EXCLUSIVE: County battles province in court over Sunset Manor

The County of Simcoe has taken Ontario’s Ministry of Long-Term Care to court, appealing the cease of admissions order issued against Sunset Manor in June 2021. 

The county is arguing biased and unfair inspections prompted the ban on new admissions because an ex-employee—who was fired in 2017—was part of the inspection team. 

The province counters that the ban was reasonable and warranted, and that bias had nothing to do with the serious conclusions reached by the inspectors. 

Much of the argument centres around ministry inspector Katy Harrison, who was the director of care at Sunset Manor for 11 years before her employment was terminated.

Court documents obtained by CollingwoodToday.ca reveal the details of both sides of the high-profile case, which was heard by Ontario’s Divisional Court at a hearing last month. Judgment has been reserved, which means a ruling can be handed down any day.

Both the County of Simcoe and the Ministry of Long-Term Care refused to comment on the request for judicial review and would not provide the public court documents. 

The records were obtained by CollingwoodToday.ca from the courthouse in Oshawa.  

The legal battle dates back to June 10, 2021, when Brad Robinson, assistant director for the long-term care inspections branch and the director under the Long-Term Care Homes Act, sent a letter to the County of Simcoe, informing them of the cease admissions order. Simply put, the order means the home can no longer accept new clients because of serious safety concerns—making it the only long-term care facility in Ontario currently subject to such a ban.

As of last month, the county confirmed about 25 per cent of beds at Sunset Manor (37 of 148) are now empty. 

Robinson said the order was based on his belief that there is a risk of harm to the health or well-being of residents of the home or people who may be admitted as residents. He said that belief is based on recent inspections detailing “significant findings of non-compliance” with the requirements of the Long-Term Care Homes Act. 

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. 

On July 8, 2021, one month after the admissions ban was levied, the county applied for judicial review. Their key argument is that the director’s decision is “tainted” by Harrison’s inspection findings, which the county argued showed her bias and “animus” toward Sunset Manor. 

Painting the picture of a disgruntled ex-employee, the county’s court documents include two negative performance reviews, a letter citing Harrison for “willful misconduct” and suspending her for five days without pay, and a letter terminating Harrison’s employment with the offer of a severance package. 

For 11 years (2006 to 2017), Harrison was the director of care for Sunset Manor, reporting to the home’s administrator. The county documents focus on the last two years of her tenure. On May 1, 2015, she was suspended for five days without pay for “insubordination and willful misconduct.” 

Jane Sinclair, Simcoe County’s general manager of health and emergency services since 1998, submitted an affidavit that describes Harrison’s split with the county as “not amicable.”

Harrison admits she defied orders during a staff schedule shuffle, but thought the five-day suspension was harsh. 

“Towards the end of Ms. Harrison’s employment at Sunset Manor, concerns were raised regarding her basic competence as a manager along with an intimidating and unapproachable manner with staff,” Sincair's affidavit states. 

Sinclair claims the county received complaints in 2017 from staff about Harrison’s management style. One claimed Harrison mishandled and didn’t follow up on a complaint investigation involving a resident who had not received timely care during an acute medical situation. 

Other complaints said Harrison poorly managed resident care, was unresponsive to changes in workload and the need to adjust staffing levels, and that she was not appropriately reporting or following up on incidents at the home in her role as a manager. 

“I recall a specific complaint about Ms. Harrison being high-handed with and unresponsive to staff, and on one occasion a complaint about her shutting the door in a staff member’s face after declining to meet with them because she was too busy,” Sinclair wrote in her affidavit.

On March 9, 2017, Harrison was terminated without cause and offered a severance package exceeding the requirements of her employment agreement. 

Sinclair testified she found out in 2019 that Harrison was subsequently hired as an inspector with the ministry of long-term care and was participating in inspections at Sunset Manor. Sinclair promptly complained to the ministry, pointing out that Harrison was fired from the facility and that her history with Sunset Manor meant she “could not conduct a fair and impartial inspection of the home.”

Harrison was allowed to continue inspecting her former workplace.

The province is defending Harrison in court, calling the county’s allegations of bias “spurious and unsupported by evidence,” and arguing the ban was reasonable based on three years of inspections by multiple ministry officials—not just Harrison. 

For her part, Harrison testified that she had “moved on with her life” more than two years after being fired from Sunset Manor, and she had no concerns about inspecting the home in her new role with the province. 

“I do not have any feelings of ill will or malice against Sunset Manor, its management, or its operator, the County of Simcoe,” Harrison said, in her own affidavit. “As a nurse … I received training on overcoming unconscious biases … I hold no grudge against Sunset Manor and was at all times fulfilling my duties as an inspector in good faith.” 

The province confirmed that Harrison’s manager knew she had worked at Sunset Manor prior to the spring inspection report, and the director knew about Harrison’s employment history there since at least July 8, 2021.

