Daughter pushes back on trespass notice at father's Ontario long-term care home
Advocates say notice was issued in retaliation for reporting concerns at facility
A long-term care home in Peterborough, Ont., served a woman whose father is a resident with a trespass notice after alleging she harassed staff, but she says it is in retaliation for reporting her concerns about the facility to Ontario's Ministry of Long-Term Care.
"I opened it and I saw the words 'notice of trespass,' and [it] said, you can't enter. And I think I only read the first few words and I just burst into tears," said Diane Tamblyn, whose father, John Bedborough, 87, moved into St. Joseph's at Fleming, a not-for-profit long-term care facility, in August 2021. "It's retaliatory, that's all it is."
The care home served Tamblyn with an official trespass notice on March 4, restricting her access to the facility between 9 a.m. and 6 p.m. each day, limiting her to two visits per day and preventing her from accessing other parts of the care home outside of her father's room. The notice said contravening the trespass order is punishable by a fine of $2,000.
Advocates for families who have loved ones in long-term care facilities say Tamblyn's experience is another example of how the Ontario government needs to deal with the use of trespass notices in such cases — an issue that was acknowledged a year ago in the provincial legislature with unanimous support but no real legal power.
Mask-wearing, response times among concerns
In a written statement to CBC News, St. Joseph's at Fleming CEO Carolyn Rodd said she could not comment on the matter because the workplace harassment complaint process and investigation are ongoing.
"Diane has full access to her father and can visit him every day if she chooses," Rodd said.
Tamblyn said that the Ministry of Long-Term Care "puts up a poster that says, 'Are you concerned about care? Do you see abuse or neglect?' It says, 'Report it, it's the law.' So I report it, but then look what happens."
When her father initially moved into the home, Tamblyn said management was responsive to her concerns.
"I would mention them and they would either try to do something to make it better, but then it would slip back off the radar again," she said. Both Tamblyn and the home say they spoke many times over a period of months to discuss her concerns.
Tamblyn said she grew increasingly worried about her father's care when he continued to have falls. She was also concerned that staff were not being responsive when he rang the call bell. Her father has Parkinson's disease, heart disease and cancer.
"There were so many times my dad was waiting over an hour to get his call bell answered. Things like that were breaking my heart," she said.
"They [management] looked at me as some sort of a whistleblower, constantly pointing out their flaws," Tamblyn said. "There's no pleasure in being that person, constantly pointing out the errors that were taking place in the home. All it did was put a target on me, and at that point, the relationship just fell apart."
Tamblyn eventually filed her complaints with the ministry on Nov. 30, 2021, just as the Omicron wave of the coronavirus pandemic began its massive surge. That triggered an official investigation.
"We were very worried at the time because ... my husband and I would continually see the staff not wearing masks in the home, in my dad's room, in the dining areas, everywhere in the building," she said.
In December, Tamblyn installed cameras in her father's room so she could monitor his safety for herself. She ended up recording staff not wearing masks or not wearing masks properly; capturing a bad fall when her father reached for his walker, which was not positioned close enough to him; and recording long waits after her father rang the call bell.
In one video, Tamblyn said he appeared to sign a message to the camera while waiting nearly an hour for someone to come and help him. She and her husband say he was spelling the word "HELP."
Ministry found several violations
The ministry's inspection of the home notes several violations in three reports published earlier this month. Among them, it found a failure to follow a plan of care for a resident prone to falls, and numerous deficiencies with the staff-resident communication system and infection control protocols.
Around the same time the reports were made public in early March, Tamblyn was served with the trespass notice. It alleges that the care home is investigating "multiple complaints regarding inappropriate behaviour and communication directed towards staff and other residents." The notice also states that Tamblyn's behaviour continues to "push the limits of a reasonable person."
Tamblyn said she doesn't know the details of the allegations and that an investigator hired by the home has not been in touch with her. The letter accuses her of using the home as her own personal COVID-19 testing facility, a charge she denies.
She said she believes the complaints against her may have been triggered by her decision to install cameras in her father's room. She also acknowledges that she has spoken to staff about wearing masks.
"I've been vocal in the home about staff walking in without wearing masks during outbreaks and said, like, 'You're not wearing your mask' and stuff like that. That's all I can think that it could be," she said.
On Wednesday, Tamblyn said she decided to flout the notice and attend a family council meeting in a part of the care home she is barred from entering. She anticipated being ticketed and escorted from the building by police, but instead she was allowed to remain for the meeting.
Voula's Law backs rights of caregivers
Maria Sardelis, an advocate who successfully fought her own trespass order in her mother's Ottawa home, supports Tamblyn's stance.
"The homes use it as a dispute resolution tool. So they threaten you with trespass in order to resolve issues or to ignore issues that they don't want to deal with. It's effective because people don't know their rights," she said.
Tamblyn, Sardelis said, is the fourth person she's heard from this week facing a trespass notice and estimates she's heard of 50 to 60 other cases over the last year and a half. CBC's Marketplace has reported on others, including Sardelis's case.
In March 2021, the Ontario Legislature unanimously passed Voula's Law, named after Sardelis's mother. While not legally binding, it expressed widespread support for the notion that care homes should not be allowed to bar families from seeing their loved ones.
The motion, introduced by New Democrat MPP Joel Harden, asked the Ford government to "provide clear direction to operators that the Trespass to Property Act does not permit them to issue trespass notices to exclude substitute decision-makers and guests of the occupants of retirement homes, long-term-care homes, and other congregate care accommodations when they raise concerns about their loved ones' living conditions."
Sardelis and Harden, who represents Ottawa Centre, attended a small rally outside St. Joseph's on Wednesday to support Tamblyn when she contravened the notice by attending the meeting at the home.
"It [Voula's Law] says that trespass orders should not be used when family members are making reasonable complaints about the living conditions of their loved ones," Harden said outside the home.
The passage of the motion was designed to open the door to the provincial government making legislative changes like an amendment to its visitation policy to clarify the rules to all care homes and give Voula's Law the force of law, Harden said.
"I have not seen any action whatsoever," he said.
Bureaucracy isn't the only obstacle to giving Voula's Law teeth, according to Harden.
"I believe it's the industry," he said. "I absolutely 100 per cent believe it is a very powerful industry."
Home's staff 'retrained' on infection prevention
Tamblyn calls trespass notices a bullying tactic meant to silence people and said it has had a chilling effect on other family members speaking up about their concerns.
"People are afraid. They're afraid to speak up because [of] the retaliation," she said.
In an email to CBC News on Thursday, a spokesperson for the Ministry of Long-Term Care said it can't comment on specific cases and noted that "current legislation does not set out requirements related to trespass orders, however, homes do have the discretion to prohibit a visitor in response to repeated and flagrant non-adherence with a home's visitor policy and where a visitor's behavior may impact the home's ability to ensure a safe and secure home."
While Carolyn Rodd of St. Joseph's said she couldn't comment on the trespass notice issued to Tamblyn, she said, "We appreciate the information shared with us about mask incidents in the past."
Rodd said the entire staff "retrained on infection prevention and control."
"We are very grateful to Diane for sharing information regarding the call bell. We immediately undertook an internal investigation, and it was clear that the call bell in her father's room malfunctioned. SJF is in the process of updating the call bell system for every room to prevent this from happening again."
Tamblyn said she is going to continue to push back on the trespass notice. She also urges others to place cameras in the long-term care rooms of their loved ones.
"The cameras show me who's amazing and who's very kind and caring to my dad, but it also shows the not good. You see it all. You can't hide."
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