Planning to arrange for care when for yourself or a loved one when arriving at an age or level of health where assisted living may be necessary can be a complicated process with a number of factors to consider, including the location of a facility, quality and level of services, and of course, cost of care. In Alberta, long-term care facilities, including nursing homes or auxiliary hospitals, have been largely funded by the government. However, facilities are permitted to charge “accommodation charges” to patients. In 2003 the amount of money facilities were allowed to charge was increased. Following that announcement, a class-action lawsuit was brought on behalf of affected residents and led by a non-profit called the Elder Advocates of Alberta Society. The case went through trial and was recently heard by the Court of Appeal of Alberta.

The changes

The amount of money facilities are able to charge residents varied depending on the nature of the care provided. As described by the court, “The daily accommodation charges were substantially increased in 2003: from $28.22 to $39.62 for a ward; from $29.93 to $42.00 for a semi-private room; and from $32.60 to $48.30 for a private room. There have been periodic increases since 2003, and the per diem charges as of July 2016 were $52.65, $55.45 and $64.10, respectively.”

The class action was brought on behalf of long-term care facility residents who paid the increased charges, with the argument being the increase was not authorized by applicable legislation which is designed to limit charges to “accommodation and meals”. The plaintiffs argued that the charges go above and beyond that.

The original trial

At trial, the judge issued a lengthy decision, rejecting the plaintiffs’ interpretation of an “accommodation charge” as only being designed to provide for accommodation and meals, writing,

“… there is no statutory requirement that the accommodation charge have a reasonable nexus to the cost of accommodation and meals. Again, this is not to say that the Alberta government and the Minister are prohibited from implementing a scheme that attempts to create a ‘reasonable’ accommodation charge that is generally related to the actual cost of nursing home and auxiliary hospital accommodation and meals. My conclusion is that there is simply no statutory obligation to do so.”

The court noted that the legislation does not require there to be a reasonable nexus, or connection, between the amount charged and the cost of services provided. Rather, it allows for a maximum charge. Nevertheless, the trial judge concluded there “existed a reasonable nexus between accommodation charges and the cost of providing accommodation and meals”

On appeal

The plaintiffs appealed on a number of grounds, but the meat of their argument rested on what they described as the trial judge’s error in interpreting the relevant legislation. The court agreed with the trial judge’s analysis here, noting that there is “no statutory directive that a (cost recovery) mechanism be used in the setting of those charges.” The court leaned on both legislation as well as testimony from those involved from a policy standpoint, concluding “[o]verall, the trial judge’s detailed review of this complex legislative scheme and the approach taken to cost-sharing demonstrates a clear understanding of the issues. We are satisfied that no error in that analysis has been demonstrated.”

The only area in which the court disagreed with the trial judge was in the original determination that there was no breach of section 15 of the Canadian Charter of Rights and Freedoms since the charge imposes a burden on seniors that is not applied to others who use the health system. The court determined there was a breach, but concluded that it was justified.

At HMC Lawyers we have over 130 years of cumulative litigation experience and have successfully argued thousands of cases on behalf of our clients. Our many years of advocacy informs the thoughtful and practical advice we provide.

The Advocacy Team at HMC Lawyers has litigated successfully on behalf of individual and corporate clients in all manner of commercial and civil disputes, against some of Canada’s largest national law firms.

If you would like to proactively address a potential dispute, contact us online or call 1-800-480-3534 to make an appointment. We advise clients in Calgary, throughout the province of Alberta, and across Western Canada.