Nursing Home and Long-Term Care Neglect Claims in Ontario

What these claims usually involve

Concerns that come up in these claims include:

• Pressure ulcers (bed sores) that developed or worsened
• Falls, especially repeated falls
• Dehydration and malnutrition, which weight and intake records may show
• Medication errors, such as the wrong drug, wrong dose or missed doses
• Unexplained injuries, such as fractures or bruising
• Harm from another resident
• A resident leaving the home unsupervised
• Infections that were not treated promptly

Whether any of these reflects neglect or a failure to meet a legal duty is a question of fact and, for medical questions, of medical evidence. A poor outcome in a frail resident is not automatically a legal wrong.

Two routes to liability

1. Negligence. A claim can be framed as a failure to take reasonable care. The tests courts apply are found in judicial decisions, which are outside the scope of this guide. A lawyer can explain how they would apply to a particular home and resident.

2. The Residents' Bill of Rights. Section 3(1) of the Fixing Long-Term Care Act, 2021 lists resident rights in a long-term care home. Among them are freedom from neglect (by the licensee and staff), proper accommodation, nutrition and care suited to the resident's needs, and a safe, clean living environment. Section 3(3) lets a resident enforce these rights against the licensee as if they had agreed a contract.

Separately, section 24(1) of the Act requires each licensee to guard residents against abuse by anyone, and to make sure neither the licensee nor its staff neglects them.

The Bill of Rights route looks to whether the listed rights were respected and promoted. Whether a particular fact situation breaches a listed right is for a lawyer, and ultimately a court, to assess.

What records and evidence matter

Documents a lawyer would typically want to see:

• The plan of care, and whether the care it describes was delivered. The Bill of Rights includes a right to take part in developing and reviewing it.
• Charting and repositioning records, where gaps may be significant
• Weight and intake records over time
• Incident reports and any internal investigation. Under section 27, a licensee must investigate every alleged, suspected or witnessed incident of abuse or neglect that it knows of, take appropriate action and report the results to the Director.
• Staffing schedules
• Wound care records and photographs
• Inspection reports. After an inspection, the inspector prepares a report (s. 152), and the Act directs the Director to publish inspection reports (s. 180).
• Family notes and photographs, dated if possible, from visits

Who is responsible

Whether the facility is a long-term care home or a retirement home changes the legal framework, so identifying it comes first. The Retirement Homes Act, 2010 has its own Residents' Bill of Rights (s. 51) that a resident may likewise enforce against the licensee as though by contract (s. 51(3)). Its definition of "retirement home" excludes premises governed by the Fixing Long-Term Care Act, 2021.

What a claim can include

What can be claimed depends on the facts, the evidence and the law. Categories that commonly arise include:

• Compensation to the resident for harm suffered
• **Family claims under the Family Law Act.** Where someone is hurt or killed through another's fault or neglect, section 61 lets close relatives (spouse, children, grandchildren, parents, grandparents, siblings) recover their own pecuniary loss. The damages may include expenses incurred for the injured person, travel costs for visits, the value of care services the claimant provided, and an amount for the loss of guidance, care and companionship the claimant might have expected (s. 61(2)).
• Out-of-pocket costs, such as equipment or additional caregivers
• Future care needs, if the resident survives with greater needs

Whether any further category of damages, such as punitive damages, could apply is for the court to decide and depends on the evidence.

If the resident has died, the Trustee Act (s. 38(1)) allows an executor or administrator to maintain an action for torts or injuries to the person or property of the deceased. It also provides that no damages are allowed for the death itself or for loss of expectation of life where death results from the injuries, and preserves rights under Part V of the Family Law Act. Which claims remain, and who brings them, should be confirmed with a lawyer.

Steps people commonly take

1. Requesting the clinical record in writing. The resident has a right of access to their health information under the Act (s. 3(1), para. 19).
2. Keeping dated notes and photographs of injuries and conditions.
3. Raising concerns in writing. A licensee must have written procedures for complaints, including information about complaining to the Ministry (s. 26(1)).
4. Reporting concerns about harm. Section 28(1) requires anyone with reasonable grounds to suspect improper or incompetent care, abuse or neglect that caused harm or a risk of it to report to the Director. An inspection creates an official record (s. 152).
5. Having a lawyer review any document the home asks a family to sign about an incident.
6. Asking a lawyer about time limits (see the next section).

Time limits

Under section 4 of the Limitations Act, 2002, a claim generally must be started within two years of its discovery. Under section 5(1), discovery occurs on the earlier of the day the person actually knew the key facts and the day a reasonable person in their position should have known them. Section 5(2) starts from a presumption that those facts were known when the act or omission happened, unless the claimant proves otherwise.

Section 7 pauses the two-year period while a person cannot start a proceeding because of a physical, mental or psychological condition and has no litigation guardian. That may matter for residents with cognitive impairment. A different outer limit of 15 years runs from the act or omission (s. 15(2)), also with exceptions (s. 15(4)).

How these rules apply to a resident, or to a family member's own claim, depends on the circumstances, and a lawyer can confirm the position promptly.