility to ade- 
quate medical care is fundamental to the concept of universal 
access that underlies our medicare system. 

The public interest requires that medical care be available 
in the community and, when necessary, at home, and we call 
on the government to ensure that this interest is served. As 
long-term-care reform develops, community-based and -deliv- 
ered medical services must be widely and readily available. 

We also recommend that MoH develop measures to ensure 
that persons unable to attend medical premises receive quality 
medical care at home, whether they are in the community or 
in rest homes. 



RECOMMENDATION 137: That the Ministry of Health 
develop measures to ensure that persons who are unable 
to attend medical premises are able to receive medical care 
in their homes, which includes rest homes. 



PRESCRIBING PRACTICES 



We have heard repeatedly of persons receiving the same med- 



Professional and Human Resources 277 



ications year after year, without reassessment. Prescribing 
physicians must take responsibility for the medications they 
prescribe; pharmacists must also have a professional role in 
this regard. 13 

Unless residents "doctor-shop"' and/or withhold informa- 
tion, it is the responsibility of the attending physician to 
ensure against contraindicated drugs, overmedication, inap- 
propriate medication, etc. Pharmacists' professional responsi- 
bilities include evaluating the suitability of medications pre- 
scribed, recognizing possible drug duplication and multiple 
prescribing, and notifying physicians if there are concerns. i"* 
Should several doctors be prescribing simultaneously, a per- 
son's pharmacist may be the only source of comprehensive 
information on medications consumed. i5 

Under OHIP, all vulnerable adults can have their medica- 
tion inventory reassessed at regular intervals. Once a year may 
be considered appropriate in many cases, but it can be done 
more frequently on request. Such reassessments reduce the 
likelihood that prescriptions will be added to previous auto- 
matically renewed prescriptions in a cumulative, expensive, 
and potentially dangerous manner. 



13 Operators have an obliga- 
tion — made explicit in the 
bill of rights — to ensure pre- 
scribed rules are followed, if 
they choose to assist with 
medications. 

14 Ontario College of Pharma- 
cists, Guidelines for the Prac- 
tice of Pharmacy, June 1989. 
The text notes some limita- 
tions on this responsibility. 

15 Though it is not formally in 
the Guidelines, pharmacists 
may refuse to fill a prescrip- 
tion if they feel it is not in 
the best interests of the 
patient. They would report 
such refusal to the College of 
Pharmacists and, perhaps, to 
the College of Physicians and 
Surgeons. 



RECOMMENDATION 138: That the Ministry of Health 
develop measures to improve the accountability of physi- 
cians with respect to the medications they prescribe to res- 
idents of rest homes. That the role and responsibilities of 
pharmacists in this area be clarified. 



In its examination of "accountability," MoH should also take 
steps to ensure that vulnerable adults dependent on large 
amounts of medication have access to regular and complete 
prescription reassessments. 

We also recommend that the MoH support resident initia- 
tives, such as the establishment of peer self-help groups, to 
lessen, dependence on medications. 



278 Related Issues 



16 We assume these initiatives 
would be undertaken in part- 
nership with consumer and 
advocacy groups, and not 
viewed as a problem 
amenable to a solely medical 
solution. 

17 We note a parallel here to 
recent measures in Quebec, 
which considered the use of 
coercion to fill vacant medical 
positions in outlying regions 
of the province. The physi- 
cians' association was given 
twenty months to solve the 
understaffing problem; if it 
failed to do so, a legislated 
solution would be imposed. 
(Montreal Gazette, August 29, 
1991) 



RECOMMENDATION 139: That the Ministry of Health 
financially support resident initiatives to lessen depen- 
dence on drugs and medications. 

Far too many cases have been reported to us of non-existent 
or inadequate medical care provided to residents of rest 
homes. It is the right and the responsibility of the government 
of Ontario to make meaningful the right to health care in this 
province. The Commission is aware that if it becomes neces- 
sary for government to intervene directly, such action vsi'xW 
potentially infringe upon the self-governance of the medical 
profession and the entrepreneurial rights of individual physi- 
cians. We make these recommendations advisedly. 

The College of Physicians and Surgeons of Ontario, acting 
under the authority of the Health Disciplines Act, has the 
responsibility "to serve and protect the public." The Ontario 
Medical Association, as part of its framework agreement with 
the government of Ontario, committed itself "to enhance the 
quality and effectiveness of medical care." We invite these 
bodies to co-operate with the government of Ontario to 
ensure that quality medical care is available to all residents of 
rest homes. 1^' 

In the final analysis, however, it is the obligation of the 
government of Ontario to ensure that the medical needs of 
residents are met. This responsibility cannot be privatized, i^ 

Professional autonomy and self-governance are, in our 
view, neither ends in themselves nor absolute concepts never 
to be touched. Rather they represent a particular organization- 
al arrangement through which the public interest is to be 
served. If this goal is not met, the arrangement must be ques- 
tioned. 

Our call for MoH to ensure that quality medical care is 
provided at home to those who cannot attend at clinics or 
physicians' offices has ramifications far beyond rest homes. It 
encompasses the future viability of community-based long- 
term care. If the self-governance arrangement for medical care 



Professional and Human Resources 279 



does not produce results congruent with the broadly defined 
public interest in this area, we feel the government of Ontario 
must give thought to an alternative approach that would de- 
emphasize professional autonomy and entrepreneurial free- 
dom in a monopoly context. 



18 Community (general) hospi- 
tals offer a comparable ser- 
vice; however, the form and 
content vary from setting to 
setting, as these facilities 
operate on a decentralized 
basis. 



Referrals and Placements to 
Unregulated Accommodation 

Each of the populations of interest to this Inquiry experiences 
unique problems in locating suitable housing. Those with psy- 
chiatric histories often obtain accommodation with the assis- 
tance of a hospital-discharge planner. Persons with develop- 
mental disabilities have adult protective service workers 
(APSWs) to assist them, but critical problems arise when they 
leave the child-welfare system. Seniors or their families seek- 
ing appropriate accommodation may use the local Placement 
Co-ordination Service (PCS), if one exists. 
We shall consider each group in turn. 

PERSONS WITH PSYCHIATRIC HISTORIES 



Each provincial (psychiatric) hospital is required to offer a dis- 
charge-planning service to oversee and implement appropri- 
ate services when patients are to be discharged. i« Primary 
among patients' needs is housing; unregulated rest-home 
accommodation comprises mucti of the housing available to 
this population group. 

Over the years, there have been no clear guidelines for 
discharge planners to follow. Some saw their mandate to be 
finding any housing, particularly for hard-to-serve clients, in 
tight" markets; others viewed their role as locating suitable 



280 Related Issues 



19 The blacklisting has to be 
done informally, as there 
might be legal repercussions 
from a systematic exclusion of 
certain residential settings 
without clear criteria and a 
formalized due process. 

20 The term "placement" is no 
longer officially used, though 
it still appears in common 
conversation. 

21 Discharge Planning: The Pro- 
cess, Final report of the Dis- 
charge Planning Committee, 
MoH 1991. 



housing. Ongoing lack of communication at times had unfor- 
tunate consequences: one planner might informally blacklisti9 
a particular rest home because of unacceptable conditions 
there; meanwhile another discharge planner, sometimes in the 
same hospital, would continue referrals to the home, unaware 
of any problems. Even the verbs describing planners' activities 
were ambiguous: were they "referring" or "recommending," 
which implies approval? Were they "informing about" — a 
more neutral term — or "placing, "-^o which presumes limited, if 
any, choice for clients? 

There has been recent activity among discharge planners 
to clarify their role. A small committee was formed by MoH to 
respond to issues raised during the Cedar Glen inquest; its 
work was subsequently extended to develop a discharge- 
planning protocol for use in "referring" patients to unregulat- 
ed accommodation. 

This committee based its work on an explicit statement of 
values that involved a commitment to community care as 
articulated in the Graham Report, and stressed the importance 
of self-determination, including "the right to make decisions 
that some might consider unusual or even bizarre. "21 

The committee of discharge planners was given the 
responsibility of developing standards for rest homes and of 
ensuring these are maintained. However, hospitals have no 
legal power to require any standards. We have noted earlier 
that standards without sanctions are merely voluntary guide- 
lines, and guidelines are all the discharge planners could pro- 
duce. Failure to comply with these guidelines might, after due 
warning, lead to the removal of a home from the recommend- 
ed list; yet in a tight housing market, both planners and resi- 
dents may have little choice but to accept the home, anyway. 
As well, planners would still be free to inform departing 
clients about non-approved housing. 

Many persons leaving hospitals actively seek the least-regulat- 
ed environment possible; for them the rest home is the accommo- 
dation of choice: little is demanded of them and their basic needs 



Professional and Human Resources 281 



are taken care of. This wish must be respected, and attempts by 
discharge planners to direct people to "approved" housing will 
likely produce "green-garbage-bag departures" by patients (volun- 
tary discharges from hospitals to desired but unapproved hous- 
ing). 

The Commission endorses the efforts of the discharge 
planners to identify "approved" housing in the community. 

RECOMMENDATION 140: That hospital discharge plan- 
ners be supported in their efforts to draw up criteria to 
identify "approved" or "recommended" housing in their 
communities. 

We also feel that communication and information among dis- 
charge planners must be shared more consistently and com- 
prehensively than in the past. With on-line information net- 
works widely available, data on every registered rest home 
can be instantaneously accessible to all discharge planners. 
We have also recommended that information on all penalties 
and sanctions imposed on operators of rest homes be in the 
on-line data base. 

RECOMMENDATION l4l: That discharge planners contin- 
ue to collect and share information on accommodation in 
the community; that discharge planners have all available 
information on rest homes on-line. 

We encourage discharge planners from different hospitals to 
meet on a regular basis to share information about local hous- 
ing conditions and to identify criteria that can be consistently 
applied in different communities. 

There are two difficult questions, however: should dis- 
charge planners be prevented from giving patients being dis- 
charged information on illegal or unregistered or bootleg 
premises? Should they be prevented from giving information 
on premises not on an approved list but operating legally? 



282 Related Issues 



22 The debate fits within our 
earlier discussion of whether 
inadequate housing is better 
than no housing. 



In some sense, the questions are moot, for it is difficult to 
prevent such information from being given. To deny the dis- 
charge planner the right to give full information about hous- 
ing supply — both good and bad — ^would infantilize the indi- 
vidual, narrow the range of choices available, and perhaps 
prevent housing from being secured. 

Nevertheless, it may be argued that discharge planners 
have an obligation not to give information about premises 
that are dangerous or harmful to the residents, i.e., rest homes 
that continue to operate in contravention of the law or with- 
out registration. 22 



RECOMMENDATION 142: That discharge planners only 
give information to departing patients about rest homes 
that are registered with the municipality. That discharge 
planners be free to give information on "unapproved" but 
legal rest homes, while identifying the causes preventing 
"approved" status. 

We also feel that whenever possible, discharge planners 
should personally visit any rest home not on the approved list 
that they may consider making referrals to, so full information 
can be provided to potential residents. 



PERSONS WITH 
DISABI LITI ES 



DEVELOPMENTAL 



We noted in chapter 2 that many adults with developmental 
disabilities have, in effect, two housing options if they do not 
reside with parents or relatives, in a group home, or in an 
integrated or independent living situation: they may reside in 
an unregulated rest home, or they can remain in a children's 
home. 

The problems experienced by rest-home residents have 
been discussed at some length. However, for persons with 



Professional and Human Resources 283 



developmental disabilities, there is even greater vulnerability. 
They are at particular risk of exploitation and abuse — verbal, 
physical, and sexual — from unscrupulous operators, staff, and 
other residents. 

The other housing option is a children's residence. At least 
120 adults are housed in these settings as of the February 
1991 APSW data collection. These facilities are not necessarily 
suited to adults. Given the practical difficulties of having two 
sets of rules within a single home, adults who remain in the 
children's setting will likely be subject to child-appropriate 
rules and practices. (Sexual expression and interaction, to take 
but one example, require very different parameters for chil- 
dren and for adults.) 

These settings are licensed by the Ministry of Community 
and Social Services (MCSS) as foster homes or other children's 
facilities, but there is no licensing or regulation for adult resi- 
dents. -^ The accommodation is thus "unregulated" for adults 
within the Inquiry's terms of reference. Many of the residents 
have a "unique and difficult social situation," with extremely 
difficult behaviours and psychological diagnoses, including 
tendencies to self-abuse, etc., which require substantial — and 
costly — care. These adults may remain in the children's set- 
tings for several years, until they obtain a place in an aduk- 
service residence, independent living arrangement, or other 
housing provided through the associations for community liv- 
ing: in some cases their needs may be too great even for most 
boarding homes. 

