Long Term Care Homes (Trespass to Property)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2295
Page Categories:	Trespass to Property
Citation:	Long Term Care Homes (Trespass to Property), CLNP 2295, <>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2024/06/26

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Trespass to Property Act, R.S.O. 1990, c. T.21

1 (1) In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).

(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1

3 (1) Every licensee of a long-term care home shall ensure that the following rights of residents are fully respected and promoted:

...

6. Every resident has the right to communicate in confidence, receive visitors of their choice and consult in private with any person without interference.

7. Every resident has the right to form friendships and relationships and to participate in the life of the long-term care home.

8. Every resident has the right to share a room with another resident according to their mutual wishes, if appropriate accommodation is available.

9. Every resident has the right to meet privately with their spouse or another person in a room that assures privacy.

...

21. Every resident has the right to have any friend, family member, caregiver or other person of importance to the resident attend any meeting with the licensee or the staff of the home.

Substitute Decisions Act, 1992, S.O. 1992, c. 30

66 (1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith. 1992, c. 30, s. 66 (1).

...

(3) The guardian shall make decisions on the incapable person’s behalf to which the Health Care Consent Act, 1996 does not apply in accordance with the following principles:

1. If the guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction.

2. The guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions.

3. A later wish or instruction expressed while capable prevails over an earlier wish or instruction.

4. If the guardian does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision in the incapable person’s best interests. 1992, c. 30, s. 66 (3); 1996, c. 2, s. 43 (2).

...

(4.1) The guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person’s behalf. 1996, c. 2, s. 43 (3).

(5) The guardian shall encourage the person to participate, to the best of his or her abilities, in the guardian’s decisions on his or her behalf. 1992, c. 30, s. 66 (5).

(6) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. 1992, c. 30, s. 66 (6).

(7) The guardian shall consult from time to time with,

(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and

(b) the persons from whom the incapable person receives personal care. 1992, c. 30, s. 66 (7).

JL v. Empower Simcoe, 2021 HRTO 222 (CanLII)

[1] The applicant is a child. He lives in a group home operated by the respondent because of his disability-related needs. The applicant alleges the respondent contravened his right to be free from discrimination with respect to services under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). More specifically, the applicant alleges that he was discriminated against because of his disability when the respondent imposed visitation restrictions during the COVID-19 pandemic, the effect of which prevented his parents from visiting him.

...

[76] There is no question the applicant, as a person with a disability, is protected under the Code. There is also no question that the visitation restrictions constituted adverse treatment because they prevented or constrained the applicant’s visits with his parents. The issue in this case is whether the applicant’s disability was a factor in the adverse treatment.

...

[103] The Tribunal has followed the Meiorin test in its cases under section 11 of the Code in the services context. See, for example, Abbey v. Ontario (Community and Social Services), 2016 HRTO 787, application for judicial review dismissed, 2018 ONSC 1899 (Div. Ct.).

[104] In this case, the respondent must first establish the purpose of the visitation restrictions. Once the purpose is defined, the respondent must prove that:

• The visitation restrictions were adopted for that purpose.

• The visitation restrictions were adopted in good faith, in the belief that they were necessary for that purpose.

• The visitation restrictions were reasonably necessary to accomplish the purpose, in the sense that the respondent could not accommodate the applicant without incurring undue hardship.

...

[137] It is the respondent’s burden to prove it could not accommodate the applicant without incurring undue hardship and the respondent has failed to meet its burden. The respondent has failed to establish that allowing the applicant’s parents to visit from June to August with no physical distancing in place, but with screening, masking and hygiene followed, would present an unacceptable safety risk to the applicant, his housemate and the staff that worked in the applicant’s group home. The respondent did not call any medical evidence to establish this safety risk and it cannot be presumed by the sole fact of the pandemic. The evidence establishes the respondent had the discretion to apply the guidelines in a non-discriminatory way and it failed to do so.

[138] This finding is based on the facts of this case, which involved a request for accommodation from a child living in a group home with one other child. There will no doubt be different factors to consider in other settings and different conclusions may be reached. The Court’s decision is Sprague is one example.

...

[151] When considering the objective seriousness of the exclusion and the specific evidence of harm on the applicant, the period of time when there was a discernible impact on the applicant, and the context of a global pandemic during which the contravention of the Code took place, I find that $10,000.00 is an appropriate amount in compensation for injury to the applicant’s dignity, feelings and self-respect.

Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)

Landlord and tenant -- Residential tenancies -- Claim for abatement of rent -- Landlord serving notice under Trespass to Property Act on tenant's guest prohibiting his entry onto subsidized rental housing project -- Landlord having right to prohibit person from entering rental project only if person is not an invitee of tenant -- Tenant entitled to abatement of rent for breach of lease and for breach of covenant of quiet enjoyment -- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 23 -- Landlord and Tenant Act, R.S.O. 1990, c. L.7, s. 113(1)(f) -- Trespass to Property Act, R.S.O. 1990, c. T.21.

...

First, I note that the shopping centre trespass cases cited (which are reviewed in Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.)), did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised: Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 S.C.R. 520, 62 D.L.R. (3d) 749. The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.

...

I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.

In conclusion, I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project but only if the person is not an invitee of the tenant.

Canadian Charter of Rights and Freedoms

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

...

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Pasculli v Sharif, 2022 CanLII 106822 (ON LTB)

12. In substance, section 22 of the Act codifies the covenant of quiet enjoyment. The Divisional Court’s decision in Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC) confirms that the covenant of quiet enjoyment includes the right to have guests, including for all or parts of a day or evening and overnight. This decision also confirms that a landlord only has the right under the Trespass to Property Act, R.S.O. 1990, c. T.21 to prohibit a person from entering a residential complex if the person is not an invitee of the Tenant. Pursuant to section 3(1) of the Act, this provision applies despite any other Act and despite any agreement or waiver to the contrary. Pursuant to subsection 4(1) of the Act, a provision in a tenancy agreement this provision is void. In TSL-50289-14 (Re), 2015 CanLII 69070 (ON LTB) a Member of the Board explained:

A landlord cannot dictate to a tenant about their guests or roommate. Rather, a landlord has the right to terminate a tenancy where a tenant permits a guest or another occupant of the unit on the property and the behaviour of the guest or occupant substantially interferes with the reasonable enjoyment of the landlord or another tenant.

See, additionally, TET-98683-19 (Re), 2019 CanLII 87736 (ON LTB), where a Vice-Chair of the Board held: “Tenants are entitled to take in roommates without a landlord’s permission as a result of the right to reasonable enjoyment.”

13. In this case, the Landlord could not rely on the tenancy agreement to restrict the Tenant’s right to have guests and roommates. Any provision in the agreement which purported to give the Landlord this right is void. As the Tenant’s boyfriend had the Tenant’s permission to attend the rental unit and the residential complex, the Tenant’s boyfriend was not a trespasser. In circumstances where the Landlord mischaracterized the Tenant’s boyfriend as a trespasser, sought to restrict his access to the rental unit and threatened eviction if the Tenant failed to comply, I accept that the Landlord’s actions substantially interfered with the Tenant’s reasonably enjoyment of the rental unit.

14. For the sake of completeness, communications from the Landlord and the condominium corporation appear to assert that the Tenant was somehow in violation of the condominium’s by-laws. Although not strictly from the Landlord, a June 26, 2020 memorandum from the Board of the condominium corporation – of which the Landlord is a member – notes that the Landlord has reported that the Tenant’s boyfriend is living in the rental unit “since last many years without the consent of the Landlord”. The memorandum asserts that the boyfriend’s “acts/movements are considered as trespassing the property of the condominium”. Likewise, a June 28, 2020 memorandum from the Board of the condominium corporation asserts that the rental unit has been rented to a second tenant, asserts a violation of the condominium’s occupancy standards and informs that Tenant that she is advised to “take the necessary steps to get the basement vacated from the second tenant as early as possible so that the use of the house in an accordance with Article XII”.

15. Although these letters were issued after the Tenant filed her application, and do not factor in my the above analysis, Article XII states that parcels of tied land shall not be used other than in compliance with the occupancy standards contained in a by-law passed by the council of the municipality in which the land of the corporation is situated and that parcels of tied land shall not be occupied by more persons that the maximum occupancy for each parcel of tied land based on the maximum occupancy for which the parcels of tied land are designed as determined by the Board. No city by-laws or Board determinations were presented. As such, I cannot find that the by-laws provide a defence for the Landlord’s conduct.