Throughout the coronavirus (“COVID-19”) pandemic, Canada’s senior population has been particularly vulnerable to the virus. In an attempt to reduce the pandemic’s impact on residents living in seniors congregated accommodation facilities (collectively, “Seniors’ Housing”), there have been a number of changes to various regulations. These include changes to visitation guidelines, restrictions on resident movement, the development of new infection prevention and control protocols, and additional requirements on staffing and reporting.
Consequently, owners and operators of Seniors’ Housing facilities have been subjected to significant challenges in protecting their vulnerable residents and maintaining the viability of such facilities. As the risk of the virus begins to wane and other industries begin gradually returning to normal, Seniors’ Housing owners and operators are not likely to be out of the woods yet.
The regulatory frameworks at play for Seniors’ Housing in Ontario, Alberta, British Columbia and Quebec are unique and each has undergone regulatory changes resulting from COVID-19. This post provides a general overview of the regulatory frameworks at play for operators of Seniors’ Housing in these provinces, and precedes our jurisdiction-specific guidance on changes due to the pandemic.
As in other Canadian jurisdictions, Seniors’ Housing in these provinces is also subject to multiple other pieces of legislation spanning, among others, privacy, professional regulation, and personal injury.
The Province of Ontario
There are three broad classes of Seniors’ Housing in Ontario, being long-term care homes, retirement homes or rental housing. Each class is governed by a specific Act and that Act’s underlying regulations.
Long-term care homes are governed under the Long-Term Care Homes Act, 2007,[1] which provides the processes for obtaining a licence to operate a long-term care home, admitting residents into long-term care homes, and operating and staffing long-term care homes. It also enshrines residents’ rights (including a Residents’ Bill of Rights) and the standards for care services offered to long-term care home residents.
The Retirement Homes Act, 2010[2] regulates retirement homes in Ontario. It outlines the mandatory licensing process to operate a retirement home, the general and safety standards to which retirement homes are subject, residents’ rights (including a Residents’ Bill of Rights), and the standards for care services offered to retirement homes residents. It also establishes the Retirement Homes Regulatory Authority, which administers the Retirement Homes Act, 2010 and its regulation.
Finally, the Residential Tenancies Act, 2006[3] governs rental housing in Ontario. It does not provide any accommodation or care services for seniors, but it does oversee tenancy agreements between landlords and tenants of care homes. Care homes are homes that are occupied for the purpose of receiving care services, but do not include long-term care homes.
The Province of Alberta
In Alberta, Seniors’ Housing is comprised of multiple classes of facilities including seniors’ apartments, independent living facilities, supportive living facilities and long-term care facilities. Each type of housing may fall under one or more legislative and regulatory regimes, depending on the type of care offered.
Long-term care homes are governed by the Nursing Homes Act[4]and its ancillary regulations, whichgovern the process of entering into and terminating any contract with the regional health authority, Alberta Health Services (“AHS”), the eligibility and payment of benefits in respect of care and approved programs, as well as provide the authority for the issuance of ministerial orders. The regulations made under this Act include identifying the types of services that are basic care, the process for changes to ownership or the operation of a facility, guidelines for the provision of general safety and accommodation services, as well as continuing care health standards for residents.
Independent supportive living facilities and designated supportive living facilities are governed by the Supportive Living Accommodation Licensing Act[5]and its applicable regulations. The Act provides for the licensing process to operate a supportive living accommodation and provides the general safety and continuing care standards for such facilities. The regulations made under this Act include the types of categories of accommodation, types of information required to be provided to the public, and the qualifications of staff members employed at such facilities.
Long-term care homes, independent supportive living facilities, and designated supportive living facilities must also comply with the Resident and Family Councils Act.[6] This Actrecognises that a residential facility is the home of its residents and therefore residents should be involved in matters that affect their daily lives.
The Alberta Housing Act[7] and its regulations provide accommodation standards for seniors’ lodging facilities that require assistance in obtaining or maintaining housing because of financial, social or other circumstances. The Act provides details on management bodies and information on powers and jurisdiction of the Alberta Social Housing Corporation.
Other seniors’ apartments or independent living facilities are governed under the Residential Tenancies Act,[8] which regulates general tenancies of residential premises in Alberta. This Act sets out obligations of landlords and tenants, such as the payment and holding of security deposits, and governs tenancy dispute and resolution services.
The Province of British Columbia
There are three broad classes of Seniors’ Housing in British Columbia (“BC”): assisted living residences, residential care facilities and rental housing.