The cost of housing adults with developmental disabilities 
in children's settings has never appeared in the budgetary 
estimates of MCSS. The cost forms part of the ministry deficit 
at the end of the fiscal year, and thus the spending is never 
authorized in advance by the legislature. 2^ 

The amounts involved are substantial: for 1991-92, some 
$6 million will be spent and covered through the ministry 
deficit at year's end.-^ The Commission has been shown 
copies of budgets approved by MCSS for privately supplied 



23 Standards with respect to 
physical plant (Fire and 
Building codes) are often 
higher in children's facilities 
than in those for adults. Our 
concern is not with such 
standards but rather with 
standards of care and treat- 
ment. 

24 The ministry explains this 
process as Exceptional Cir- 
cumstance Reviews (ECRs), 
requested by Children's Aid 
Societies (CAS) as extended- 
care and maintenance agree- 
ments for Crown wards 
between the ages of eighteen 
and twenty-one. If there are 
additional eligible individuals 
for whom there was no bud- 
get approved, the CAS may 
apply to the ministry for 
additional funding. This will 
be given only when the num- 
ber of clients exceeds that 
originally agreed to in the 
service plan, or when the 
ministry has approved 
increases above the econom- 
ic adjustment for the resi- 
dences. 

25 Some $l-$2 million of this 
spending is formally fun- 
nelled through non-profit 
agencies to commercial oper- 
ators who deliver the actual 
service. In practice, a sub- 
stantial part of the funding is 
paid directly by the MCSS 
area offices to commercial 
operators, in contravention of 
the cost-sharing conditions of 
the Canada Assistance Plan, 
which preclude the use of 
commercial suppliers. Similar 
practices occur in a wide 
range of CAP-shared services. 



284 Related Issues 



services. In one case $370,000 had been approved for one 
commercial operator to supply care for one resident for one 
year beginning April 1990. 

We cannot comment directly on the propriety of the specif- 
ic amounts allocated to particular operators: the clients are 
hard to serve and may require twenty-four-hour supervision. 
We do, however, have two serious concerns. First, the spend- 
ing is not approved in advance through departmental esti- 
mates. In addition, the accommodation, particularly in the 
commercial sector, is unregulated for adults; therefore, 
accountability is limited and appropriate-quality care may not 
be delivered. 

RECOMMENDATION 143: That the Ministry of Communi- 
ty and Social Services clearly identify in advance, each 
year, the costs of providing accommodation for adults with 
developmental disabilities in children's facilities as part of 
the ministerial estimates. 

RECOMMENDATION 144: That the Ministry of Communi- 
ty and Social Services accelerate its plans to remove all 
adults with developmental disabilities from children's resi- 
dential accommodation; and that pending such removal, 
the ministry take steps to ensure that appropriate standards 
for adults and effective accountability mechanisms are in 
place in such residences. 



THE FRAIL ELDERLY 

Since 1970, MoH, under the Ministry of Health Act, has spon- 
sored local placement co-ordination services (PCS), whose 
primary purpose is finding long-term care for the elderly. 
Provincial funding is 100 percent. The system is decentralized, 
and the twenty-three programs do not cover the entire 
province. 



Professional and Human Resources 285 



The original mandate of these services was to set priori- 
ties for admission to local high-care institutions. In practice, 
PCSs disseminate information and offer some information 
counselling. Some PCSs actively define local priorities and 
influence placements in nursing homes, homes for the aged, 
and chronic-care hospitals. 

Some PCSs inform interested parties of local rest-home 
alternatives and explain what the homes do and do not 
offer. However, the information can be limited and even 
incorrect. A PCS may learn of a rest home by chance, by 
word of mouth, as a result of a complaint, or by other 
means; as well, it may never learn of the existence of some 
operations. 

The Commission received a number of submissions from 
individual PCSs. These endorsed the official position of their 
provincial association that rest and retirement homes should 
be incorporated into institutional long-term care. If this were 
to occur, the submissions argue, admissions would be made 
only through service co-ordination agencies (SCAs), the 
gatekeepers of the institutional long-term-care system. Only 
persons requiring residential-level care would be referred to 
rest homes. 26 

The Commission is unable to endorse this recommenda- 
tion. We see the rest home to be outside the institutional 
long-term-care system, as an alternative form of community 
residence. 



26 The PCS function is likely to 
be subsumed within that of 
the SCAs once the latter are 
fully operational. 

27 Mandatory registration will 
offer a complete listing of 
premises. We urge that stan- 
dardized information about 
services in retirement homes 
be available on-line to all 
PCSs and SCAs. 



RECOMMENDATION 145: That the role of local place- 
ment co-ordination services or service co-ordination 
agencies with respect to rest homes be solely one of pro- 
viding information. 



We endorse the information-provider role of PCSs or SCAs 
and encourage them to provide the fullest possible informa- 
tion^^costs, prices, and price history, and other relevant 
data — about rest and retirement homes. ^^ 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 

13 

Provincial-Municipa 
Issues 



A number of recommendations in this Report will 
have a significant impact on municipalities and 
their relationship with the government of Ontario. 
The most important of these recommendations 
are the phasing-out of domiciliary hostels; munic- 
ipal registration of rest homes; and greater 
accountability with respect to local inspection and enforce- 
ment of fire, health, and building construction and occupancy 
standards. 

Municipalities across the province have expressed concern 
lest this Commission impose on them added responsibilities 
without commensurate funding. With the decline in economic 
activity in Ontario, social-assistance claims and costs have 
risen dramatically. Municipalities feel they are unable to bear 
the rapidly increasing burdens — in particular, the 20 percent 
local share of General Welfare Assistance (GWA) — given their 
fixed or shrinking local property-tax bases. 

The federal government's unilateral decision to impose a 
ceiling on its Canada Assistance Plan (CAP) contributions and 
to reduce its overall involvement in the social field has led to 
greatly increased financial pressure on lower levels of govern- 
ment. The comment is regularly made that the federal deficit 
is being fought on the backs of the provinces and, in turn, the 



286 



Provincial-Municipal Issues 287 



municipalities, who are being given added burdens without 
added resources to carry them properly. The Commission has 
seen the data and endorses the legitimacy of these claims. 

Many municipalities have also argued that the distribution 
of people requiring domiciliary-hostel accommodation across 
Ontario unfairly penalizes some communities. Rest homes, 
including hostels, often locate where land costs are low, even 
though residents may come from adjoining or even distant 
locations. The communities and neighbourhoods in which the 
provincial psychiatric hospitals are located have traditionally 
carried a disproportionate burden for those discharged. (At 
the same time, of course, rest homes contribute to local 
economies by paying local taxes and providing employment, 
particularly for low-skilled workers.) 

Municipalities' grievances must be resolved in a broader 
context than that of rest homes. We are aware that the historic 
division of responsibilities, indeed the entire provincial-munic- 
ipal relationship, is being re-examined through the Provincial- 
Municipal Social Services Review (PMSSR) and in broader 
contexts, as well. These are the appropriate venues in which 
to argue the disparities of responsibility and resources. We do 
not wish to put forward recommendations that will make 
more difficult any future rationalization of provincial and 
municipal roles and responsibilities; however, neither do we 
wish to leave unaddressed the concerns expressed by munici- 
pal governments. 

We believe that municipalities should continue to exercise 
their current responsibilities to inspect and enforce fire and 
building standards. These are areas of traditional local exper- 
tise. A call for provincial funding of inspection and enforce- 
ment costs in rest homes, for example, would have implica- 
tions far beyond this Report and could not be justified for rest 
homes alone. 



288 Related Issues 



1 Recommendation 242 of 
Transitions (p. 483) stated: 
"Municipalities should be 
required to include a catego- 
ry for all boarding homes in 
their by-laws, to regulate 
such accommodation with 
respect to physical safety and 
public health standards, and 
then to enforce such bylaws." 

2 We have previously noted the 
possible limitation of such 
by-laws imposed by the Fire 
Marshals Act znd the Build- 
ing Code Act. 

3 Recommendation 22 of 
PMSSR states that municipali- 
ties should be given authority 
to regulate, license, and 
inspect rest homes if they 
choose to do so. {Report of 
the Provincial-Municipal 
Social Services Revietv, pre- 
pared for MCSS, Queen's 
Printer for Ontario, Toronto, 
1990, p. 11 1-1 12) 

The position of the Associ- 
ation of Municipalities of 
Ontario (AMO), as set out in 
their submission to this Com- 
mission, is that the PMSSR 
recommendation "should 
exclude 'regulation' on the 
basis that provincial regula- 
tions are necessary to estab- 
lish standards for personal 
care across the province and 
therefore regulation should 
be a provincial responsibility. 
The association agreed the 
municipalities could then 
enforce the regulations." (p. 3) 



REST-HOME BY-LAWS 

Many presentations to the Commission have urged that 
municipalities be required to adopt local by-laws dealing with 
matters of public health and safety in rest homes. ^ Some have 
suggested that the province draft a model by-law, which 
could be made available to municipalities. 

"We have considered existing and proposed provincial pub- 
lic health, fire-safety, and construction standards. In each case 
we have called for the identification of a category or cate- 
gories of coverage appropriate to rest homes. If these recom- 
mendations are adopted, a clear provincial norm will exist in 
each of these areas; municipalities will have no role in setting 
these standards. (Municipalities may, of course, continue to 
set property standards for all local buildings to control their 
use and occupancy.)- 

We also wish to comment on those municipalities that 
attempt to regulate standards of care through local by-laws. 
We have noted the prevalent legal opinion that, with the sole 
exception of Windsor's, those aspects of such by-laws that 
relate to care are probably illegal. Some submissions have 
requested that we recommend the "legalization" of such by- 
laws, that we call for specific municipal authority to regulate 
the standards of care in rest homes. 3 For the reasons indicated 
earlier, we must deny this request, and cannot recommend 
that the province pass the necessary enabling legislation. 



DOMICILIARY HOSTELS 

We agree with the common municipal viewpoint that most 
residents in domiciliary hostels would receive social assistance 
under the provincial GAINS(D) program were they not in hos- 
tels. There is no discernible justification for them suddenly to 
become municipal GWA clients when they enter a hostel. We 
endorse the position that in any restructuring of social assis- 



Provincial-Municipal Issues 289 



tance between the province and the municipalities, responsi- 
bihty for funding the domicihary-hostel system should be 
lodged with the jurisdiction generally responsible for assisting 
the client groups being served. "* 

RECOMMENDATION 146: That in any provincial-munici- 
pal restructuring, the level of government responsible for 
providing social assistance to a person should not alter by 
virtue of that person's residence in a hostel. 

Our call to terminate the domiciliary-hostel system can repre- 
sent a substantial saving for participating municipalities: their 
current 20 percent share of hostel costs could be eliminated 
entirely. We have also suggested that additional provincial 
funding could be made available to those municipalities who 
do not currently participate in the hostel system for the devel- 
opment of more services. 

The Commission has been asked to recommend mandatory 
municipal participation in the domiciliary-hostel system; how- 
ever, we are unable to do so. First, this would be operationally 
difficult without extensive direct provincial activity. More fun- 
damentally, the Commission is unwilling to require expansion 
of the domiciliary-hostel program at the very time we recom- 
mend that the system be phased out in favour of portable ser- 
vice delivery. The many problems with domiciliary hostels that 
we have identified work against the expansion of the system. 
Indeed, those communities without domiciliary-hostel con- 
tracts are perhaps even in a favoured position for the develop- 
ment of portable services and individualized funding, as they 
have no structures and political interests to defend the status 
quo. 5 

One municipality has recently withdrawn from the domicil- 
iary-hostel system and others are contemplating similar action. 
Abandoning the program has led to hardship for affected resi- 
dents, as the monies available for their care and accommoda- 
tion have dropped dramatically and rapidly. Although the 



4 We are not referring here to 
clients of the federal govern- 
ment or other agencies. We 
mean only that a client who 
is a Family Benefits responsi- 
bility under other circum- 
stances should not suddenly 
fall under GWA when enter- 
ing a hostel. 

