An Ontario court has dismissed an appeal by the County of Simcoe to overturn the cease admissions order in place at Sunset Manor long-term care home in Collingwood.
Sunset Manor has been under a new admissions ban since June 2021; the ban was ordered by the Ministry of Long-Term Care after several reports of non-compliance dating back three years and documented in inspection reports.
The order, issued by Brad Robinson, assistant director for the long-term care inspections branch and the director under the Long-Term Care Homes Act, cited his belief there is a risk of harm or well-being of residents because of the home’s history of non-compliance.
When the ban was issued, the county called it “excessive” and filed an application for judicial review with the Divisional Court of the Ontario Superior Court of Justice. The county's core argument was that the director's decision was "tainted" because one of the provincial inspectors was a former manager at Sunset Manor who was fired from her job — and the county alleges she showed a bias and "animus" toward her former employer.
The application was heard in June, and the court’s decision was released this week.
The divisional court dismissed the application for judicial review, ruling that the Ministry of Long-Term Care’s decision to issue a cease admissions order against Sunset Manor was “reasonable."
“We are disappointed in the court’s decision, and although legal counsel has advised that the county has a strong grounds to appeal, county council is choosing not to proceed with an appeal so that the home can move forward and admit new residents as quickly as possible — which is our main goal,” said Warden George Cornell in a statement emailed by the county’s communications team.
Collingwood Mayor Keith Hull said he will be advocating for Simcoe County MPPs to get involved.
Hull, who is a member of Simcoe County council by virtue of his position as mayor, said he has told the county warden to ask the five area MPPs to "directly speak or intervene and work with the Premier to take a look at what is happening here in Collingwood, specifically the 48 beds that remain empty to expedite a process to get these beds open."
Sunset Manor has 148 beds, but only 100 residents currently. It is the only home in Ontario currently under a cease of admissions order.
"What we're saying is enough is enough," said Hull in a phone interview with CollingwoodToday. "We recognize there are compliance issues that have been raised and we are working to rectify those issues."
The mayor said he is confident in the "quality of care" at Sunset Manor, and said he believes the beds should be opened.
"What has been conveyed to me by senior staff and family who have residents there is that Sunset is continuing to operate in a safe manner," said Hull. "The issues being raised ... do not warrant the continued closure of, now 48 beds, and it's time for somebody to intervene."
Hull said he has not personally heard complaints from family members of residents at Sunset Manor regarding the quality of care at the home. He has not toured the home, stating it would be inappropriate to risk exposing the residents to COVID-19.
The county applied for a judicial review on July 8, 2021, one month after the cease admissions order was implemented, asking the province to "quash" the order.
Cornell said the county’s decision to file for a judicial review in 2021 was to “ensure the enforcement body is fair for all homes.”
“The judicial review was aimed at improving that system of oversight for all homes, as well as assisting to reopen Sunset Manor for new admissions to the community as soon as possible,” stated the Warden in an email.
The county raised three main arguments for their appeal.
Firstly, the county suggested the director’s decision to ban new admissions was “tainted” by bias because one of the ministry’s inspectors, Kathryn Harrison, once worked for Sunset Manor and was fired without cause. The county’s court submissions alleged Harrison did not leave on good terms.
The divisional court ruled Harrison’s conduct and status do not “raise the prospect of reasonable apprehension of bias,” and Director Robinson’s decision did not rely exclusively, or even primarily, on Harrison’s inspections as the basis for his decision.
An inspection in April/May 2021, conducted by Harrison and senior inspector, Amanda Coulter, noted 13 findings of non-compliance. As a result, the inspectors issued eight compliance orders and three director referrals.
The county argued that single inspection was the reason for the director’s decision.
“The director appears to have reviewed inspection reports dating back to May 2019,” states the court judgment. “That historical data is replete with instances of significant non-compliance with the [Long-Term Care Homes] Act.”
In the three years prior to the spring 2021 inspection by Harrison and Coulter, various ministry inspectors issued 61 written notifications, 29 voluntary plans of correction, 15 compliance orders, and one director’s referral for findings of non-compliance at Sunset Manor. None of those enforcement actions was taken by Harrison, noted the court decision document.
The findings of non-compliance include incidents of:
- improper care;
- abuse or neglect of residents not being reported to the ministry immediately;
- failing to implement plans to protect residents with responsive behaviours from abuse;
- not ensuring proper management of residents who require a feeding tube or have diabetes;
- not administering medications according to the prescribed directions;
- not immediately treating and/or assessing skin wounds or deterioration;
- not protecting residents from neglect;
- discouraging staff from providing information to provincial inspectors; and
- not providing clear direction for infection prevention and control practices for a resident putting others at risk.
There have been five more inspections at Sunset Manor since the April/May 2021 inspection that Harrison was involved in. The ministry has issued two fines for ongoing non-compliance in the areas of medication management and skin and wound care. Six of eight compliance orders have been deemed in compliance as of the most recent inspection. The cease admissions order remains in place.
The second argument made by the county suggested the ministry denied the county, as operators of Sunset Manor, procedural fairness by issuing the cease admissions order without advance notice or chance to appeal.
However, the Long Term Care Homes Act doesn’t require the ministry to provide advanced notice of enforcement, and the county did get notice of three director referrals that could lead to further enforcement action.
“The temporary refusal to admit new residents protects vulnerable people from entering a potentially hazardous new home,” states the judgment. “Conversely, the invitation to provide updates enables the affected home to engage in a discourse with the ministry such that the applicants’ concerns can be addressed in real time.”
County officials did meet with the ministry on June 1, 2021, prior to the cease admissions order being issued.
“The [county] was afforded ample procedural fairness in that an appropriate balance was struck in the circumstances,” states the court decision.
Thirdly, the county argued Director Robinson’s decision to stop new admissions to the home was unreasonable because the inspection process was “flawed” and “biased.”
The court ruled the director’s decision “exhibited all the hallmarks of reasonableness,” and met the threshold for being “justifiable, transparent and intelligible.”
“Put another way, Sunset Manor understood why it could not accept new residents and that outcome was entirely reasonable,” states the court judgment.
The county argued the inspectors and directors did not properly apply scope and severity in the inspection reports and for the decision to cease admissions.
The court ruled the regulations in the Long-Term Care Homes act are clear, and were followed in this case.
“The decision was reasonable,” states the court judgment.
The county asked the court to “quash” the cease admissions order and award the county the costs for the judicial review.
The Ministry of Long-Term Care asked the court to dismiss the appeal and award the province costs for the judicial review.
The appeal was dismissed and no costs were awarded to either the county or the province.