Part 2 Reporting and Complaints

Question 1

Complaints procedure — licensee
26 (1) Every licensee of a long-term care home shall,

Answer 1

(a) ensure that there are written procedures that comply with the regulations for initiating complaints to the licensee and for how the licensee deals with complaints;

(b) ensure that the written procedures include information about how to make a complaint to the patient ombudsman under the Excellent Care for All Act, 2010 and to the Ministry; and

(c) immediately forward to the Director any written complaint that it receives concerning the care of a resident or the operation of a long-term care home in the manner set out in the regulations, where the complaint has been submitted in the format provided for in the regulations and complies with any other requirements that may be provided for in the regulations.

Question 2

Other documentation

Answer 2

(2) A licensee who is required to forward a complaint under clause (1) (c) shall also provide the Director with any documentation provided for in the regulations, in a manner that complies with the regulations.

Question 3

Licensee must investigate, respond and act
27 (1) Every licensee of a long-term care home shall ensure that,

Answer 3

(a) every alleged, suspected or witnessed incident of the following that the licensee knows of, or that is reported to the licensee, is immediately investigated:

(i) abuse of a resident by anyone,

(ii) neglect of a resident by the licensee or staff, or

(iii) anything else provided for in the regulations;

(b) appropriate action is taken in response to every such incident; and

(c) any requirements that are provided for in the regulations for investigating and responding as required under clauses (a) and (b) are complied with.

Question 4

Reports of investigation

Answer 4

(2) A licensee shall report to the Director the results of every investigation undertaken under clause (1) (a), and every action taken under clause (1) (b).

Question 5

Manner of reporting

Answer 5

(3) A licensee who reports under subsection (2) shall do so as is provided for in the regulations, and include all material that is provided for in the regulations.

Question 6

Reporting certain matters to Director
28 (1) A person who has reasonable grounds to suspect that any of the following has occurred or may occur shall immediately report the suspicion and the information upon which it is based to the Director:

Answer 6

1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident.
3. Unlawful conduct that resulted in harm or a risk of harm to a resident.
4. Misuse or misappropriation of a resident’s money.
5. Misuse or misappropriation of funding provided to a licensee under this Act, or the Connecting Care Act, 2019. 2021, c. 39, Sched. 1, s. 28 (1), 203 (4).

Question 7

False information

Answer 7

(2) Every person is guilty of an offence who includes in a report to the Director under subsection (1) information the person knows to be false. 2021, c. 39, Sched. 1, s. 28 (2).

Question 8

Exceptions for residents

Answer 8

(3) A resident may make a report under subsection (1), but is not required to, and subsection (2) does not apply to residents who are incapable. 2021, c. 39, Sched. 1, s. 28 (3).

Question 9

Duty on practitioners and others

(4) Even if the information on which a report may be based is confidential or privileged, subsection (1) also applies to a person mentioned in paragraph 1, 2 or 3, and no action or other proceeding for making the report shall be commenced against a person who acts in accordance with subsection (1) unless that person acts maliciously or without reasonable grounds for the suspicion:

Answer 9

1. A physician or any other person who is a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991.
2. A member of the Ontario College of Social Workers and Social Service Workers.
3. Any other person prescribed by the regulations. 2021, c. 39, Sched. 1, s. 28 (4); 2023, c. 4, Sched. 2, s. 2 (5).

Question 10

Offence of failure to report
(5) The following persons are guilty of an offence if they fail to make a report required by subsection (1):

Answer 10

1. The licensee of the long-term care home or a person who manages a long-term care home pursuant to a contract described in section 113.
2. If the licensee or person who manages the home is a corporation, an officer or director of the corporation.
3. In the case of a home approved under Part IX, a member of the committee of management for the home under section 135 or of the board of management for the home under section 128 or 132.
4. A staff member.
5. Any person who provides professional services to a resident in the areas of health, social work or social services work.
6. Any person who provides professional services to a licensee in the areas of health, social work or social services work. 2021, c. 39, Sched. 1, s. 28 (5).