5 As individualized funding 
and portable community ser- 
vices become more 
widespread, money will fol- 
low individuals; it will 
become irrelevant where 
individuals reside as the dis- 
tinction between domiciliary- 
hostel and non-domiciliary- 
hostel communities vanishes. 



290 Related Issues 



Commission appreciates that municipalities are experiencing 
great financial pressure because of the rapid increase in GWA 
claimants, we regret that they are attempting to control expen- 
ditures by cutting back discretionary allocations to the most 
vulnerable members of the community. If municipal spending 
is to be cut back, the burden should be borne by those most 
able to do so, not by those least able to protest. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 



The Last Word 



This Commission began with the premise that gov- 
ernment has an obligation to offer protection to 
vulnerable adults in rest, retirement, and boarding 
homes. There is too much evidence — impressionis- 
tic and case based at times, but ultimately com- 
pelling — that residents in these settings are daily at 
risk. Abuses — physical, verbal, sexual, and financial — occur 
with sufficient regularity and pattern that they cannot be dis- 
missed as isolated events or singular occurrences. 

The explicit goal of this Inquiry has been to suggest ways 
in which residents of rest homes can take control of their own 
lives — to decide, articulate, and act on their own needs, pref- 
erences, and wishes about how they live and with whom. 
Although it was a specific death that triggered the work of this 
Commission, our focus has been not on death, but on life — 
the quality of life of rest-home residents and how it can be 
improved. The problems we have observed and heard about, 
and their unacceptable outcomes, were rooted not in the 
errant behaviour of disturbed individuals but in the very struc- 
ture of the rest-home system. 

Resident empowerment is not a means to ensure a given 
set of outcomes or a particular quality of life for residents. 
Rather, empowerment is an end in itself: the right of residents 



291 



292 The Last Word 



to choose, and the means to act on their choices, are the 
goals of public intervention. 

The Commission began quite agnostically concerning the 
form, nature, and extent of the most appropriate intervention, 
but the necessity for some intervention was clear. Given that 
the mandate of the Commission was to examine "unregulated 
accommodation," there was, perhaps, a presumption that the 
solution lay in regulation. However, the central goal was 
empowerment and protection of vulnerable adults; regulation 
was simply one means to be considered. Perhaps there were 
other, more effective, approaches. 

In the early stages of the Inquiry, comprehensive regula- 
tion by government, like that of the nursing-home sector, was 
suggested as a model. Through the course of our consultation, 
it became clear there was a vast chasm between the nursing 
home as a day-to-day reality and as a conceptual system with- 
in which government funding and regulation could be used to 
attain public-policy goals. 

Many presenters were attracted by the theoretical protec- 
tions offered by nursing-home-type regulation, but woefully 
few could commend the effectiveness of such regulations or 
praise nursing homes as places to live in. The cost of the 
nursing-home system is high, and the quality of life often 
questionable. 

The Commission's analysis of regulation stressed the threat 
of sanctions as necessary to produce desired behaviours and 
outcomes. Without credible sanctions, comprehensive regula- 
tion is fuelled only by voluntary compliance, and there can be 
no secure source of volunteers. 

Indeed, we learned, relatively late in our research activity, 
that there has never been a single prosecution for violating 
the nursing-homes bill of rights. This one fact solidified our 
rejection of the comprehensive regulatory model. 

At a time when virtually every trend in the social and 
health services is to deinstitutionalization (non-institutionaliza- 
tion), and to delivery of services to people living in the com- 



The Last Word 293 



munity, it seemed anomalous to promote the development of 
a new system of low-care, government-funded and -regulated, 
private-sector institutions. When institutions, including nursing 
homes, are expected to be de-emphasized through long-term- 
care reform, it makes no sense to use scarce public funds to 
create a new set of care-giving institutions. To formally incor- 
porate into the system of long-term institutional care a new 
structure known as the "rest home," when the entire system 
itself is subject to fundamental restructuring, does not strike us 
as the proper way to proceed. 

The alternative to comprehensive regulation that we pro- 
mote in this Report speaks to the need for consumer empow- 
erment within the community. Rather than a system of com- 
prehensive regulatory intervention, we recommend that vul- 
nerable adults be assisted to make decisions over their own 
lives, whenever, wherever, and to the maximum extent possi- 
ble. 

But empowerment of vulnerable persons is an elusive 
goal. For some, empowerment will always be constrained by 
restricted personal capability; for most, an effective system of 
advocacy and support can extend autonomous action and 
decision-making far beyond previously accepted limits. 

We have devoted considerable attention in this Report to 
the goal of consumer/resident empowerment and involvement 
in decision-making. We have noted with approval the pending 
Advocacy Act, 1991, and we repeat our support of this initia- 
tive. 

In these final pages of the Report, we return to the impor- 
tance of community services. If these do not exist and are not 
developed rapidly, the approach put forward in this Inquiry 
will be jeopardized. The need for long-term community care 
and assistance to vulnerable adults is acute. The public-policy 
void that has allowed the creation of bootleg nursing homes 
and sleazy boarding homes cannot continue. Too many vul- 
nerable people are at severe risk. 

■ The option of community-based services is by far the pre- 



294 The Last Word 



1 It is to facilitate this transition 
that we particularly recom- 
mend that current spending 
on the domiciliary-hostel sys- 
tem be reallocated to more 
empowering community- 
based alternatives. 

2 It has been pointed out to 
the Commission that commu- 
nity-based delivery of a ser- 
vice does not guarantee its 
acceptability to users. We see 
extensive involvement of 
users in service design and 
delivery to be essential to 
obviate such difficulties. 



ferred approach from our perspective and that of virtually all 
residents we have met. But these services cannot be merely 
projected, planned or intended: they must be concrete com- 
munity services, in place and available to those who need 
them. A system that articulates and promotes community ser- 
vices but does not actually provide them is no better, and 
possibly worse, than the status quo. 

It is also our view that many community services need not 
be professionalized, "credentialized," and medicalized. For 
many post-psychiatric residents of rest homes, for example, 
the greatest comniunity-based needs are for peer counselling 
and support services. "Experts" are not wanted, trusted, or, in 
many cases, helpful. 

We do not know the full cost of comprehensive, community- 
based care, for no such system is in place. The transition from 
the status quo to a complete system of community care may 
well be more costly than the status quo, as elements of two sys- 
tems will, for a time, co-exist, perhaps uneasily, i A fully mature 
system of long-term community care may not cost less, but will 
certainly deliver more. 

We repeat our recommendation that the principles of com- 
munity care put forward by the present and previous govern- 
ments be endorsed and developed into concrete programs 
and services as a matter of great priority. We cannot empha- 
size too strongly the need for community-based services and 
care, particular programs actively involving peer-support sys- 
tems. 2 



I 



A PI LOT PROJECT 



Understandably, governments have traditionally been appre- 
hensive about the possible costs associated with a fully com- 
prehensive system of community-based services. The most 
common strategy has been to proceed incrementally, to phase 
in community services as resources permit. Although we sup- 



The Last Word 295 



port this general approach, we suggest that the government 
consider implementing one or more pilot projects, in which 
the development and implementation of relatively compre- 
hensive community-based services take place in designated 
communities. The outcomes of such projects should be for- 
mally monitored and evaluated. 

RECOMMENDATION 147: That the government consider 
implementing one or more pilot projects in which the 
development and implementation of relatively comprehen- 
sive community-based services will be accelerated in desig- 
nated communities. These pilot projects should stress resi- 
dent involvement in all stages of program design and 
delivery. That any such pilot program be formally evaluat- 
ed as to outcome. 



3 At the same time, Windsor's 
uniquely large rest homes 
may lead to solutions that 
would be inapplicable in 
other communities where the 
average size of rest home is 
smaller. Thus Windsor should 
not be the sole location for a 
pilot project. 

4 See above, chapter 4, con- 
cerning the Windsor by-law. 



We recommend that Windsor be considered as a pilot site, in 
part because we find the current structure of rest homes in 
that community so disconcerting. As we have indicated earlier, 
the rest-home industry in Windsor is dominated by large 
physical premises: one home has some 450 beds and several 
others have more than 100 residents each. 3 

Even with the best will possible, structures of this magni- 
tude cannot impersonate community living. Many residents 
have been "trans-institutionalized" from the provincial psychi- 
atric hospital to the Windsor rest homes: deinstitutionaliza- 
tion — from an institution to the community — has never 
occurred. 

We understand and commend the efforts of the Windsor 
Social Services Department to protect rest-home residents 
through active enforcement of that city's by-law;^ moreover, 
we do not imply any improper motive on the part of rest- 
home owners or operators. What we find unacceptable are 
the large physical premises themselves, institutions built on 
the- hospital model, with individual rooms off long corridors 
containing hospital-style beds. 



296 The Last Word 



5 The jury's recommendations 
covered eleven general areas: 
public education; boarding 
homes; discharge planning; 
service agencies; advocacy; 
public health; fire safety; 
police forces; Crown attor- 
neys' office; treatment in gen- 
eral hospitals; and coroner's 
system. We do not propose to 
comment in detail on the 
eighty-plus recommendations. 

6 With LTA coverage, rest-home 
residents would have twenty- 
four-hour access to their 
premises. 



RECOMMENDATION 148: That Windsor be considered as a 
site for any comprehensive community-care pilot program. 

In Windsor, we find a ready match between a community that 
appears never to have really experienced deinstitutionaliza- 
tion and the need for a pilot venue to test and evaluate com- 
munity-based services. 

We do not propose here to detail the pilot project, for we 
feel it is essential that the residents and local community be 
involved at every stage. But it is clear that as residents leave 
the large rest homes, hostel funds will become available for 
reallocation to community-based services. Further interim 
provincial funding will be required to promote the develop- 
ment of community alternatives as well as to monitor and 
evaluate the project. 



Would All This Have Prevented Cedar Glen? 

We return to the most common question — and challenge — 
posed to this Commission: whether our recommendations 
would have prevented the death of Joseph Kendall at Cedar 
Glen. By implication, the question is broadened: can similar 
deaths, and situations in which vulnerable adults reside in 
appalling conditions, be prevented in future? 

At the end of this Inquiry we return to the beginning: the 
recommendations of the coroner's report on the inquest at 
Cedar Glen.^ 

We are in general agreement with many of the recommen- 
dations of the jury. (Some we have strengthened or offered 
suggestions for implementation.) We reinforce their call for 
coverage of rest homes under the Landlord and Tenant Act 
(LTA) and rent control. ^^ We also agree that: 



1. receivers should be appointed for rest homes in circum- 
stances where residents are at serious risk, and that a Rest 



The Last Word 297 



Homes Tribunal with the power to make such orders be 
created; 

2. all operators and owners should be subject to a Canadi- 
an Police Information Centre check with respect to their 
criminal records and that owners/operators with certain 
serious criminal records not be involved in the rest-home 
business; 

3. medications should be re-examined once a year 
(although we would prefer greater frequency); 

4. a phone number for assistance should be posted promi- 
nently in rest homes;'^ 

5. residents must receive their mail unopened; and 

6. stricter enforcement of health and fire standards by 
inspectors is necessary.^ 



7 We have recommended that 
the phone numbers of the 
Rest Homes Tribunal and the 
Advocacy Commission be 
posted prominently in every 
rest home. 

8 We have gone further, rec- 
ommending a means for resi- 
dents and their advocates to 
secure stricter compliance. 



In some areas, we have explored the same ground but pro- 
ceeded in a slightly different direction: 

1. we concur with the need to enact a bill of rights, but 
have not chosen that in the Nursing Homes Act 2iS a model, 
in part because of problems of enforcement; instead we 
call for a bill of rights enforceable by residents through a 
Rest Homes Tribunal; 

2. our discussion of abuse has focused less on policing 
than on a requirement that such abuse be reported to the 
appropriate authorities; 

3. we have recommended that the Ministry of Health, 
rather than the College of Physicians and Surgeons of 
Ontario, ensure that appropriate medical services are pro- 
vided to rest-home residents; and 

4. we endorse the jury's views on discharge planning, 
except that we do not believe it desirable that discharge 
planners limit referrals to subjectively "approved" housing. 



In other areas, we and the jury differ in emphasis. We sense 
the jury is willing, as we are not, to regulate rest homes and 



298 The Last Word 



9 Direct comparisons are diffi- 
cult because of the different 
mandates of an inquest and 
an inquiry and the associated 
length and detail of research. 