“It can be assumed that nothing the director has learned subsequently through this application or subsequent inspections of Sunset Manor by ministry inspections has persuaded him that the direction should be lifted,” states the province’s court submission. 

Harrison was the junior inspector during the April/May 2021 inspection, which was the last before the cease admissions order—and the one the county argues was the primary reason for the admissions ban.

“During the inspection, Ms. Harrison was ‘unresponsive and aloof,’ and ‘curt and demanding,’ to the home’s management,” states Sinclair’s affidavit. 

The county also claims Harrison “intimidated and upset” the home’s director of care by “insisting” the director produce documentation and “standing over her desk until the information was provided.” 

The 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. 

Each finding of non-compliance triggers a written notice from an inspector. Depending on the situation, an inspector may also issue a compliance order. A compliance order is an enforcement tool used by inspectors to point out the non-compliance and tell the home to comply by specifying what action needs to be taken by a certain date. 

The director's referrals—one of the highest levels of enforcement available to an inspector—were issued for non-compliance in the areas of skin treatment, duty to protect, and whistleblowing. 

All were deemed to be “widespread” in the home because all of the instances investigated showed non-compliance, and all were deemed to be an actual risk of harm to residents.

Two of the director referral enforcement actions were taken jointly by Harrison and Coulter and one was issued solely by Harrison. 

A non-compliance can be split into four levels of severity from no harm or risk to serious harm or immediate risk. Level three is actual harm or actual risk, which is a non-compliance by the home that results in a significant change in condition of the resident and/or an actual risk of harm.  

Similarly, there are three levels of scope within the ministry’s inspection matrix: level one is an isolated incident, level two is a pattern, and level three is a widespread issue. An issue of non-compliance is considered widespread if more than 67 per cent of the residents who were the subject of the inspection indicate the home has been non-compliant. 

For example, in the Spring of 2021, Harrison found non-compliance with regulations for skin treatment on all three of the residents she was asked to investigate. She indicated this was a level three severity, level three scope, and also found past instances of non-compliance for skin treatment. 

Inspection and order reports for the two years prior to the April/May 2021 inspections documented 42 instances of non-compliance with the Long-Term Care Homes Act or long-term care home regulations. Of those, 12 resulted in compliance orders, and one resulted in a director's referral. 

Harrison did inspect Sunset Manor prior to the spring of 2021, but had not taken any enforcement actions against the home as a result of those inspections. For one of the inspections, she determined Sunset Manor had complied with two earlier compliance orders.

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. None of those enforcement actions was taken by Harrison, noted the province.

In order for the cease admissions order to be lifted, the county and Sunset Manor must demonstrate that the issues of non-compliance in the areas of incident reporting, duty to protect, nutrition and hydration for residents with gastro-tubes or diabetes, medication administration, skin and wound care, whistleblowing, and clear and updated plans of care have been resolved and meet provincial requirements.

There have been four further inspections at Sunset Manor, none of which were conducted by Harrison, in August/September 2021, in November 2021, in January/February 2022, and in May 2022. The report from the May inspections has not yet been posted. 

In the January/February inspection, there were seven more compliance orders issued for matters including delayed reporting of an abuse allegation by a resident. In this case, police were contacted by the resident’s family after the complaint was made, and the home reported the incident four days after receiving the complaint. 

Another compliance order was issued because the home failed to document when a resident’s foley catheter was removed and reinserted, which put the resident at risk for potential infections or urine retention. 

The inspector issued a compliance order because the home didn’t ensure written protocols for hypoglycemia (low blood sugar) were implemented. There were multiple occasions where a resident’s blood sugar dropped to a level that should trigger treatment under the protocol, but they did not receive the treatment. 

One resident had nine blood sugar readings below the threshold requiring treatment, but for six of the nine events, the resident did not get treatment. Another received the wrong insulin and then was not treated for a low blood sugar reading.

The treatment requires staff to hold all insulin (to prevent further drops) but in some cases, residents were administered insulin even with low blood sugar. Insulin is meant to bring blood sugar down. 

The inspector reviewed the home’s medication incident report summary between Dec. 31, 2021 and Jan. 24, 2022 and found 470 medication incident reports including one instance of the wrong medication administered, two medications not administered, 19 missing signatures, one delivery incident, and 447 medications given at the wrong time.

According to the 2022 inspection, the home continues to be non-compliant in the area of skin treatment. The latest report documents multiple residents with skin breakdown or wounds where assessments were not completed, not immediately treated, reassessments were not done to track the progress of wounds, and in some cases, the wounds got worse and/or the skin deteriorated. 

In total, the latest published report for Sunset Manor includes 12 written notices of non-compliance, five voluntary plans of correction and seven compliance orders issued. 