Assisted living residences provide housing, hospitality services and personal care services for seniors who can live independently and direct their own care. Assisted living residences are governed by the Community Care and Assisted Living Act[9]and by the Assisted Living Regulation.[10]
Residential care facilities provide accommodation, meals and care and supervision based on the individual’s needs, and can be private-pay or publicly subsidized facilities. Residential care facilities, including those privately owned and operated, are licensed under the Community Care and Assisted Living Act or licensed or designated under the Hospital Act.[11] If licensed under the Community Care and Assisted Living Act, the facilities are also governed by the Residential Care Regulation.[12]
The Residential Tenancy Act[13]governs rental housing in BC. The Residential Tenancy Regulations provide that fixed-term tenancies can be ended by confirmation that the individual requires long-term care.[14] Confirmation of need for long-term care can be provided by a medical practitioner, the manager of a long-term care facility or a person designated or identified by the Residential Tenancy Act or the Health Authorities Act for this purpose.[15]
The Province of Québec
In Québec, four different types of Seniors’ Housing are subject to various regulations under the broader framework of the Act Respecting Health Services and Social Services:[16] private seniors’ residences, intermediate resources, family-type resources and long-term care centres.
Private seniors’ residences such as retirement homes must be certified in accordance with the Regulation respecting the certification of private seniors’ residence,[17] which governs the requisite certification procedures for private seniors’ residences. Private seniors’ residences must also provide registration information with the Register of private seniors’ residences,[18] such as the level of care and number of services associated with the facilities offered.
Intermediate and family-type resources (such as supervised group residences or nursing homes) are governed by the Act Respecting Health Services and Social Services[19]and the Regulation respecting the classification of services offered by an intermediate resource and a family-type resource, which determines the necessary level of care and services offered.[20]
Long-term care centres in Québec (referred to as “CHSLD”), which may be public or private,[21] require a permit delivered by the Minister of Health and Social Services in order to operate.[22] Individuals who use the services of long-term care centres or their representatives may also set up monitoring systems to ensure adequate treatment and safety in accordance with the Regulation respecting the terms governing the use of monitoring mechanisms by a user sheltered in a facility maintained by an institution operating a residential and long-term care centre.[23]
More broadly, Seniors’ Housing is also subject to specific regulation under the Building Act[24]and the Safety Code with regard to the maintenance and installation of safety measures such as firewalls and alarm systems.[25] Furthermore, individuals dealing with seniors and other vulnerable individuals are obliged to ensure their adequate protection from maltreatment under the Act to combat maltreatment of seniors and other persons of full age in vulnerable situations and under Article 48 of the Québec Charter of Human Rights and Freedoms, which protects seniors from all forms of exploitation.[26]
Finally, the Civil Code of Quebec provides general obligations with respect to leasing, one example being the obligation for a private residence to list the services offered in a standard form attached to the lease.[27]
Conclusions
As noted, the regulatory frameworks at play for Seniors’ Housing across Canada are undergoing regulatory changes resulting from COVID-19. In other posts on Dentons Canada LLP’s Canada Regulatory Review, our team will provide jurisdictional-specific updates in a number of provinces.
Based on the regulatory frameworks, we have put together the following organizational toolkit to help operators of Seniors’ Housing keep up with the changes stemming from the pandemic.
The toolkit will assist in identifying important information contained in provincial orders and regulations in relation to COVID-19. Our Dentons Health Care team is more than happy to discuss how this tool relates to your facility.
Dentons Canada LLP Seniors’ Housing Toolkit
- What is the Order Number & Date? __________________________________________________________________________________________
- Does this Order apply to my facility (all beds or specific number of beds)? __________________________________________________________________________________________
- Does this Order amend a previous order? __________________________________________________________________________________________
- Do I have to comply by a certain date? If so, when? __________________________________________________________________________________________
- What specific steps do I need to take in order to ensure my facility complies? __________________________________________________________________________________________
- Who at my organization needs to know about this? __________________________________________________________________________________________
- Which of my stakeholders do I need to inform about the nature and impact of the order? __________________________________________________________________________________________
- Which of my stakeholders do I need to inform about the nature and impact of the order? __________________________________________________________________________________________
- Can I seek an extension or modification of the order for my facility? If so, how? __________________________________________________________________________________________
- Do I have any further questions or concerns not addressed in the Order? If so, who can I contact? __________________________________________________________________________________________
[1] SO 2007, c 8.
[2] SO 2010, c 11.
[3] SO 2006, c 17.
[4] RSA 2000, c N-7.
[5] SA 2009, c S-23.5.
[6] SA 2017, c R-16.7.
[7] RSA 2000, c A-25.
[8] RSA 2000, c R-17.1.
[9] SBC 2002, c 75.
[10] BC Reg 189/2019.
[11] RSBC 1996, c 200.
[12] BC Reg 96/2009.
[13] SBC 2002, c 78.
[14] BC Reg 477/2003, Part 7.
[15] Ibid, s 40.
[16] CQLR c S-4.2 [Health and Social Services].
[17] Ibid, r. 0.01.
[18] This Register is constituted under the Act Respecting Health Services and Social Services: ibid, art 346.0.1.
[19] Ibid, art 303.
[20] Ibid, r. 3.1.
[21] A private CHSLD can be bound by contract to the Minister of Health and Social Services and managed by a private owner in partnership with the public sector.
[22] Health and Social Services, supra note 16, art 437.
[23] Ibid, r. 16.1.
[24] CQLR c B-1.1.
[25] Ibid, r. 3.
[26] Chapter C-12.
[27] Civil Code of Quebec, CCQ, art 1895.4.