10 The local Department of 
Health did find the water at 
Cedar Glen to be contaminat- 
ed. Changes were "ordered," 
but there was no action taken 
by the operators. 



create, in effect, a new set of nursing homes. For example, we 
view medical care in the home as a right of all persons who 
require that it be delivered there; the jury assigns a greater 
role to the house doctor. We have not called for regulation, as 
the jury did, but have presented an alternative that we believe 
will be more effective overall. 

Certain recommendations of the jury have already been 
acted on by the Ontario government: the most important of 
these is legislation to establish an advocacy program and to 
provide advocates with access to rest homes. We have rein- 
forced the right of advocates and community-service providers 
to enter rest homes. 

We feel we have responded to the major inquest recom- 
mendations that fall within our terms of reference. 9 Certainly, 
many of our recommendations, or indeed those of the jury — 
had they been in place — would have significantly reduced the 
likelihood of a Cedar Glen occurring: 



1. the requirement for rest homes to register would have 
drawn the existence of such homes to the formal attention 
of the local inspection bodies; 

2. a CPIC check would have precluded abusive 
owners/operators from being involved in the rest-home 
industry; 

3. a right of access for advocates, as well as regular visiting 
and entry to the premises by others — assured through cov- 
erage under the LTA and our proposed bill of rights — 
would have brought the problems to light and promoted 
an earlier response; 

4. the Rest Homes Tribunal would have provided a conve- 
nient forum in which the multiple violations of the bill of 
rights could have been addressed; 

5. residents' use of buckets as toilets would presumably 
have been reported by any number of visitors or staff, and 
public-health officials would have become actively 
involved early; i" and 



The Last Word 299 



6. the right to place a home in temporary receivership and 
to suspend the operators from the industry would have 
offered a ready remedy. 

Undoubtedly there would have been other positive responses, 
as well. 

Our recommendations should markedly improve both the 
quality of residents' lives and their control over their lives in 
rest homes. Residents should not have to endure the appalling 
conditions of life — and death — experienced at Cedar Glen. 

And this, in the final analysis, is what this Commission of 
Inquiry has been all about. 



300 The Last Word 



1 Redirection of Long-Term Care 
and Support Services in 
Ontario, p. 32. 



APPENDIX: 

Aspects of Long-Term Care 



The Commission is encouraged by the government's aware- 
ness of the need to shift from excess reliance on institutions 
to community care. This general approach is reflected in the 
important document Strategies for Change, and the 1991 pub- 
lic consultation paper Redirection of Long-Term Care and Sup- 
port Services in Ontario. 

We are, however, concerned at the modest pace at which 
the shift from institutions is taking place. We recognize the 
budgetary dilemma involved in funding two systems during 
the transition from institutional to community-based care. We 
stress the obvious point that resources devoted to reinforcing 
the system of institutional care are resources that cannot, by 
definition, develop community-based alternatives. 

Per diem funding for nursing homes in Ontario, as pro- 
posed by the long-term-care project, is to be divided into 
three separate components: nursing and personal care; pro- 
gram; and accommodation. 

Operators will be reimbursed for the first two elements, 
based on actual expenditures: that is, costs will be passed 
through, but there will be no direct profit. With respect to 
accommodation — the so-called "hotel" costs — facilities "will be 
permitted to keep any surpluses they can achieve through 
efficiencies in the accommodation budget. "i 

The strength of this general approach is that it begins the 
separation or delinking of accommodation from care. The 
nursing and program roles could be shifted from operators to 
community-based agencies as the latter develop. (As costs in 
these areas are to be passed through directly, some operators 
may welcome release from a responsibility for which they 
receive no profit.) 

The next step in long-term-care reform, in the Commis- 
sion's view, would be to promote actively the devolution of 



Aspects of Long-Term Care 301 



responsibilities for nursing care and programming from nursing- 
home operators to community agencies. Such a shift, even if 
gradual, would enhance and solidify the funding and service- 
delivery base of community services through a reallocation of 
existing spending. Such community-based services would 
undoubtedly be more empowering to residents, and to their 
families, than is the current operator-driven mode of service pro- 
vision. 

The separation of accommodation from care, associated 
with community-based services, is being advocated for use in 
nursing homes in the United States. A recent article in the 
New York Times by two well-known researchers in the field 
gives added credibility and might well accelerate the accep- 
tance of delinking. 2 

This Commission endorses the general approach of delink- 
ing accommodation from care in nursing homes and urges the 
government of Ontario to implement this approach as quickly 
as possible. 



2 See, for example, R. A. Kane 
and R. L. Kane, "Time to 
Rethink the Nursing Home," 
Neiv York Times, August 18, 
1991. 

3 Strictly speaking, the differen- 
tial per se is not being elimi- 
nated. As the funding basis 
shifts to levels of client need 
rather than type of institution, 
the effect will be to eliminate 
the differential. 

4 The government has allocat- 
ed an additional $30.9 million 
to nursing homes to the end 
of 1992, to enhance services 
and programs to residents. 



THE FUNDING DIFFERENTIAL 



In Part I of this Report, we cited the provincial auditor's find- 
ings concerning compliance with standards in nursing homes. 
It is in this context that we wish to express our serious con- 
cerns about the government's plan to eliminate the historical 
differential in funding between nursing homes and homes for 
the aged.-^ 

We make no direct comment on the general desirability of 
elimxinating this differential in funding; our short-term concern 
is that scarce resources are being directed towards nursing 
homes without adequate assurance of effective enforcement 
mechanisms.'^ The goal, to our mind, is equal quality of care 
and equal quality of life for residents; equality of funding is 
no rnore than a means to this end. Without an effective sys- 
tem that ensures that benefits pass through to residents, 



302 The Last Word 



5 Some observers suggest that a 
rate of 5 percent represents a 
reasonable target. Lower tar- 
gets may be technically possi- 
ble, but the costs of meeting 
care needs in the community 
may be excessive. Others 
argue that even 5 percent is 
too high a rate. 

The bed rate can also be 
calculated for an older popu- 
lation — for example, people 
seventy-five and older — on 
the assumption that care 
needs for the younger elderly 
can be more easily met in the 
community. Such an 
approach would significantly 
reduce the projected bed 
requirements. 



equality of funding itself becomes the goal, and this is not a 
goal that we can endorse. To increase funding to particular 
institutions without first ensuring that adequate and appropri- 
ate compliance requirements are operational places the finan- 
cial interests of operators above the needs of residents. 

The object should not be to eliminate the funding gap 
between nursing homes and homes for the aged, but rather to 
ensure quality care for vulnerable adults in all settings. It is 
our view that this cannot come to pass without the develop- 
ment of a compliance system that maximizes consumer 
empowerment. 

We therefore urge that the government delay its plan to 
eliminate the funding gap between nursing homes and homes 
for the aged pending the implementation of effective compli- 
ance mechanisms to ensure the centrality and empowerment 
of residents. 



COSTS OF INSTITUTIO 
AGING POPULATION 



AL CARE FOR AN 



We are also concerned that eliminating the historical funding 
differential between nursing homes and homes for the aged 
will necessitate scarce resources being unduly directed 
towards institutional care. We feel that a substantial portion of 
these funds could be better devoted to accelerating the devel- 
opment of community-based alternatives. 

The Commission has estimated that if the current 5.9 per- 
cent institutionalization rate of people sixty-five and over is 
maintained, it will be necessary to create some 53,000 addi- 
tional extended-care beds by the year 2010. If the rate were 
decreased to 5 percent, more than 20,000 new beds will be 
needed.'' 

The cost of these new places will be substantial: if we take 
a conservative figure of $70 per bed per day, the new or addi- 
tional operating cost (in 1991 constant dollars) will be 



Aspects of Long-Term Care 303 



between $1.4 million and $37 million per day.^ This is a stag- 6 In addition, there will be 

^. . 1 ^ .... , , ... capital costs to create new 

genng figure m the Commission s view, and a clear indicator ^^^^ 

that purely in fiscal terms, the current rate of institutionaliza- 
tion of Ontario's seniors simply cannot continue. 

It is our view that much of this new spending, in real 
terms at least, should be devoted to developing and enhanc- 
ing community-based in-home care. 

The issue has immediate relevance for the mandate of this 
Commission of Inquiry. We assume that extra needed money 
will not be readily available from the public sector or from 
consumers paying user fees in times of fiscal crisis and eco- 
nomic weakness. The inevitable result will be the further 
spread of private rest homes, where care is based not on need 
but on ability to pay. We will, in effect, accelerate the privati- 
zation of care for the seniors of Ontario, creating a system in 
which income and wealth become primary determinants of 
care received. 

Few people want to be in institutions as they age; yet in 
the absence of community-based care, they will have no real 
alternative, as Ontario's rest and retirement homes 
inevitably — and speedily — develop into a powerful new tier 
of institutional care. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA^^ 

Commission's 
Recommendations 



Chapter 1 : An Introduction 

RECOMMENDATION 1: 

That a "rest home" be defined as any residential premises in 
which three or more persons unrelated to the owner/operator 
reside, and in which one or more of the following conditions 
is satisfied: 

1. the operator is paid for caring for residents, whether or 
not this care is actually received; 

2. the operator makes public or gives others, such as hos- 
pital discharge planners, to understand that care to resi- 
dents is provided by the operator; and/or 

3. care is regularly provided by the operator to residents. 



Chapter 3: Residents IVIust Be Central 

RECOMMENDATION 2: 

That the rest home's primary function be viewed as the provi- 
sion of residential accommodation in which some element of 
care is also provided. 



304 



Recommendations 305 



RECOMMENDATION 3: 

That the government of Ontario expand, as a matter of priori- 
ty, community services that enable people to remain in their 
own homes. 

RECOMMENDATION 4: 

That the rest home be viewed as an alternative form of 
accommodation in the community, and not as the first stage in 
a continuum of institutional care. 

RECOMMENDATION 5: 

That the Community Health and Support Services Division 
develop a precise legal definition of a "nursing home" so that 
it is clear which premises offering "nursing care" require a 
licence. 

RECOMMENDATION 6: 

That no rest-home operator be permitted to sell more than the 
threshold amount of nursing care to any resident of that rest 
home. 

RECOMMENDATION 7: 

That the reform of long-term care ensure that admission to a 
nursing home is not influenced by a person's prior residence 
in a rest home. 

RECOMMENDATION 8: 

That the Nursing Homes Act or its successor prevent licenced 
nursing homes from having a rest home on the same premises. 



Chapter 4: The Regulatory Dilemma 

RECOMMENDATION 9: 

That the rest-home industry consider a system of voluntary 
accreditation similar to the star rating used in the hotel industry. 



306 Recommendations 



RECOMMENDATION 10: 

That standards (physical and care) above the minima recom- 
mended by the Commission be achieved through contracts 
with operators. 



Chapter 5: The Landlord and Tenant Act 
and Rent Control 

RECOMMENDATION 11: 

That the government of Ontario accept as a principle the 
desirability of certainty concerning coverage of all residential 
accommodation for vulnerable adults under the Landlord and 
Tenant Act and the proposed Rent Control Act, 1991 and that 
these statutes be amended to this effect. 

RECOMMENDATION 12: 

That rest homes be subject to Part IV of the Landlord and 
Tenant Act. 

RECOMMENDATION 13: 

That the Landlord and Tenant Act be amended to delete the 
phrase "or for the purposes of receiving care" from clause 
l(c)(ix). 

RECOMMENDATION 14: 

That the Ministry of the Attorney General and other affected 
ministries define specific criteria for qualifying under the 
"rehabilitative or therapeutic purpose" exemption from the 
Landlord and Tenant Act [clause l(c)(ix)]. These criteria 
should then be given legal effect through an appropriate 
amendment to the Landlord and Tenant Act ox its regulations. 

RECOMMENDATION 15: 

That the Ministry of the Attorney General delete from the 



Recommendations 307 



Landlord and Tenant Act the exemption for accommodation 
subject to fourteen listed statutes [clause l(c)(viii)]; and that 
the Ministry of the Attorney General, in conjunction with 
affected ministries, identify in the Landlord and Tenant Act ov 
its regulations clear criteria for exempting premises account- 
able to the government. These criteria are to include the fol- 
lowing: 

1. the accommodation is not intended to be permanent 
accommodation; or 

2. protection against arbitrary and/or economic eviction, 
due process for evictions, and protection of basic rights 
through an enforceable bill of rights are provided for resi- 
dents in the relevant legislation. 

