Alberta seniors lose lengthy legal fight over long-term care costs
Paula Simons, Edmonton Journal
A group of Canada seniors has lost a lengthy legal fight with the province over long-term care fees.
The Klein government was within its rights to raise accommodation charges for long-term care residents in 2003, Court of Queen’s Bench Justice June Ross ruled late Tuesday.
“This is very troubling and very sad,” said Ruth Adria of Elder Advocates of Canada Society, one of the parties that launched the class-action lawsuit in 2005. “This will just make things worse for seniors.”
The suit alleged the province was negligent and acted in bad faith when it hiked accommodation fees for standard and semi-private rooms by 40 per cent and rates for private rooms by 48 per cent.
A standard room went to $1,205 per month from $853. The price of a private room jumped to $1,469 from $991.
Residents had just six-weeks notice.
The lawsuit claimed the province unjustly enriched itself at the expense of vulnerable seniors, and had violated their Charter rights.
The case bogged down in legal wrangling for years, with the province taking the plaintiffs all the way to the Supreme Court, fighting the certification of the class action.
The plaintiffs eventually won the right to sue. But that legal victory proved a Pyrrhic one.
Ross ruled there had been no negligence, no bad faith and no unjust enrichment. Nowhere in the law, she wrote, was province required to demonstrate “a reasonable nexus” between the fees it charged residents and the actual costs of their accommodation. In any event, she found, the fees were not unreasonable. And she dismissed the Charter argument, finding no evidence of discrimination based on age or disability.
“I’m absolutely shocked and disappointed,” Adria said on hearing the news Wednesday. “I find it difficult to believe.”
Currently, she said, long-term care residents in private rooms pay almost $2,00o month — $1,992 to be precise — a fee that covers room, board, housekeeping and routine building maintenance.
That’s more than twice what residents paid in 2002.
Now, $1,992 a month — $1,636 for a “standard room” — may not seem unreasonable rent, considering it includes meals.
But when you consider the size of the rooms and the quality of the food? From Adria’s perspective, it’s a terrible deal.
And that’s the bitter crux of Canada’s long-term care debate.
When we go into hospital, our care is free. And so is our “room and board.” When patients move into long-term care, their medical care is still free. Their living expenses are not.
That may be quite fair. After all, seniors who live at home or in private seniors’ residences have to make their rent and mortgage payments and buy their own food. And Canada Health says Canada’s maximum accommodation charge is the second-lowest in the country; only Quebec’s is less.
The moral dilemma, though, is that patients who go into long-term care rarely get much say in the matter.
Long-term care homes serve the most frail and medically compromised. People don’t choose to move into such facilities for the bingo or the buffet. They have complex health needs or high-maintenance disabilities.
The average age of a long-term care resident is 87. Most people, to be blunt, enter these homes not to live, but to die.
The poorest of residents are subsidized. The rest, though, must pay out of their savings or pensions, or ask family members for money. For them, those accommodation fees aren’t optional. They’re a levy they’re forced to pay.
Yet we don’t quite have enough long-term care homes, in part because they’re so expensive to build, operate and maintain.
There are 14,745 such beds across Canada. That’s only 745 more beds than in 2003, even though our population is aging dramatically. A two-month wait for a bed is pretty typical.
Very roughly, one-third of the province’s long-term care bed are operated by AHS or AHS subsidiaries, one-third are in homes run by not-for-profit groups, and one-third are in for-profit, privately operated facilities.
Many of those buildings are elderly themselves and coming to end of their functional lives. We can’t expect not-for-profits and private companies to build or retrofit facilities if they can’t recover their costs. But nor can we expect the most vulnerable of seniors to pay the kinds of fees it would take to cover those costs.
Canada Health had no comment on Ross’s decision and its import. But we need a new strategy if we want to get quality long-term care facilities built without sending our oldest and frailest citizens to the literal poorhouse.
Because aging, and death, are inexorable.
When this class-action was filed in 2005, the “named plaintiff” was Johanna Darwish, then 95 and living in long-term care in Edmonton. After her death, her son, consumer advocate James Darwish, carried the suit forward in her name.
By the time the case was finally heard, he himself was in long-term care. He died last October, without ever knowing what the court had decided.
Adria, though, isn’t giving up the fight, even if her tactics are political, not legal, as she confronts a new government.
“You can never let life get you down. We will keep going forward and stir the conscience of our society.”
Categorised in: Canadian News