Trespassing Invited Guests is Unlawful
Residents/Occupiers' Rights to Have Visitors
Who can trespass a visitor from a seniors' or disabled persons' care facility??
According to the Trespass to Property Act (TPA), only the occupier can trespass a visitor. Seniors and disabled persons have the right to see their friends and family, and family and friends have the right to be invited to see them. Know your rights:
Three things we need to protect family advocates from unlawful banning and trespass:
- Police officer training on the TPA pursuant to our Social Justice Tribunal, Ontario Courts and the Supreme Court of Canada TPA interpretation of occupier.. Seniors and disabled persons are people who must live in multi occupier facilities where they pay for accommodation and at times, services to meet their everyday needs due to age, long term illness, developmental challenges or combination thereof; and
- Application of the Residential Tenancy Act (RTA) to Long Term Care (LTC) homes; and,
- Understanding private property ownership in the context of multiple occupancy buildings.
The TPA is perfectly written but needs proper enforcement. Currently across Canada the TPA*** is being misused and abused to punish and silence and instill fear in family advocates of seniors, disabled children and adults.
Government LTC facilities, whether non profit or for profit, retirement homes and group homes provide a 'home', a permanent residence to those paying and living in their building. The resident occupiers pay an accommodation fee in return for safe habitation and enjoyment of their home. The operator/owner is considered a landlord and the resident is considered a tenant/occupant.
Private Retirement Homes (private ownership and non government funded)
Private retirement homes fall under the The Residential Tenancy Act 2006, which provides the regulations when operating under a Landlord and Tenancy relationship.
The right for occupants/tenants to receive guests of their choice, RTA Sections 22, 23, are cited in case law and the rights to have visitors is vehemently upheld. Choice, and the right to make personal choices is Charter of Rights and Freedoms protected.
Case laws consistently uphold the rights of occupants/tenants to receive guests of their choice and provide a clearer definition of what is and is not considered trespassing.
Interestingly, the courts have ruled behavior, being vulgar, beligerant or uncooperative is not grounds for trespass. Disturbing the peace is a criminal code misconduct and can be properly charged pursuant to Section 175(1) of the Criminal Code. Thankfully, evidence of the alleged behavior will have to be provided. A Peace Bond or charge of Mishief, Section 430 (1)(d) is also an option to address behavior..
In many cases, the Landlord and Tenant Board awards the tenant financial compensation (damages) for the unlawful restriction of visitors. Unfortunately, the RTA does not currently apply to LTC facilities.
Long Term Care Homes (government funded).
The Fixing Long Term Care Act, 2021 has as its fundamental principle that a LTC home is, “primarily the home of its residents”. The Residents’ Bill of Rights enshrines:
- Every resident has the right to communicate in confidence, receive visitors of his or her choice and consult in private with any person without interference.
Complaints in LTC non profit and for profit are homes are reviewed by the Ministry of Health and Long Term Care (MOHLTC). Non compliances are issued a Compliance Order 'requesting' compliance. A home can be written up several times for the same non-compliance.. If the RTA applied to LTC, the Landlord and Tenant Board would provide binding decisions on violations within the tenancy rights of residents.
(Note: it is not well known that there is a case where the MOHLTC took the position that only the occupant can decide on the restriction of visitors. No. 2015_323130_0004, Log No. H001830-15, Resident Quality Inspection of Grace Villa Limited, London, May 14, 2015, Order No. 1, online: http://publicreporting.ltchomes.net/enca/File.aspx?RecID=12499&FacilityID=20214)
The RTA could apply to LTC.
Subsection 2 (1) of the RTA defines a “care home” as a residential complex that is occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy. It would not be a stretch to have this definition apply to LTC.
LTC needs to be governed by RTA. It would provide a level of accountability not within mandate of MOHLTC. RTA section 3(1) states that it applies to all residential complexes despite any other Act or waiver or agreement to the contrary. This section alone provided implicit governance of LTC by RTA in my opinion..
http://www.sjto.gov.on.ca/documents/ltb/Brochures/Care%20Homes%20(EN).html
Being Charged with Trespassing
Trespassing is an offence if you are entering the premises without legally conferred authority (POA, SDM or Legal Guardian) or without the invitation of the occupier. Care facilities rely on people's ignorance of the laws and fear. But an unlawful trespass charge is not something to be feared. Similar to a speeding or parking ticket, which you are more likely to be rightfully ticketed for, you have the right to fight the trespass ticket in court. IF you lose your trespass case, and are officially charged with trespass, then there is a fine of approximately 60-75$. Being issued or charged with trespass, like a parking ticket, is a civil code misconduct, not a criminal code misconduct and does not result in a criminal record.