RECOMMENDATION l6: 

That any accommodation exempt from the Landlord and Ten- 
ant Act on the grounds that it meets the criteria for "accom- 
modation occupied ... for rehabilitative or therapeutic purpos- 
es" [clause 1 (c)(ix)] or based on the criteria to replace the 
exemption for accommodation subject to fourteen listed 
statutes [clause 1 (c)(viii)], or provided as short-term emergen- 
cy shelter, be excluded from the definition of "rest home" as 
set out in this Report. 

RECOMMENDATION 17: 

That the Landlord and Tenant Act be amended to provide 
that landlords of registered rest homes may apply for an order 
requiring a resident to temporarily vacate a rest home until a 
pending application to terminate the tenancy is heard in situa- 
tions in which paragraphs (a), (c), or (d) of subsection 109(1) 
of the Landlord and Tenant Act applies and in which the time 
required to proceed with the application for termination 
would likely result in serious harm to the person or property 
of other tenants or the landlord. 



308 Recommendations 



RECOMMENDATION 18: 

That rest homes be subject to rent control. That paragraph 
3(l)(e) of the proposed Rent Control Act, 1991 (Bill 121) be 
amended to remove the phrase "or for the purpose of receiv- 
ing care." 

RECOMMENDATION 19: 

That any accommodation exempted from Landlord and Ten- 
ant Act coverage on the basis of a court determination that it 
is occupied for "rehabilitative or therapeutic purposes" [clause 
l(c)(ix)] or on the basis of the criteria that will replace clause 
l(c)(viii) also be exempt from rent control. 

RECOMMENDATION 20: 

That any care service sold on a mandatory basis in a rest 
home be subject to rent control in the same manner as the 
basic accommodation. 

RECOMMENDATION 21: 

That charges for accommodation and mandatory care services 
in rest homes be subject to the same annual guideline 
increase as charges for other accommodation subject to the 
Rent Control Act, 1991. 

RECOMMENDATION 22: 

That the costs of any meals pirovided as part of the mandatory 
package in rest homes be subject to rent control in the same 
manner as the basic accommodation. 

RECOMMENDATION 23: 

That wages of low-paid staff in registered rest homes be treat- 
ed as an extraordinary operating cost under the Rent Control 
Act, 1991 and as such may constitute the basis of an applica- 
tion for rent increases above the annual guideline. 



Recommendations 309 



Chapter 6: Life at the Top 

RECOMMENDATION 24: 

That subsection 1(1) and section 31 of the proposed Rent 
Control Act, 1991 be amended to indicate, respectively, that 
in a registered rest home, charges for optional care services 
are not "rent" and that the purchase of care services as part of 
a mandatory package of accommodation and care services 
does not constitute an illegal "additional charge." 

RECOMMENDATION 25: 

That registered rest homes be permitted to sell any mandatory 
package of accommodation and services they wish, provided 
that the same mandatory package be sold to all residents. 

RECOMMENDATION 26: 

That section 18 of the proposed Rent Control Act, 1991 be 
amended to exclude personal-care services, in order to ensure 
that the same mandatory package is available to all residents. 

RECOMMENDATION 27: 

That comprehensive information be provided in writing to each 
prospective resident of a rest home, covering the following: 

1. services available as part of the mandatory package, 
identifying any limitations on their use, and the price of 
the mandatory package; 

2. optional services available from the operators, identify- 
ing any limitations on their availability, and the price of 
each such service; 

3. minimum staffing levels, and qualifications, if any, of 
staff; 

4. details of the emergency-response system, if any, or an 
indication that none is available; and 

5. internal procedures, if any, for dealing with complaints. 



310 Recommendations 



RECOMMENDATION 28: 

That the lease include a prescribed standard list on which 
information is provided as to whether each enumerated care 
service is included in the mandatory package, identifying any 
limitations on its use. 

RECOMMENDATION 29: 

That detailed information on the emergency-response/call sys- 
tem, if any; minimum staffing level on each shift; and qualifi- 
cations of staff be provided as part of the lease, or a statement 
be provided that no commitment beyond any legal require- 
ment is made with respect to standards for these services. 

RECOMMENDATION 30: 

That information about and prices for optional services pro- 
vided by operators be readily available on a prescribed stan- 
dard form list. This list, completed by the operator, must be 
posted publicly in the rest home or available on request. 

RECOMMENDATION 31: 

That operators not be permitted to withhold any optional ser- 
vice or its posted price or charging method from individual 
residents. 

RECOMMENDATION 32: 

That the price list include details of price increases for each 
optional service during the previous two years. 

RECOMMENDATION 33: 

That each resident shall sign a receipt for each optional ser- 
vice and shall receive on a weekly basis an enumerated state- 
ment of optional or additional charges incurred during the 
preceding seven days. 

RECOMMENDATION 34: 

That price changes to the list of optional services be permitted 



Recommendations 311 



only at six-month intervals. In addition, optional services may 
be withdrawn from all residents only at six-month intervals. 
Tenants must be notified in writing ninety days in advance of 
any increase in optional service prices or of termination of 
any optional service. 

RECOMMENDATION 35: 

That the Landlord and Tenant Act contain an "escape clause" 
for residents of rest homes permitting them to terminate fixed- 
term leases with notice if an optional service that they use is 
withdrawn or the price of an optional service they use is 
increased during the term of the lease. 

RECOMMENDATION 36: 

That costs incurred in providing new or enriched care services 
in the mandatory package of registered rest homes be allow- 
able expenses in calculating the "3 percent above guideline" 
increase under the proposed Rent Control Act, 1991. 

RECOMMENDATION 37: 

That appropriate community information services be funded 
by the government to collect and distribute information on 
the availability of community-based services for vulnerable 
adults. 

RECOMMENDATION 38: 

That operators not be permitted to deny or impede access to 
the rest home by any outside service providers requested by 
the resident, that use of the premises must be given on terms 
no less advantageous than those under which the operators 
deliver the same or similar services, and that no fee be 
charged to outside suppliers for entry, except to defray or off- 
set direct costs to the operators. 

RECOMMENDATION 39: 

That no residents be required or coerced to purchase optional 



312 Recommendations 



services from any nanied service provider (including the oper- 
ators or the house doctor) over suppliers of their own choice. 

RECOMMENDATION 40: 

That Home Care and other community-based agencies consid- 
er residents of rest homes to be equally eligible for their ser- 
vices as anyone else in the community, i.e., they may not dis- 
criminate against individuals on the basis of their residence in 
a rest home. 

RECOMMENDATION 4l: 

That rental of the first unit of the type vacated by a departing 
resident ends the financial liability of the departing tenant or 
estate. 

RECOMMENDATION 42: 

That no lawyers, social workers, or persons regulated under 
the Regulated Health Professions Act, 1991 be permitted to 
have any professional relationship with residents in a rest 
home in which they have or their immediate family has a 
financial interest. 

RECOMMENDATION 43: 

That subsection 10(2), section 24 and subsection 54(1) of the 
proposed Substitute Decisions Act, 1991 be amended to 
exclude the immediate family of rest-home operators from 
being witness to a continuing power of attorney by a rest- 
home resident, and from being appointed by a court as the 
guardian of the person or property of an incapable person 
who resides in the rest home. 

RECOMMENDATION 44: 

That informal mediation be pursued as a "first-line" response 
to disputes within a rest home whenever possible. 



Recommendations 313 



RECOMMENDATION 45: 

That the rest-home industry consider adoption of an ombuds- 
man system for fast and informal resolution of disputes. 

RECOMMENDATION 46: 

That operators indicate in writing in advance any voluntary 
adjudicative procedures they are prepared to adopt. 



Chapter 7: Life Near the Bottom 

RECOMMENDATION 47: 

That current initiatives to increase the adequacy of social- 
assistance payments, to vulnerable adults in particular, contin- 
ue at the maximum speed possible. 

RECOMMENDATION 48: 

That the domiciliary-hostel program with its per diem funding 
of operators be phased out as soon as possible, and that the 
provincial government commit itself to end the domiciliary- 
hostel system within a fixed period. 

RECOMMENDATION 49: 

That as the phasing-out of the domiciliary-hostel program pro- 
ceeds, funds currently spent on the hostel system be made 
available for reallocation to accommodation (with or without 
meals), and to care services. 

RECOMMENDATION 50: 

That the Ontario government fund non-profit housing agen- 
cies to assist in arranging housing alternatives for those resi- 
dents of rest homes who wish to leave domiciliary hostels and 
desire assistance to go onto other forms of social assistance. 



314 Recommendations 



RECOMMENDATION 51: 

That the Ontario government fund non-profit agencies and 
groups of current or former rest-home residents to assist resi- 
dents, as desired, to identify their own care needs and arrange 
for these to be met in ways acceptable to themselves as they 
leave domiciliary hostels and go onto other forms of social 
assistance. 

RECOMMENDATION 52: 

That all community-based agencies involved with housing or 
service provision in the move away from the domiciliary-hos- 
tel system have an explicit commitment to involve consumers 
actively in all aspects of decision-making to the maximum 
extent possible. 

RECOMMENDATION 53: 

That all new and reallocated funding of services for residents 
of hostels be directed towards non-profit community-based 
suppliers whenever possible. 

RECOMMENDATION 54: 

That groups of consumer/survivors be utilized as paid first- 
line emergency-response teams in the event of resident crises 
in rest homes whenever possible. 

RECOMMENDATION 55: 

That the provincial government allocate new funding of about 
$1,000 per year for the provision of community-based services 
for each resident who leaves domiciliary-hostel accommoda- 
tion for another social-assistance status in the community. This 
funding is to be in addition to the reallocated hostel funding. 

RECOMMENDATION 56: 

That in the reallocation of domiciliary-hostel funding, the 
"care services" portion be funded 100 percent by the Ontario 
government. 



Recommendations 315 



RECOMMENDATION 57: 

That residents funded under the domiciliary-hostel system be 
involved in negotiating the agreements for their accommoda- 
tion and care between operators and municipalities. 

RECOMMENDATION 58: 

That a variable per diem, with two or, perhaps, three levels of 
remuneration be used by municipalities, as both incentive and 
deterrent to operators. 

RECOMMENDATION 59: 

That increased per diem funding for operators not be viewed 
as the appropriate way to improve the quality of life for rest- 
home residents, and that operators of domiciliary hostels be 
encouraged to move towards a role that approximates that of 
landlords as closely as possible. 

RECOMMENDATION 60: 

That no increases in the level of per diem funding to opera- 
tors (in real terms) be considered at present. 

RECOMMENDATION 6l: 

That the domiciliary-hostel payment system from municipalities 
to operators be modified so as to involve residents directly. 

RECOMMENDATION 62: 

That the General Welfare Assistance Act Regulations be 
amended to specify that no municipal hostel agreement with 
operators can exceed one year. Such contracts may be 
renewed annually. 

RECOMMENDATION 63: 

That the General Welfare Assistance Act Regulations permit 
hostel funding only to residences below a provincially deter- 
mined maximum resident capacity. 



316 Recommendations 



RECOMMENDATION 64: 

That the General Welfare Assistance Act Regulations be 
amended to require that all domiciliary-hostel agreements 
include a requirement that the operators provide, without 
additional charge, all needed supplies of soap, toilet paper, 
and hygienic pads. 

RECOMMENDATION 65: 

That if rest-home operators choose to offer a "canteen ser- 
vice," they may not charge prices above those prevailing in 
the neighbourhood. 

RECOMMENDATION 66: 

That owners/operators/staff of rest homes shall neither dis- 
pense nor trustee a personal-needs allowance, under any cir- 
cumstances. 

RECOMMENDATION 67: 

That the personal-needs allowance be paid separately from 
other social-assistance payment to recipients who qualify for it. 

RECOMMENDATION 68: 

That the Ministry of Community and Social Services arrange 
with suitable outside non-profit agencies to serve as trustee 
for those residents who wish such a service. That where a 
trustee is appointed under Family Benefits legislation, the 
social-assistance recipient should be permitted to appeal the 
appointment to the Social Assistance Review Board. That the 
regulations to the Family Benefits Act prohibit the appoint- 
ment of rest-home owners/operators/ staff as trustees for rest- 
home residents. 



Recommendations 317 



Chapter 9: A Residents' Bill of Rights 

RECOMMENDATION 69: 

That a bill of rights for residents of rest homes be enacted as a 
matter of priority. 

