Know when a residence is an hébergement

Joyce Blond Frank

November 2011

Certification for residences for the elderly is about to change. The proposed law hopes to tighten up the process.

The office of the ombudsman of Quebec, as the final recourse in the complaint procedure under the Act respecting health services and social services, reports that the ombudsman has processed 365 complaints since 2008, of which 89 per cent concerned seniors’ residences. He states that 45 per cent of these were related to lack of access to physical facilities, equipment not in working order, food quality and staff competence. Another 45 per cent were about abuse, inadequate sanitation, safety measures, threats and harassment. The balance concerned financial matters.

Looking at these figures, I was motivated to look into what constitutes a seniors’ residence from a legal point of view and this revealed some interesting situations.

Private residences for the elderly provide lodging as well as a wide range of services, such as meals, domestic help, personal and health services, security, and supervision. They require a certificate of compliance issued by a health and social services agency. This certificate was made obligatory in 2009 by a Quebec government regulation that provides rules that the residence must follow. One of those rules is that: “The resident and the resident’s close relatives must be treated with courtesy, fairness and understanding, and with respect for their dignity, autonomy and needs.” Does this imply that the regulation does not apply to establishments whose tenants may only be partially autonomous? We know that there are many people who are capable and autonomous for the most part but whose security may be compromised by continuing to live alone and unsupervised.

This issue has arisen in another form, namely that of being able to provide a three-month cancellation notice to a landlord to move out and into a seniors’ residence.

The three-month notice provision is found in the Civil Code of Quebec, which permits an elderly person who goes permanently into a “foyer d’hébergement” to cancel his lease upon giving three months notice. The term “foyer d’hébergement” has not been defined by the law and has been interpreted by the courts in two different ways.

One interpretation is that it applies only to a place that houses, helps and supports a person who is not completely autonomous or is restricted as to mobility or independence; the other interpretation is that it offers shelter and assistance to older people who require some support because of their age. Autonomy is not a determining factor.

In a recent case, the landlord contested the validity of the three-month notice before the Rental Board. The board had to decide whether the tenant was moving into a seniors’ residence or a “foyer d’hébergement.” It was decided that even if certain other services were available, because the resident was autonomous it was not a “foyer d’hébergement” and the three-month notice exemption to cancel a lease did not apply. It based its argument on the fact that the services provided a certain amount of comfort and quality of life but were no different from those offered in a luxury residence for seniors. To fall under the definition of “foyer d’hébergement,” it had to offer security and supervision as well as medical, nursing, readaptation, psychosocial and pharmaceutical services to persons without full autonomy.

Even if only one service, apart from lodging, is offered, a residence for the elderly is entered in the register of the health and social service agency and must be certified. The new regulation is attempting to define a seniors’ residence by the services offered, but at the time of this writing, that is still a work in progress. Should the law prove too restrictive, the certification process may be affected to the detriment of residents who will then not be protected by regulations relating to safety of the premises, qualifications of the workers and adequate supervision.

The regulation for obtaining a certificate of compliance provides that a new resident must receive, in writing, a list of all services offered plus their cost or, where applicable, “an indication that the residence offers no personal assistance service.” Included in these services are personal hygiene, eating aid, mobility aid, transfer aid and distribution of medications. Those entering a seniors’ residence sign the usual Rental Board lease and, where applicable, a mandatory schedule setting out the extra services to be provided owing to the tenant’s personal condition, including age or handicap.

However, when a disagreement or problem occurs, the wheels of justice tend to move slowly and there is no provision in the projected law for a situation where contracted services offered by the residence are changed or reduced or even if the residence closes. A resident receiving nursing services or food services cannot wait for a hearing before the Rental Board. Hopefully the new law will provide some measures to cover this problem. Meanwhile, protect yourself when choosing a residence by consulting an expert who will be able to advise you on the services, stability and reputation of the residence best suited to your needs.