Question 11

Offences re suppressing reports
(6) Every person mentioned in paragraph 1, 2, 3 or 4 of subsection (5) is guilty of an offence if the person,

Answer 11

(a) coerces or intimidates a person not to make a report required by this section;

(b) discourages a person from making a report required by this section; or

(c) authorizes, permits or concurs in a contravention of the duty to make a report required by this section. 2021, c. 39, Sched. 1, s. 28 (6).

Question 12

Solicitor-client privilege

Answer 12

(7) Nothing in this section abrogates any privilege that may exist between a solicitor and the solicitor’s client. 2021, c. 39, Sched. 1, s. 28 (7).

Question 13

Inspections or inquiries where information received by Director 29 (1) The Director shall have an inspector conduct an inspection or make inquiries for the purpose of ensuring compliance with the requirements under this Act if the Director receives information from any source indicating that any of the following may have occurred:

Answer 13

1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.
2. Abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident.
3. Unlawful conduct that resulted in harm or a risk of harm to a resident.
4. A violation of section 30.
5. Misuse or misappropriation of a resident’s money.
6. Misuse or misappropriation of funding provided to a licensee under this Act, or the Connecting Care Act, 2019.
7. A failure to comply with a requirement under this Act that resulted in harm or risk of harm to a resident.
8. Any other matter provided for in the regulations. 2021, c. 39, Sched. 1, s. 29 (1), 203 (5)

Question 14

Immediate visit to home
(2) The inspector acting under subsection (1) shall immediately visit the long-term care home concerned if the information indicates that any of the following may have occurred:

Answer 14

1. Anything described in paragraph 1, 2 or 3 of subsection (1) that resulted in serious harm or a significant risk of serious harm to a resident.
2. Any other matter provided for in the regulations. 2021, c. 39, Sched. 1, s. 29 (2).

Question 15

Other matters

Answer 15

(3) If the Director receives information, not provided for in subsection (1), that raises concerns about the operation of a long-term care home, the Director shall have an inspector conduct an inspection or make inquiries into the matter for the purpose of ensuring compliance with the requirements under this Act, if the Director has reasonable grounds to believe that there may be a risk of harm to a resident. 2021, c. 39, Sched. 1, s. 29 (3).

Question 16

Powers of inspector

Answer 16

(4) For greater clarity, an inspector acting under this section may exercise any power of an inspector under section 150, and has the power of an inspector to obtain a warrant under section 151. 2021, c. 39, Sched. 1, s. 29 (4).

Question 17

Other inquiries

Answer 17

(5) If the Director receives information from any source about the operation of a long-term care home, and is not required to have an inspector conduct an inspection or make inquiries into the matter, the Director may disclose the information to another person, including the licensee, or to the Residents’ Council or Family Council. 2021, c. 39, Sched. 1, s. 29 (5).

Question 18

Licensee to be notified

Answer 18

6) If the Director discloses the information to the Residents’ Council or Family Council under subsection (5), the Director is required to provide the information to the licensee. 2021, c. 39, Sched. 1, s. 29 (6).

Question 19

Whistle-blowing protection
30 (1) No person shall retaliate against another person, whether by action or omission, or threaten to do so because,

Answer 19

(a) anything has been disclosed to an inspector;

(b) anything has been disclosed to the Director including, without limiting the generality of the foregoing,

(i) a report has been made under section 28, or the Director has otherwise been advised of anything mentioned in paragraphs 1 to 5 of subsection 28 (1),

(ii) the Director has been advised of a breach of a requirement under this Act, or

(iii) the Director has been advised of any other matter concerning the care of a resident or the operation of a long-term care home that the person advising believes ought to be reported to the Director;

(c) anything has been disclosed to any other personnel of the Ministry, or to any other individual or entity that may be provided for in the regulations; or

(d) evidence has been or may be given in a proceeding, including a proceeding in respect of the enforcement of this Act or the regulations, or in an inquest under the Coroners Act.