RECOMMENDATION 70: 

That the residents' bill of rights include rights in the following 
general areas: respect for the basic human dignity of the resi- 
dents; a safe, secure, and clean living environment; personal 
rights; confidentiality; sexuality; religion; consent to treatment; 
restraint and seclusion; freedom from abuse; advocacy and 
other outside supports. 

RECOMMENDATION 71: 

That there be a legal requirement to report abuse of residents 
of rest homes. That there be a legal prohibition of sanctions 
or retaliation by operators and staff against the allegedly 
abused resident and any person who reports the abuse of a 
resident in a rest home. 

RECOMMENDATION 72: 

That a Rest Homes Tribunal be created. That the Rest Homes 
Tribunal assume administrative, mediative, and adjudicatory 
responsibilities with respect to the rest-homes residents' bill of 
rights. 

RECOMMENDATION 73: 

That in dealing with the bill of rights, the Rest Homes Tri- 
bunal staff first offer an informal mediation process, followed 
by a second adjudicatory stage if necessary. 

RECOMMENDATION 74: 

That rest-home residents have access to advocates under the 
proposed Advocacy Commission and, if eligible, access to 



318 Recommendations 



legal representation under the Legal Aid Plan to pursue com- 
plaints before the Rest Homes Tribunal. 

RECOMMENDATION 75: 

That there be legal prohibition of sanctions or retaliation by 
the operators, employers and staff against residents and staff 
persons who make complaints to the Rest Homes Tribunal. 

RECOMMENDATION 76: 

That there be an 800 telephone number, staffed continuously, 
for easy and rapid access to the Rest Homes Tribunal. 

RECOMMENDATION 77: 

That printed signs with the 800 number be posted in every 
rest home and that literature concerning the Rest Homes Tri- 
bunal be readily available in all rest homes. 

RECOMMENDATION 78: 

That the Rest Homes Tribunal have available a wide range of 
penalties and remedies appropriate to the severity of a viola- 
tion. 

RECOMMENDATION 79: 

That the Rest Homes Tribunal possess the capacity to order 
emergency responses and interventions, including the power 
to order the temporary takeover of a residence, when the Rest 
Homes Tribunal believes that the rest home is being operated 
in a manner that presents a serious risk to the health of resi- 
dents or a serious risk of physical injury to residents. 

RECOMMENDATION 80: 

That all decisions and penalties of the Rest Homes Tribunal be 
widely and easily available to the public at large. 

RECOMMENDATION 81: 

That a complaints register that is readily accessible to the pub- 



Recommendations 319 



lie be maintained by the Rest Homes Tribunal. 

RECOMMENDATION 82: 

That the Ministry of Citizenship be vested with responsibility 
for the administration and funding of the Rest Homes Tri- 
bunal. 

RECOMMENDATION 83: 

That the Advocacy Commission consider identifying settings 
in which the receipt of advocacy services will be deemed a 
priority. Rest homes as defined by this Commission should be 
one such setting. 

RECOMMENDATION 84: 

That the Advocacy Commission ensure operational proce- 
dures are in place so that empowerment of the individual 
remains the central goal of the program. 

RECOMMENDATION 85: 

That church, community, and other voluntary groups be 
encouraged to visit rest homes regularly, thereby serving as 
informal advocates. That limited funding be available to such 
groups to defray direct costs in connection with such visiting. 

RECOMMENDATION 86: 

That the Good Neighbours initiative promote awareness of 
the needs of rest-home residents. 



Chapter 10: Safety Standards 

RECOMMENDATION 87: 

That the principle of a minimum standard for housing quality 
for rest homes based on protecting the lives and safety of resi- 
dents be adopted, and that no operator be permitted to offer 
accommodation that fails to meet this minimum. 



320 Recommendations 



RECOMMENDATION 88: 

That a system of mandatory registration for all rest homes be 
introduced as soon as possible. That all rest homes be 
required to register with the municipality in which they are 
located. That municipalities be permitted to charge a modest 
fee for registration. 

RECOMMENDATION 89: 

That any owner or operator seeking registration for a rest 
home shall be required to produce the following documents 
to the municipality- in which the dwelling is located: 

1. a certificate from the fire inspector attesting to compli- 
ance with the relevant sections of the Fire Code, or noting 
all outstanding work orders; 

2. a certificate from the building inspector attesting to com- 
pliance with the relevant sections of the Building Code and 
applicable local property standards by-laws, or noting all 
outstanding work orders; and 

3. a certificate from the local board of health attesting to 
compliance with the applicable sections of the Health Pro- 
tection and Promotion Act, or noting all outstanding 
orders; 

4. a certificate from the local police containing the results 
of a Canadian Police Information Centre check on the 
operators; 

5. a certificate from the Rest Homes Tribunal that affirms 
the operators are not at present banned from the industry 
and that the Rest Homes Tribunal holds that any convic- 
tions indicated by the Canadian Police Information Centre 
check do not constitute a bar to involvement in the indus- 
try. 

RECOMMENDATION 90: 

That every person seeking registration as owner/operator of a 
rest home be required to undergo a Canadian Police Informa- 
tion Centre check prior to registration. 



Recommendations 321 



RECOMMENDATION 91: 

That if an applicant has previous criminal convictions, the 
Rest Homes Tribunal determine the suitability of the applicant 
to own or operate a rest home and whether the applicant 
shall be permitted to register the rest home. 

RECOMMENDATION 92: 

That full information on the names, addresses, and. phone 
numbers of all owners and operators holding more than a 
specified minority interest accompany an application for regis- 
tration of a rest home and subsequently be posted prominent- 
ly in the home. 

RECOMMENDATION 93: 

That registration be obtained upon any change of ownership 
and renewed annually. 

RECOMMENDATION 94: 

That all municipal inspection and enforcement bodies be 
encouraged to keep all information about rest homes in such 
a manner that it can be easily shared. That these bodies share 
the information on a regular basis. 

RECOMMENDATION 95: 

That all rest homes be given a six-month period to register 
after the enactment of the legal requirement to do so. 

RECOMMENDATION 96: 

That there be a range of penalties for a rest home that oper- 
ates without registration, including an order by the Rest 
Homes Tribunal to close the premises with the cost of reloca- 
tion of the residents chargeable to the operators. 

RECOMMENDATION 97: 

That staff in rest homes be viewed as serving a safety rather 
than a care-giving function. 



322 Recommendations 



RECOMMENDATION 98: 

That a minimum staff-to-resident ratio be mandatory in all rest 
homes at all hours. That only adults over the age of sixteen 
count in meeting this ratio. 

RECOMMENDATION 99: 

That administrative responsibility to ensure staff ratios in rest 
home are met be given to municipal fire inspectors. 

RECOMMENDATION 100: 

That any staff person who is involved in any aspect of assist- 
ing residents to take medications must be "competent" to do 
so. In assisting a resident in taking medications, "competence" 
means, at a minimum, that assistance can be provided only by 
someone who is: 

1 . sixteen years of age or older; 

2. able to read and follow the directions on the bottle or 
package; and 

3. able to identify, recognize, and communicate with the 
resident. 

RECOMMENDATION 101: 

That any operator providing assistance with medications be 
responsible to ensure that the medications, as prescribed, are 
delivered to the correct person in the prescribed dosage at the 
prescribed frequency. 

RECOMMENDATION 102: 

That operators be required to offer a secure locked area for 
the storage of medications. 

RECOMMENDATION 103: 

That the Ministry of Health develop relevant standards and 
guidelines for the regular inspection of rest homes, as defined 
by the Commission, under section 10 of the Health Protection 
and Promotion Act. 



Recommendations 323 



RECOMMENDATION 104: 

That the duty to inspect food premises under section 10 of the 
Health Protection and Promotion Act include regular inspec- 
tions of all rest homes serving food to ten or more residents. 

RECOMMENDATION 105: 

That the Ministry of Health consider the development of 
guidelines that would apply to all premises serving food to 
three or more and fewer than ten persons. 

RECOMMENDATION 106: 

That rest-home residents be recognized as a special group for 
the purpose of equal access to mandatory public-health pro- 
grams under the "General Standard — Equal Access" in Manda- 
tory Health Programs and Services Guidelines under the 
Health Protection and Promotion Act. 

RECOMMENDATION 107: 

That public-health officials, in conjunction with the Ontario 
Dietetic Association, explore appropriate minimum nutritional 
standards for residents of rest homes. 

RECOMMENDATION 108: 

That public-health nurses and nutritionists offer nutritional 
services to rest-home residents and operators as part of their 
mandatory provision of health services. This requirement 
should be incorporated into the "Program Standard — Nutrition 
Promotion" in the Mandatory Health Programs and Services 
Guidelines under the Health Protection and Promotion Act. 

RECOMMENDATION 109: 

That public-health nurses offer assistance to rest-home opera- 
tors in developing appropriate systems for assisting residents 
with their medications, and that they offer training to meet 
rest-home staff in utilizing an appropriate system. 



324 Recommendations 



RECOMMENDATION 110: 

That as a matter of general policy, residents of rest homes 
should have the same protections under the Fire Code as are 
provided to persons in rooming houses. 

RECOMMENDATION 111: 

That the standards required of rooming houses as set out in 
section 9-3, and draft sections 9.5 and 9.6 of the Fire Code be 
required of rest homes. 

RECOMMENDATION 112: 

That the exclusionary reference to premises in which the resi- 
dents "do not require care or treatment" in section 9-3 of the 
Fire Code be eliminated, and that the terms "boarding, room- 
ing and lodging accommodation" as used in section 9-3 and 
draft sections 9.5 and 9.6 be interpreted to include rest homes 
as defined by this Commission. 

RECOMMENDATION 113: 

That the fire marshal explicitly recognize the possible adverse 
effect on the rest-home stock of any higher standards under 
consideration. 

RECOMMENDATION 114: 

That community housing groups be involved in any decision- 
making process concerning higher fire-protection standards 
for rest homes. 

RECOMMENDATION 115: 

That the Low Rise Rehabilitation Program of the Ministry of 
Housing permit that funding be made available to operators 
of rest homes for upgrading purposes, including meeting 
retrofit fire-safety standards. 

RECOMMENDATION 11 6: 

That where a municipality desires higher standards in a domi- 
ciliary hostel than those contained in the Fire Code, they 



Recommendations 325 



should be negotiated on a contractual basis between the 
municipality and operators of the rest homes. 

RECOMMENDATION 117: 

That whatever new fire-safety standards may emerge from the 
Rupert Hotel inquest apply not only to rooming houses, such 
as the Rupert Hotel, but also to rest homes as defined by this 
Commission. 

RECOMMENDATION 118: 

That rest homes, as defined by the Commission, be included 
in the list of examples of "residential occupancies" in 
Appendix A (at A-3.1.2A.) of the Building Code. 

RECOMMENDATION 119: 

That the Building Code be endorsed as a single provincial 
construction standard, and that municipalities not be permit- 
ted to impose higher standards for the occupancy and/or 
maintenance of rest homes than those required by the "resi- 
dential" standard of the Building Code. 

RECOMMENDATION 120: 

That all inspection visits to rest homes be conducted on an 
unannounced or surprise basis. 

RECOMMENDATION 121: 

That the ministry responsible for rest homes ensure an effec- 
tive and speedy appeal procedure is in place with respect to 
inaction or decisions by public inspection authorities responsi- 
ble for minimum standards in rest homes. 

RECOMMENDATION 122: 

That in matters within the jurisdiction of Fire Code Commis- 
sion, the Building Code Commission, and the Public Health 
Appeal Board, any residents or their advocates shall have the 
same formal standing as is given to the owner/operators. 



326 Recommendations 



RECOMMENDATION 123: 

That the mandates of the appropriate appeal tribunal or 
provincial inspectorate be extended to include non-response 
and untimely responses on the part of front-line inspectors. 

RECOMMENDATION 124: 

That persons familiar with residential tenancies, including resi- 
dents, be appointed to the Fire Code Commission, Building 
Code Commission, and Health Protection Appeal Board. 



Chapter 11: Housing: Supply and Choice 

RECOMMENDATION 125: 

That current efforts at co-ordination among the ministries 
responsible for supportive housing be intensified, and that 
they develop a single, common definition of "supportive 
housing." 

RECOMMENDATION 126: 

That the ministries involved with supportive housing recog- 
nize the importance of delinked service provision to such 
housing. 

RECOMMENDATION 127: 

That the Ministry of Housing amend the Planning Act to 
make accessory apartments and rooming, boarding, and lodg- 
ing houses an as-of-right use in all zones where residential 
uses are permitted. 



