Bakerlaw has been working to import the “Olmstead principle” into Canadian human rights law (for an earlier post on the issue click here (link to post). In the Olmstead case, a U.S. court held that it was discriminatory to place people in institutions when they could receive the care they required in the community (for more information read the Olmstead case here (link to case) or visit the Bazelon Centre website (link to website)).

Canada has not yet implemented this principle. In Ontario, while the government has worked to close many institutions, it has not provided the necessary care in the community to prevent reinstitutionalization.

The Ontario government has limited the home care it will provide by placing “caps” on certain types of services. Bakerlaw is currently representing a client whose care needs exceeds the cap on nursing services. As such, his family had been forced to pay privately for additional care. This was a financial burden for our client’s family and placed him at risk of institutionalization.

Recently, the Ontario Government has amended this cap and increased the amount of home care services allowed for each individual. For example, the number of nursing visits that an individual can receive has increased from four per day to five per day. While this does not solve the problem, nor bring Canada in line with the United States’ jurisprudence, it is a step in the right direction.

With the amended regulation in place, we anticipate that the Government will be applying to dismiss our case on the grounds that it is now “moot” or has been dealt with by the changes to the regulations. Bakerlaw and our client believe there remain live issues to be adjudicated – including the question of whether unnecessarily institutionalization is discriminatory – and we are prepared to continue with the case until the issue is fully resolved.