The battle over visitation rights at long term care homes continues

Earlier this month, Speakers Corner heard from a Toronto daughter who spoke about her legal fight to enter a Scarborough long term care home to visit her mother.

“There was no reason for it, absolutely none,” she told us under the condition of anonymity. “You can only block someone if there’s a restraining order on them or if they’ve demonstrated any level of abuse. But honestly you couldn’t find a better daughter. I loved my mother and she loved me.”

The woman was eventually granted unrestricted access but only after hiring a lawyer and providing phone recordings of her mother who stated she wanted her daughter to visit. Sadly, her mother passed away the very day she was planning to stop by the home.

“This should never have happened,” she told us. “Why did I have to hire a lawyer for this? Why did I have to look up the law and explain to my mother that she has the right to choose who visits her, for how long and for when?”

In her case, the issue was over her mother’s power of attorney — a sibling with whom the daughter has a shattered relationship who asked the home not to allow her to visit. But in letters sent to the home from the woman’s lawyer, the Power of Attorney cannot ban visitors under the Long Term Care Act. That decision is solely up to the resident of the home, nobody else.

Stories like this are far too common, says Maria Sardelis who founded the non-profit organization Access to Seniors and the Disabled, after she too was banned from seeing her mother in a long-term Care home near Ottawa years ago.

“These homes are infringing on the charter rights of all these poor people and don’t care,” she said.

Unlike the woman who shared her story, Sardelis was banned after speaking out to the home’s staff about the care her mother was receiving. When she challenged the order, she was ticketed under the Trespass to Property Act (TPA).

“These homes are wrongly using that act to ban people and it’s not just me, I have dozens of other cases where this has happened to people across the province.”

She says many homes are using the TPA to silence people who are simply advocating for better care of their loved ones.

“But it’s not up to the home to make that decision, it’s up to the person living there,” Sardelis said.

“If a visitor is truly a nuisance or becomes violent then by all means, get them out of there,” Sardelis said. “Homes have other legal means to do that, the problem is when they use the Trespass to Property Act, police will enforce it without any evidence or proof.”

Sardelis is hoping someone who is ticketed challenges the issue in the courts. Many have tried she says, but those cases are often dismissed by the Crown.

“Because many times they don’t have a case because there’s no evidence so they withdraw. You don’t get to go before the judge. In the meantime, you have suffered damages, your charter rights have been violated, and the Crown says, ‘Yeah, we’re not gonna win this one. So they drop it.’”

TPA and visitation rights topic at upcoming conference

Sardelis and others who’ve been on the battle lines of this issue worry the Ontario government is not doing enough to educate homes on how to properly use the TPA, an issue Ontario Patient Ombudsman Craig Thompson, whose office resolves complaints about long-term care homes, is expected to address at the Long-Term Care Conference in Toronto on October 27.

At issue is the interpretation of the TPA and the question of who’s property is it —the home’s —or the residents occupying the homes?

“He is saying he is going to introduce a ‘fair way’ to use the TPA,” Sardelis said.

But Sardelis and MPP Lise Vaugeois Thunder Bay-Superior North say Thompson has no right to change the law.

“The former Minister of Long-Term Care knew this,” Vaugeois said.

She says in 2021 Paul Calandra stated long-term care homes all would be directed to recognize that it is the occupant of the unit with the sole right to determine who can come or not come into their premises.

“We’re now hearing that Ontario Patient Ombudsman is planning on doing a presentation at the LTC conference saying that you can use the TPA fairly and that is 100 per cent incorrect.”

Vaugeois says in emails sent to her by Thompson, his interpretation of the law is different.

She’s concerned he will argue that the Residential Tenancies Act, 2006 means long-term care home residents are not tenants under current applicable law and, therefore, the rights of tenants and the Trespass to Property Act (TPA) cannot be applied directly to long-term care homes.

“That is the wrong interpretation,” Vaugeois argues. The Advocacy Centre for the Elderly (ACE) agrees.

Jane Meadus, a lawyer at ACE says case law does not support that argument.

Visitation rights, her agency reports, were confirmed in the case Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC) which held that not only do landlords have no authority to restrict visitors, they are not entitled to use the Trespass to Property Act to bar tenants’ visitors.

“We do know that there’s some mixed messaging going out there right now. But our opinion, is that a person in a home has a right to have visitors without interference,” Meadus said.

While Amber Lepage-Monette, spokesperson for the Ontario Patient Ombudsman’s Office, did not confirm what Thompson will be saying when he addresses the conference later this month, she said his long-standing position is that residents should, as a default, have access to their caregivers and loved ones without restrictions.

“The goal of educating long-term care homes about our office’s approach to this issue has been and remains to reduce the use and limit the impact of any restrictions, regardless of source, on residents.”

She went on to say the office absolutely agrees that long term care residents have the same rights as all other Ontarians under the law including the Fixing Long-Term Care Act, 2021, Residents’ Bill of Rights.

Vaugeois has emailed Thompson directly, urging him to use caution in his address.

“Surely, it is better to err on the side of protecting senior’s rights than to tell LTC home managers that, contrary to case law and police training, they can isolate and harm seniors living in LTC by ‘fairly’ using the TPA,” she writes.

Sardelis plans to attend the conference, hoping her voice is heard.

“We are not backing down on this because the law is on our side,” she said. “The message is out there but why is it these homes are just steadfast and determined to operate above the law?”

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