Chapter 12: Professional and Human 
Resources 

RECOMMENDATION 128: 

That community agencies, such as St. John's Ambulance, be 
encouraged to develop and deliver short workshops on assist- 



Recommendations 327 



ing with medications to be attended by staff of rest homes. 

RECOMMENDATION 129: 

That operators and staff participate in workshops to become 
familiar with the new rights-based protections in rest homes. 

RECOMMENDATION 130: 

That information about rest homes be made available to pro- 
fessionals when the mandatory registration for rest homes 
begins. 

RECOMMENDATION 131: 

That local educational authorities develop short training cours- 
es with flexible schedules for staff in rest homes. 

RECOMMENDATION 132: 

That the Ministry of Labour re-examine its definition of "hos- 
pital" under the Hospital Labour Disputes Arbitration Act with 
a view to replacing it with more general legislation dealing 
with essential care services, however and wherever delivered. 

RECOMMENDATION 133: 

That the Workers' Compensation Board consider dividing its 
proposed new rate group 240 into two separate categories, 
distinguishing between premises that provide ongoing extend- 
ed care and those that offer residential care (i.e., only limited 
nursing care). That registered rest homes be included in the 
latter grouping for assessment purposes. 

RECOMMENDATION 134: 

That the College of Physicians and Surgeons of Ontario devel- 
op a protocol describing the duties and responsibilities of 
"house doctors" in rest homes. 

RECOMMENDATION 135: 

That the Ministry of Health investigate the billing practices 
and quality of medical care delivered in rest homes by those 



328 Recommendations 



physicians who regularly claim for multiple and sequential 
home visits in rest homes. 

RECOMMENDATION 136: 

That the Ontario Health Insurance Plan consider paying the 
special-visit fee only once for multiple home visits in one 
physical location. 

RECOMMENDATION 137: 

That the Ministry of Health develop measures to ensure that 
persons who are unable to attend medical premises are able 
to receive medical care in their homes, which includes rest 
homes. 

RECOMMENDATION 138: 

That the Ministry of Health develop measures to improve the 
accountability of physicians with respect to the medications 
they prescribe to residents of rest homes. That the role and 
responsibilities of pharmacists in this area be clarified. 

RECOMMENDATION 139: 

That the Ministry of Health financially support resident initia- 
tives to lessen dependence on drugs and medications. 

RECOMMENDATION 140: 

That hospital discharge planners be supported in their efforts 
to draw up criteria to identify "approved" or "recomrnended" 
housing in their communities. 

RECOMMENDATION l4l: 

That discharge planners continue to collect and share infor- 
mation on accommodation in the community; that discharge 
planners have all available information on rest homes on-line. 

RECOMMENDATION 142: 

That discharge planners only give information to departing 



Recommendations 329 



patients about rest homes that are registered with the munici- 
pality. That discharge planners be free to give information on 
"unapproved" but legal rest homes, while identifying the caus- 
es preventing "approved" status. 

RECOMMENDATION l43: 

That the Ministry of Community and Social Services clearly 
identify in advance, each year, the costs of providing accom- 
modation for adults with developmental disabilities in chil- 
dren's facilities as part of the ministerial estimates. 

RECOMMENDATION 144 

That the Ministry of Community and Social Services accelerate 
its plans to remove all adults with developmental disabilities 
from children's residential accommodation; and that pending 
such removal, the ministry take steps to ensure that appropri- 
ate standards for adults and effective accountability mecha- 
nisms are in place in such residences. 

RECOMMENDATION 145: 

That the role of local placement-co-ordination services and 
service co-ordination agencies with respect to rest homes be 
solely one of providing information. 



Chapter 13: Provincial-Municipal Issues 

RECOMMENDATION 146: 

That in any provincial-municipal restructuring, the level of 
government responsible for providing social assistance to an 
person should not alter by virtue of that person's residence in 
a hostel. 



330 Recommendations 



The Last Word 

RECOMMENDATION 147 

That the government consider implementing one or more 
pilot projects in which the development and implementation 
of relatively comprehensive community-based services will be 
accelerated in designated communities. These pilot projects 
should stress resident involvement in all stages of program 
design and delivery. That any such pilot program be formally 
evaluated as to outcome. 

RECOMMENDATION 148: 

That Windsor be considered as a site for any comprehensive 
community-care pilot program. 



AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA/^^ 



List of Written 
Submissions 



Addiction Research Foundation 

Toronto 

Mark Taylor, President 

Adult Protective Services 

Peterborough 

Maria Van Hoeve 

Adult Protective Services 

Perth 

Jeff Nault 

Advocacy Centre for the Elderly 
Human Rights Committee 
George T. Monticone 

Alert Care Corporation 

Richmond Hill 

Avril Da vies, Regional Manager 

Algoma Community Legal Clinic Inc. 

Sault Ste. Marie 

Gayle Broad, Community Legal Worker 

Algoma District Health Council 

Sault Ste. Marie 

Marie Price, Chairperson 

Algoma Health Unit 

Sault Ste. Marie 

Jane "Harbour, Director of Nutrition 



Alzheimer Association of Ontario 

Toronto 

John Ellis, Executive Director 

Alzheimer Society of Kingston 
Lyn Hall 

Alzheimer Society of Kingston 
Jane Kelly 

Alzheimer Society of Sudbury-Manitoulin 

Sudbury 

Joyce M. Tovey, Executive Director 

Anglican Houses Serving People 

Toronto 

Julie Mancuso, Manager Adult Programs 

Anglican Houses Serving People 

Toronto 

Terry McCallum, M.S.W., C.S.W. 

Apartments for Living for Physically Handi- 
capped 
Windsor 
Mrs. Simko-Hatfield, Administrator 

Archway 
Toronto 
Maria Arruda 



331 



332 List of Written Submissions 



Association of Municipalities of Ontario 

Toronto 

John Harrison, President 

Association of Supervisors of Public Health 

Inspectors of Ontario 
M. R. Bragg, B.A., C.P.H.I.(Q, President 

Brant Community Social Planning Council 
Robert K. Van Louwe, Executive Director 

Brant County Community Legal Clinic 
Carol Burns, Community Legal Worker 

Brant County Health Unit 

Dr. Ian Cunningham, Medical Officer of Health 

Brant County Social Services 
Ms Margaret Hughes 

Brant District Health Council 

Brantford 

Tessa Kane, Chairman 

Brant Family Counselling Centre 

Brantford 

Marie Friesen 

Brant Family Counselling Centre 

Brantford 

Colleen Heer, B.A. 

Brant Family Counselling Centre 

Brantford 

Maxine Lean, B.A. 

Brantford Ethnoculturefest 
Lillina Petrella, Executive Director 

Brantford Ethnoculturefest 

Elfrieda Neumann, Seniors Health Counsellor 



Brockville Psychiatric Hospital 
Dr. H. Lafave 

Brockville Psychiatric Hospital 
P. A. Lee, Administrator 

Brown, Mrs. Flora 
Nepean 

Browne, Angela 
St. Catharines 

Buckingham Manor 

Stouffville 

Manil Simon, C.A. 

Cambridge Active Self Help 

Annette Bauman, Program Coordinator 

Cambridge Memorial Hospital 
Grandside Psychogeriatric Clinic 
Jane Grieve, M.S.W, Co-ordinator 

Campbell, Lilian 
Chesley 

Canadian Association of Retired Persons 

Toronto 

Lillian Morgenthau, President 

Canadian Institute of Public Health Inspectors 

Ontario Branch 

Klaus Seeger, President 

Canadian Mental Health Association 

Brockville 

A. Pinkney, Executive Director 

Canadian Mental Health Association 

Durham Branch 

Virginia Colling, President 



Brockville Psychiatric Hospital 
Peter K. Carter, M.S.W., M.P.A. 



Canadian Mental Health Association 
Kent Branch, Chatham 
Sandra Adie 



List of Written Submissions 333 



Canadian Mental Health Association 

Lambton County Branch 

Colleen Zakoor, C.I. P. Co-ordinator 

Canadian Mental Health Association 

North Bay 

J. Richard Christie, Executive Director 

Canadian Mental Health Association 
Ontario Division, Toronto 
Carol Roup 

Canadian Mental Health Association 

Ottawa 

Marnie Smith, Community Programs 

Canadian Mental Health Association 

Sudbury Branch 

Mary Ann Quinlan, Executive Director 

Canadian Mental Health Association 
Windsor-Essex County Branch 
Pamela G. Hines, Executive Director 

Canadian Pensioners Concerned 
Ontario Division 
Gerda Kaegi 

Canadian Union of Public Employees 
Ontario Division 
Ruth Scher 

Caregard Management Inc. 
Robertson House, Nepean 
J. M. Tate, Vice-President 

Catulpa-Tamarac, Community Services 

Orillia 

Lyn Tyerman, Manager 

Centenary Hospital, Scarborough 
Marjorie Lennox, Director of Social Work 

Centre- for Independent Living in Toronto 

(C.I.L.T.) Inc. 
Sandra MacEachern, Peer Advocate 



Chatham Public General Hospital 
Dr. B. D. Sood, Chief of Psychiatry 

Christian Labour Association of Canada 

Mississauga 

Ed Vanderkloet 

Clark, Lynn G. 
Chatham 

Coalition for the Protection of Roomers and 

Rental Housing 
Toronto 
Lenny Abramowicz 

Community Occupational Therapy Associates 

Toronto 

Nancy Sidle, O.T.(C) 

Cotton, Evelyn 
Arthur 

Dawn House Women's Shelter 

Kingston 

Joanne Mcalpine, Administrator 

Duncan, Dr. Lucy 
Sarnia 

Durham Region Placement Co-ordination 

Service 
Diane Bennett, Director 

Durham, Regional Municipality of 
Environmental Health Services 
Brian Devitt, C.P.H.I.(C), Director 

Durham, Regional Municipality of 

Dr. Robert Kyle, Medical Officer of Health 

Eastern Ontario District Health Council 
Donald R. St-Pierre, Executive Director 

Eastern Ontario Health Unit 

Dr. Robert Bourdeau, Medical Officer of Health 



334 List of Written Submissions 



Eldridge, Elizabeth 
Durham 

Etobicoke, City of 

Dr. A. Egbert, Medical Officer of Health 

Etobicoke, City of 

Ronald S. Gillespie, City Clerk 

Etobicoke Council of Consumers/Survivors 
E. L. Grosvenor 

Family and Friends of the Mentally Handi- 
capped 
Windsor 
Bertha Lott, President 

Family Counselling Centre of Brant 
Sonia Pouyat, M.S.W., C.S.W., Executive 
Director 

Family Home Program 

Pembroke 

Mary McBride 

Family Services Centre of Sault Ste. Marie 
David B. Rivard, M.S.W., C.S.W. 