Following the August and September 2021 inspections, the inspector issued eight compliance orders, 13 voluntary plans of corrections, and 20 written notices, again in the areas of medication, nutrition and hydration, pain, personal support services, infection prevention and control, prevention of abuse, neglect, reporting and complaints, safe and secure home, responsive behaviours, and skin and wound care.

Inspections that occurred in November 2021 resulted in one written notice, one compliance order and one director referral. All three of the enforcement actions refer to medication administration in the home. The inspector found that the home failed to ensure all medication incidents were reported, and that residents were not given medication on multiple occasions because they were sleeping.

“Even if Ms. Harrison’s evidence was to be disregarded, there was still ample evidence to support the director's decision to issue the [cease admissions order],” states the province’s court submissions. 

The county has argued that Harrison didn’t assign proper scope and severity to the incidents she inspected. 

For example, the skin treatment director's referral action was based on three incidents, including a resident with a coccyx wound who did not immediately receive treatment and was only assessed four days after a PSW raised concerns with the nurse. The second incident involved a registered practical nurse debriding a wound (removing damaged tissue) without a physician’s order. And the third was when a hospital did not identify staples on a head wound to a resident and no skin or wound assessment was completed by the home for five months. 

The county argued that Harrison didn’t look at any other people who suffered wounds at Sunset Manor and who received treatments. They suggest it’s unfair to call non-compliance widespread if it’s only based on three complaints. 

The same argument was made regarding findings of non-compliance with care plans. 

“The inspectors did not look at the hundreds, if not thousands, of separate interactions staff have with residents each day implementing resident care plans,” states the county’s court submissions. 

Sinclair also notes in her affidavit that the staff at Sunset Manor administers 1,550 medications per day to its residents.

The province argued the evidence demonstrated the inspectors followed ministry policy and took a proper sample of residents to determine the scope of the non-compliance, considered the severity of the non-compliance for each finding, and properly assessed the harm or risk of harm arising from each non-compliance. 

According to the ministry, enforcement of non-compliance for skin and wound care and the duty of the home to protect were upgraded to a director's referral status because they had “such poor compliance history.”

Whistleblowing issues arose for the first time during the April/May 2021 inspections, but because there were so many, both the inspectors and their manager deemed it warranted a director's referral. 

According to the province, one of the “key complainants” for the April/May 2021 inspection was the home's medical director and physician who worked at the home for close to 25 years. 

They reported concerns in-person to the inspector suggesting “systemic issues” had resulted in actual harm or risk of harm to residents. 

“The medical director has been quite clear that they are concerned for the well-being of residents in the home, and there needs to be a change before something even more egregious happens,” states the province’s court documents. 

The county has asked the court to “quash” the cease admissions order and award the county the costs for the judicial review. 

The province is asking the court to dismiss the appeal and award the province costs for the judicial review. 

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Sunset Manor opened Sept. 15, 1969. There are five resident care units in the home ranging from 24 to 35 beds per unit, though one unit is closed because of the admissions ban.

There are beds for 148 permanent residents and two short-term, respite care beds. About 60 per cent of the beds are in private rooms with an en-suite bathroom and the remaining rooms have two beds and a shared washroom. 

According to Sinclair’s affidavit, based on the age and health conditions of most residents, the current rate of four or five resident deaths per month, and the admissions ban remaining in place, Sunset Manor will have fewer than 40 residents in two years’ time. 

She said there are 334 people in need of long-term care on the waiting list. 

Sunset Manor was also issued a mandatory management order on June 10, 2021, requiring the county to hire new management and have the new hire vetted and approved by the ministry. 

The county confirmed last month Sherry Bell accepted the job as full-time administrator for the home as of May 2, 2022. Bell was the interim administrator for the home in 2021 when the cease admissions order and mandatory management order was issued. 

The county operates four long-term care homes in Simcoe County, including Sunset Manor, Simcoe Manor (Beeton), Georgian Manor (Penetanguishene), and Trillium Manor (Orillia). 

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The Ontario Ministry of Long-Term Care did provide information on the last five years of cease admission orders issued by the director. 

The order is effectively a ban on any new residents being admitted to the long-term care facility until the director for the long-term care inspections branch lifts the order.

According to the Long-Term Care Homes Act, a director can issue a cease admissions order if he or she believes there is a risk of harm to the health or well-being of residents of a long-term care home or to people who might be admitted as residents. 

There are about 630 long-term care homes in Ontario caring for approximately 115,000 residents. 

Over the last five years, the ministry has issued 12 cease of admission orders, and they have lasted between 2.5 months to two years. 

The most recent cease admissions order was issued July 30, 2021 to Perth Community Care Centre, and it was lifted on December 16, 2021. 

The longest cease admissions order was issued on Oct. 28, 2019 to Creedan Valley Care Community in Creemore and it was lifted on October 1, 2021. 

Only Sunset Manor remains under an admissions ban. 

Here’s a complete list of cease admission orders issued since Jan. 1, 2017.