As I personally experienced, breaching the verbal trespass issued to me by City View Retirement Home was the only way to have my full rights restored to visit my mother. A court justice withdrew my charges when my legal authority (POA) was presented in court. In my opinion, the more cases of unlawful trespass brought before a judge, the better for all advocates and their seniors. If we're lucky, a judge will demand the training of police on proper TPA enforcement .
What to do When Banned or Trespassed
If you have been banned or trespassed from a private retirement home:
- Contact Retirement Home Regulatory Authority (RHRA)
1-855-ASK-RHRA (1 855 275-7472) and file complaint https://www.rhra.ca/en/information-for-retirement-home-residents/reporting-harm/
- Contact Landlord and Tenant Board Toll free: 1-888-332-3234 or: 416-645-8080, fill out T2 form http://www.sjto.gov.on.ca/documents/ltb/Tenant%20Applications%20&%20Instructions/T2.pdf
- Call the Ontario Ombudsman 1 800 263 1830 and
contact the Office of the Independent Police Review 1 877 411 4773. Call your MPP!!
You can also call your local provincial court house and ask for an expedited date for your hearing due to age and mental impact on your senior.
If you've been banned or trespassed from LTC home:
- Contact MOHLTC and hope for the best. If you decide to challenge the visitation restriction with LTB, let me know! http://www.health.gov.on.ca/en/public/programs/ltc/31_pr_inspections.aspx.
For knowledgeable legal assistance contact Daniel Nasrallah, DNG Law: 613 523-6277 or [email protected].
Private Property as Excuse for Trespass
Finally, let's look at the private property rationale often used to trespass family/advocates.
LTC facilities are publicly funded. Need I say more. But like retirement homes, the for profit owners are not physical possession occupiers, they are.deed possession owners.
According to our Courts and Tribunal case laws, it is the private propery of the physcial occupier for the durantion of the occupancy. The occupier becomes the 'possession' owner and fortunately, possession is still 9/10ths of the law. The deed owner runs a busines and collects accommodation fees from the occupiers.
In the case of private retirement homes, additional restrictions on the title owner's property are imposed via the licensing agreement to operate the retirement home as a business (RHRA). Various Acts (Residential Tenancy Act, Retirement Homes Act) and Landlord and Tenant Board tribunals uphold the unfettered right to full enjoyment of the private property the occupier pays to occupy.
Subsection 2 (1) of the RTA defines a "tenant" as:
"tenant" includes a person who pays rent in return for the right to occupy a rental unit…..but "tenant" does not include a person who has the right to occupy a rental unit by virtue of being, a co-owner of the residential complex in which the rental unit is located, or a shareholder of a corporation that owns the residential complex.
In all common law provinces and the territories, the 'physical possessor owner" decides on the right to exclude right of entry with trespass.
In short, the retirement home facility is not ' private property' of the business owner. It is a multiple occupancy residential facility offering a 'home' to those paying a fee and only the paying homeowner decides who visits their home.
The legal question isn’t what you “own” but what you have the right to do with it.
The Supreme Court of Canada understanding of property contained within Canadian Pacific Railway v Vancouver (City) is compatible with the existing jurisprudence on this topic: one of the important property rights—according to the Court—is the right to exclude. Canadian property jurisprudence suggests that an owner’s authority is lost with the loss of the right to use and the right to exclude. RTA, LTB, etc., give exclusionary rights to the physical occupant, the tenant.
Notably, the Court seems to discount the idea that the right to set the agenda is essential to ownership, or even a property right at all. For instance, a retirement home has to meet and take a vote on matters that affect all the residents within the building.
Additional Information re: unlawful to trespass visitors
https://stepstojustice.ca/questions/housing-law/can-my-landlord-stop-me-having-guests
*** TPA MISUSE AND ABUSE ACROSS CANADA (examples)
http://elderadvocates.ca/trespass-notices-restriction-of-visitors/
https://calgaryjournal.ca/news/2764-families-of-seniors-banned-under-trespass-and-premise-act.html
https://www.pialberta.org/banning_family_members_from_seniors_care_facilities_is_illegal
https://hullandhull.com/tag/trespass-orders-long-term-care-homes/