Federation of Ontario Facility Liaison Groups 
Margaret Paproski, President 

Friends and Advocates 

Toronto 

Elizabeth Fowler 

Friends and Advocates 

Toronto 

Murray Saul 

Galbraith, Mrs. Carla 
Fort Frances 

Gerstein Centre 

Toronto 

Pat Capponi, Leadership Facilitator 



Good Neighbours Club 

Toronto 

Gary H. Corlett, Chairman 

Goveia, Dorothy B., C.S.W. 
Kingston 

Grant, Gail C. 
Gore's Landing 

Habitat Services 

Toronto 

Mary Ellen Polak, Director 

Haldimand-Norfolk District Health Council 
Lynn Bowering 

Haldimand-Norfolk Regional Health Dept. 
Dr. William E. Page, Acting Medical Officer of 
Health 

Haliburton, Kawartha and Pine Ridge District 

Health Council 
Anne Gallant, Health Planner 

Haliburton, Kaw^artha, and Pine Ridge District 

Health Unit 
Dr. D. E. Mikel 

Halonen, Eric 
Windsor 

Halton District Health Council 

Oakville 

Jane Sanders, Assistant Executive Director 

Halton, Regional Municipality of 
Social Services Department 
Bonnie Ewart, Commissioner 

Hamilton, City of 

A. L. Georgieff, Director of Local Planning 
Dept. 



List of Written Submissions 335 



Hamilton Psychiatric Hospital Clinical Services 
Len May, Assistant Administrator 

Hamilton- Wentworth District Health Council 
Dr. Robert G. Kirby 

Hamilton- Wentworth Placement Coordination 

Service 
Joyce Caygill, Director 

Hamilton- Wentworth, Regional Municipality of 
Health and Social Services Committee 
Dominic Agostino, Chairman 

Hamilton- Wentworth, Regional Municipality of 
R. J. (Reg) Whynott, Regional Chairman 

Hamilton- Wentworth, Regional Municipality of 
Nancy Voorberg, B.Sc.N., R.N., Supervisor, 
Lodging Home Program 

Haxton's Senior Lodge 

Brantford 

Pierre Jolicoeur, Administrator 

Hearst, Kapuskasing and Smooth Rock Falls 

Counselling Services 
Andre Marcel, Executive Director 

Hearst, Kapuskasing and Smooth Rock Falls 

Counselling Services 
Michel Lamontagne, Manager 

Helpmate Community Information 

Richmond Hill 

Betty Forward, Executive Director 

Henhoeffer, Linda 
Gorrie 

Hewett, Peter, R.N., B.Sc. 
Peterborough 

Highland Manor 

Fergus 

Margaret Middleton, Administrator 



Holt, Peter 

Ward's Island, Toronto 

Homestead Residential and Support Services 

Hamilton 

R. DeVries, Co-ordinator 

Honeyman, Madeleine 
Ottawa 

Hotel Dieu Hospital 

St. Catharines 

Frank Vetrano, Executive Director 

Johnston, Anne, Metro Councillor 

Toronto 

North Toronto Ward 

Kent County 

M. E. Kuchta, Administrator, Community and 
Social Services 

Kent County District Health Council 

Diana J. Overholt, Assistant Executive Director 

Kingston Friendship Homes Inc. 
Vicky Schenk 

Kingston, Frontenac and Lennox Addington 

District Health Council 
Judith Mackenzie, Senior Planner 

Kingston Psychiatric Hospital Community 

Development Services 
Raymond D. Tremblay, Co-ordinator 

Kitchener- Waterloo Social Planning Council 
Ernie Ginsler, Executive Director 

Lambton District Health Council 
Dr. P. Englert, Chairman 

Leduc, Roland 
Chelmsford 



336 List of Written Submissions 



Leeds and Grenville Developmental Services 
R. G. McMullen, M.A., M.S.W. 

Leeds, Grenville, and Lanark District Health 

Unit 
Dr. A. B. Allen, Medical Officer of Health 

Leeds, Grenville and Lanark District Health Unit 
Catherine Woolham 

Leeds, Grenville and Lanark District Health Unit 
Dave Hart, Program Manager 

Leeds, Grenville and Lanark Placement 

Co-ordination Service 
Mrs. Jean Macintosh, Director 

Listowel Memorial Hospital 
James Van Camp, Administrator 

London, City of 
Mary Lynn Metras 
Councillor, Ward 2 

London Psychiatric Hospital 
M. T. Mercer, Administrator 

Marshall, Louise 
Nepean 

McKinnon, Kim 
Toronto 

McNeill, Wilma 
Sarnia 

Mental Health Coordinating Group of 

Scarborough 
Freida Chavez 

Metropolitan Toronto 

Lea Caragata, Policy Development Officer 

Metropolitan Toronto Home Care Program 
Marie Lund, President 



Metropolitan Toronto Housing Authority 
Jean Augustine 

Muskoka-Parry Sound District Health Council 
Peter Deane, M.P.H., Executive Director 

Muskoka-Parry Sound Health Unit 

Dr. J. Walter Ewing, Medical Officer of Health 

National Pensioners and Senior Citizens 

Federation 
Les Batterson, President 

■ Network North, Sudbury 
The Community Mental Health Group 
Michael Park, Chief Executive Officer 

Niagara, Regional Municipality of 
Senior Citizens Department 
D. H. Rapelje, Director 

Niagara District Health Council 
Gary N. Zalot, Executive Director 

Niagara Falls Social Planning Council 
Mrs. Julie A. Darnay 

Niagara Health Services Department 
Marilyn Spadafore, Community Mental Health 
Program Manager 

Niagara Health Services Department 
Laurie Columbus, Adult Health Program 
Manager 

Niagara Placement Co-ordination Service 
Nancy McDonald, Executive Director 

North Bay Psychiatric Hospital 
Jack Menzies, Administrator 

Ojibway Tribal Family Services 

Kenora 

Colin Wasacase, Executive Director 



List of Written Submissions 337 



Ontario Advisory Council for Disabled Persons 
Bob Loveless, Chairman 

Ontario Association for Community Living 
Nancy Stone, President 

Ontario Association for Community Living 
Don Mills 
Rod Walsh 

Ontario Association of Non-Profit Homes and 

Services for Seniors 
Janice E. Mills, President 

Ontario Association of Professional Social 

Workers 
Doreen Cullen, M.S.W, C.S.W, President 

Ontario Association of Residents' Councils 

Toronto 

Mary Ellen Glover, Co-ordinator 

Ontario Dietetic Association 

Toronto 

Carol Poduch, R.P.Dt., President 



Ontario Nurses' Association 
Glenna Cole Slattery, M.P.A. 
Chief Executive Officer 

Ontario Social Development Council 

Toronto 

Diane Mandell, Acting Executive Director 

O'Shea, Isabelle 

Hope Island 

The Thousand Islands 

Ottawa-Carleton, Regional Municipality of 
Arthur J. Pope, Commissioner 

Ottawa-Carleton, Regional Municipality of 

Luc Legault 

Director, Residential Services 

Ottawa-Carleton Council on Aging 
Margaret Wade Labarge, President 

Ottawa-Carleton Health Department 
Seniors' Co-ordinating Committee 
Mary McNamara, Chairperson 



Ontario Friends of Schizophrenics 
Metro Toronto Chapter 
Claire McLaughlin, President 



Owen Sound Community Network Support 

Team 
Jim Mulvale, Director 



Ontario Friends of Schizophrenics 
Thunder Bay Chapter 
Helen Schumacher 

Ontario Friends of Schizophrenics 

Toronto 

June Conway Beeby, Executive Director 

Ontario Gerontology Association 

Concord 

Annabel Sissons, President 

Ontario Long Term Residential Care Association 

Oakville 

Rick -Winchell 



Palmerston and District Hospital 
Dr. C. F. Cressey 

Parkdale Activities and Recreation Centre 

Toronto 

Marc La Fontaine 

Parkdale Activities and Recreation Centre 

Toronto 

David Littman 

Peef Regional Municipality of 
Home Care and Community Services 
Linda Instance, Director 



338 List of Written Submissions 



Penetanguishene Mental Health Centre 
George Kytayko, Administrator 

Peterborough County-City Health Unit 
Donna Evertsen, Public Health Nurse 

Peterborough County-City Health Unit 
Ann McLeod, Public Health Nurse 

Peterborough Senior Citizens Council 
Elizabeth A. Wright, President 

Pinnock, Mrs. Stella 
Scarborough 

Plummer Memorial Public Hospital 

Sault Ste. Marie 

Lois C. Krause, Vice-President 

Porcupine Health Unit 

Timmins 

JoAnne Stark, Director, Home Care 

Portal Village Retirement Home 

Port Colborne 

Helen E. Baddeley, Administrator 

Psychiatric Patients Advocate Office 

Toronto 

Duff Warring 

Psychiatric Rehabilitation Case Management 

Interest Group 
Rawle Elliott, President 

Queen Street Mental Health Centre 

Community Support and Research Unit 

Toronto 

John Trainor, Director 

Reinke, Ellen 
Hamilton 



Queenchester 
St. Catharines 
Ruth Thiessen, R.N. 

Residence on the St. Clair 

Sarnia 

Mrs. Carolyn L. Harris, Administrator 

Rideau Valley District Health Council 

Smiths Falls 

Stella Turner, Chairperson 

Royal Ottawa Hospital 
Anne M. Huot, M.S.W., C.S.W., Director of 
Social Work 

Royal Ottawa Hospital 
Jane McLean, M.S.W., C.S.W., Community 
Social Worker 

Ryerson Polytechnical Institute 

School of Nursing 

Linda M. Latham, B.A., R.N. 

St. Catharines General Hospital 
Community Mental Health Program 
Mary Krajewski 

St. Mark's Anglican Church 

Brantford 

K. Duning, Outreach Group 

St. Thomas Psychiatric Hospital 
Robert E. Cunningham, Administrator 

Sarnia Community Legal Assistance 
Margaret Capes, Staff Lawyer 

Sarnia-Lambton Placement Co-ordination 

Service 
Mrs. Anne Evans, Director 

Sault Ste. Marie, City of 
L. A. Bottos, City Solicitor 



List of Written Submissions 339 



Sharbot Lake Seniors Home 
Dr. Peter Bell 



Toronto Mayor's Committee on Aging 
Harriet H. Smith, Chair 



Sharon House 

Toronto 

Mrs. Lyn Zacher 

Sherman, Helen 
Richmond Hill 

Simcoe County District Health Unit 
Dr. David Butler-Jones 

Slade, Betty 
Marmora 

Sudbury and District Health Unit 

Dr. R.. J. Bolton, Medical Officer of Health 

Sudbury Community Service Centre 
Anne McGlade 

Sudbury Community Service Centre 
Lynn Wright 

Sudbury General Hospital Crisis Intervention 

Program 
G. R. Rasi, Co-ordinator 

Supportive Housing Network 

Kingston 

Tom Greening, Co-chair 

Thames Valley Placement Coordination Service 

London 

J. Payne, R.N., B.N., M.Ed., Director 

Theunnissen, Mrs. Dianne 
Beaverton 



Toronto, City of 

Fred Breeze, Director of Inspections 

Town and Country Homemakers 

Wingham 

Jean Young, Executive Director 

United Senior Citizens of Ontario 

Toronto 

Jane Leitch, President 

United Steel Workers of America 

Sault Ste. Marie 

Leo Gerard, District Director 

Versa-Care Limited 
Rick Willis, President 

Veterans Affairs Canada 
Hamilton District Office 
Myron Kramar, Chief, Client Services 

Victorian Order of Nursing 

York Branch, Placement Co-ordination Service 

Newmarket 

Bev Lamont 

Waterloo, Regional Municipality of 

John Current, A.M.C.T., Deputy Regional Clerk 

Waterloo, Regional Municipality of 

Maggie Weidmark, Acting Director of Nursing 

Waterloo Region Placement Co-ordination 

Service 
Miss Millie Rider, Director 



Thiessen, Isabel 
Ottawa 

Tilbury Manor Nursing Home 

Tilbury 

Jorge Tangkengko, Administrator 



Wellington County Placement Coordination 

Service 
Mrs. Joanne Weiler, Director 



340 List of Written Submissions 



Wellington-Dufferin-Guelph Health Unit 
Dr. R. M. Aldis 



Windsor YMCA Residence Inc. 
Marie Turek 



Weilington-Dufferin Homes for Psychiatric 

Rehabilitation 
Alistair Moodie, Program Director 

West Nipissing Association for Community 

Living 
Sturgeon Falls 
Denise Gignac, Executive Director 

Whitby Psychiatric Hospital 
John Anderson, Chairman 



York Central Hospital 
Richmond Hill 
Judy Raitt 

York Community Services 

Toronto 

Elizabeth Wangenheim 

York Heights Residents Association 
Don Mills 
Bruce Bokhout 



Whitby Psychiatric Hospital 
Ronald Ballantyne, Administrator 

Whitby Seniors' Programs 
Fay McCorkell, Manager 



York Region Mental Health Services 
Doug Rankmore, Executive Director 

York, Regional Municipality of 

Dr. K. Helena Jaczek, Medical Officer of Health 



Wilcox, Helen 
Bridgenorth 

Windsor, City of 

Dana Howe, Commissioner of Social Services 

Windsor, City of 

Thomas W. Lynd, M.A., A.M.C.T., City Clerk 



York Support Services Network 

Newmarket 

Penny Hubbert, President 

York Support Services Network 

Newmarket 

Marie Lauzier, Program Manager 



77 &» 



Many vulnerable adults in Ontario 
live in conditions that we associ- 
ate with Victorian England, not 
with late twentieth-century Cana- 
da. These vulnerable adults are 
not being accommodated, they 
are being warehoused, conve- 
niently out of sight and mind. 

We did not set out to create a 
system of rental housing in which 
the most vulnerable members of 
society are the least protected, 
but that has certainly been the 
outcome. 



ISBN 0-7729-9618-0 

© Queen's Printer for Ontario, 1992 

5M/04/92