Question 20

Interpretation, retaliate
(3) Without in any way restricting the meaning of the word “retaliate”, the following constitute retaliation for the purposes of subsection (1):

Answer 20

1. Dismissing a staff member.
2. Disciplining or suspending a staff member.
3. Imposing a penalty upon any person.
4. Intimidating, coercing or harassing any person.

Question 21

Manner of disclosure, etc.

Answer 21

(2) For the purposes of subsection (1), disclosure may be by any method, such as by making a complaint to the Ministry or by calling an action line where one has been established, subject to any exceptions provided for in the regulations.

Question 22

No retaliation against residents

Answer 22

(4) A resident shall not be discharged from a long-term care home, threatened with discharge, or in any way be subjected to discriminatory treatment because of anything mentioned in subsection (1), even if the resident or another person acted maliciously or in bad faith, and no family member of a resident, substitute decision-maker of a resident, or person of importance to a resident shall be threatened with the possibility of any of those being done to the resident.

Question 23

Interpretation, discriminatory treatment

Answer 23

(5) Without in any way restricting the meaning of the term “discriminatory treatment”, for the purposes of subsection (4) discriminatory treatment includes any change or discontinuation of any service to or care of a resident or the threat of any such change or discontinuation.

Question 24

May not discourage reporting
(6) None of the following persons shall do anything that discourages, is aimed at discouraging or that has the effect of discouraging a person from doing anything mentioned in clauses (1) (a) to (d):

Answer 24

1. The licensee of a long-term care home or a person who manages a long-term care home pursuant to a contract described in section 113.
2. If the licensee or the person who manages the home is a corporation, an officer or director of the corporation.
3. In the case of a home approved under Part IX a member of the committee of management for the home under section 135 or of the board of management for the home under section 128 or 132.
4. A staff member.

Question 25

May not encourage failure to report

Answer 25

(7) No person mentioned in paragraphs 1 to 4 of subsection (6) shall do anything to encourage a person to fail to do anything mentioned in clauses (1) (a) to (d).

Question 26

Protection from legal action

Answer 26

(8) No action or other proceeding shall be commenced against any person for doing anything mentioned in clauses (1) (a) to (d) unless the person acted maliciously or in bad faith.

Question 27

Offence

Answer 27

(9) Every person is guilty of an offence who does anything prohibited by subsection (1), (4), (6) or (7).

Question 28

Complaint to Ontario Labour Relations Board

Answer 28

31 (1) Where a staff member complains that an employer or person acting on behalf of an employer has contravened subsection 30 (1), the staff member may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.

Question 29

Inquiry by Board

Answer 29

(2) The Board may inquire into any complaint filed under subsection (1) and section 96 of the Labour Relations Act, 1995, except subsection (5), applies with all necessary modifications as if that section, except subsection (5), is enacted in and forms part of this Act.

Question 30

Onus of proof

Answer 30

(4) On an inquiry by the Board into a complaint filed under subsection (1), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection 30 (1) lies upon the employer or the person acting on behalf of the employer.

Question 31

Board may substitute penalty

Answer 31

(5) Where, on an inquiry by the Board into a complaint filed under subsection (1), the Board determines that a staff member has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

Question 32

Interpretation
(6) In this section,

Answer 32

“Board” means the Ontario Labour Relations Board; (“Commission”)

“employer”, in relation to a staff member, means,

(a) where the staff member is an employee of a licensee or a person who works at a long-term care home pursuant to a contract or agreement with a licensee, the licensee, or

(b) where the staff member works at a long-term care home pursuant to a contract or agreement between the licensee and an employment agency or other third party, the employment agency or third party. (“employeur”)

Question 33

Obstruction — information to inspectors, Director

Answer 33

32 Every person is guilty of an offence who attempts, by any means, to prevent another person from providing information to an inspector or the Director where the provision of the information is required or permitted by this Act or the regulations.