Older Canadians try to live as independently as possible for as long as possible. When the time comes that they are no longer able — or decide they don’t want — to live alone in their own homes, many move into assisted-living facilities, essentially renting an apartment that comes with some consumer services and light medical care.

It’s the middle step between living independently at home and entering a long-term care facility, which is highly regulated and has a registered nurse on duty 24 hours a day.

For older Canadians who don’t have high-care needs, assisted living is meant to provide them with the rights and the freedom to live as they wish while benefiting from home-care services and social supports.

But the reality is that older Canadians in these facilities — which include retirement homes — are extremely vulnerable to losing their places when they voice concerns about the way they’re being treated. Consumer protection is sorely lacking in the legislation for assisted living.

The need for assisted-living facilities is growing fast as the population of aging Canadians increases. This gap in our system needs to be addressed quickly and specifically through law reforms, so that older Canadians have the power to raise concerns about the housing and care they receive without fearing they will lose both.

Very little vacancy

There is next to no availability in assisted-living facilities in Canada, which means there is virtually no consumer choice. Many communities have only one facility. If there is more than one facility nearby, they often have close to no vacancies.

Canada’s older-adult cohort grew by 21.7 percent between 2006 and 2016, more than double the rate of increase in the supply of assisted-living facilities, according to a report released in May by DBRS, a credit-rating agency.

It found that these types of properties have an average occupancy rate of 95.1 percent. Those lucky enough to get assisted living will likely do everything they can to stay there. Moving out is not really an option.

With so few facilities, the stakes are high if there is a problem. Older adults must weigh the potential cost of reporting any concerns about the facility or staff. As tenants, they stand to lose their housing and their home care if they make a complaint. The prospect puts them at great risk.

It’s expensive

Assisting-living housing with home-care supports can cost $3,552 a month, according to the DBRS report, and middle-to-upscale retirement homes can charge between $5,000 and $12,000 per month for housing plus services.

By 2014, more than half — 54.1 percent — of rental spaces for seniors in Ontario already cost more than $4,000 a month, the Canada Mortgage and Housing Corporation said in a report, while the average monthly rent for a standard seniors’ living space in the greater Toronto area rose to $4,159 in 2017, up from $3,825 in 2014. In Toronto, Etobicoke and Scarborough, a one-bedroom unit runs an average monthly rent of $4,746, according to the report.

Some jurisdictions — British Columbia, for instance — have minimal provincial housing and care subsidies for assisted living for older adults, but others — such as Ontario — don’t.

Services offered are not protected

Home-care services do not have consumer protection. In Ontario, for example, in the Retirement Homes Act care services are defined as health-care services, rehabilitative or therapeutic services, or services that provide assistance with daily living. Nursing care, bathing assistance, and assistance with dressing and personal hygiene are all included.

According to the Advocacy Centre for the Elderly, recreational or social activities, housekeeping, laundry and assistance with transportation are considered care services only if they are provided along with another care service.

Costs can rise quickly

A residents’ bill of rights in the Retirement Homes Act includes the right to be informed of the costs of care services and any increases. But the act allows prices for care services to be raised more than once annually, provided 90 days’ notice is given and other regulations are met.

A major concern is that a retirement-home provider can legally continue to raise the cost of care services without limit. This lack of consumer protection “means that if a landlord increases care services by an amount that is unaffordable, older adults who rent from retirement homes may be at risk of ‘economic eviction,’ that is, being forced to move because they can no longer afford to stay in their home,” the Advocacy Centre for the Elderly says.

Gaps in consumer protection

Legislation on assisted living in Canada lacks protection in matters covered by contract that are not in the “tenancy” or the “health and safety” buckets. Further, often, due to the essential and the intimate nature of this type of “hands-on” care, residents are often not in a position to complain about quality of care or advance their rights.

The problem was explored at length in a 2008 report by the Canadian Centre for Elder Law.

Significant differences in assisted-living facilities between what is promised and what the reality turns out to be are flagrant examples of the gaps in consumer protection. Advertisements and promotional material might promise gourmet food, elegant spa services, robust lending libraries, engaging social activities and bridge games, when the reality might be poor-quality food, limited hairdressing or barbering, a few paltry paperbacks and bingo.

What is the recourse? Legislation on assisted-living facilities focuses on tenancy rights and health and safety issues. If food poisoning is a possibility because of lax food handling, the legislation can govern and respond. If the food is simply not gourmet as promised in the contract for services, residents must rely on Canada’s consumer-protection laws, which are generally weak, except in Quebec. They only offer the prospect of navigating small-claims courts or other onerous systems.

It is unrealistic to think residents can sue the very place that provides the housing and health and support services they depend upon. That would place them in an extremely difficult position.

It is more likely that their tenancy would be ended, along with their care services. And they would probably not find appropriate and affordable housing close by.

Law reform across the country must infuse consumer protections into the assisted-living legislation, which must then include a method of dispute resolution that is effective, low cost, accessible to anyone with care needs and allows for the relationship between the tenant and the care provider to be balanced.

Time is running out.

This article is part of the Recalibrating Canada’s Consumer Rights Regime special feature.

Photo: Shutterstock, by Jacob Lund.

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Laura Tamblyn Watts
Laura Tamblyn Watts is national director of law, policy and research at CARP. Previously,  she was the senior fellow and national director at the Canadian Centre for Elder Law.

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