29 Mar An Overview of Class Actions and COVID-19 in Ontario’s Long-Term Care Facilities
Written By: Jordan Assaraf, Personal Injury Lawyer
*The full article was initially published in The Canadian Class Action Review: Volume 16, Issue 2*
This article examines the complex considerations that confront those pursuing class-action lawsuits against owners and operators of Ontario’s LTC homes in response to the pandemic’s devastating impact on the residents of those facilities and their families. An overview of the contexts and circumstances in which Ontario’s LTC facilities responded to the pandemic is presented. By identifying and examining several critical issues associated with the operation of LTC residences, the discussion aims to provide a more informed and nuanced appreciation of some of the obstacles confronting plaintiffs. The interaction of historical, political, economic, and social considerations associated with the operation of Ontario’s LTC homes attests to the complexity of the contexts and circumstances in which the duty and standard of care in those facilities during a pandemic must be assessed. The challenges involved in establishing causation related to deaths in LTC homes are especially difficult due to the “complex, multifaceted, and polycentric” nature of its systemic problems, as well as residents’ age and frailty. A discussion of the dramatically altered legal landscape in Ontario due to the government’s recent legislative initiatives examines the issue of certification and the retroactive imposition of what appears to be a prohibitive standard of negligence.
Excerpts from the Full Article
- While there is no doubt that the public outrage about conditions in LTC facilities is based on compelling prima facie evidence of their owners’ and operators’ abject failures to fulfill their duty of care and, at least in some cases, to meet to their standard of care, the challenges facing those pursuing proposed class actions as a remedy for alleged negligence are formidable.
- According to the Ontario Health Coalition (OHC), at least two dozen legal actions had been commenced in Ontario by mid-September, in response to the spread of the virus within LTC residences during the pandemic’s first wave. While the majority of those cases involve class actions against corporate owners of LTC facilities, there has also been a class action against the Ontario government, as well as the Ontario Nurses’ Association’s success in seeking an injunction.
- Without diminishing the very real difficulties involved in providing for LTC residents, as well as the challenges resulting from the ease with which the coronavirus spreads, we can acknowledge that there is overwhelming evidence that the Ontario government and a substantial portion of the province’s LTC homes have failed to protect the residents of those facilities. The initial outbreaks in LTC residences sparked widespread fear — especially among those with family members in seniors’ homes. When the premier announced, on 22 April 2020, that he was seeking military assistance, and troops were deployed to five LTC residences two days later, the severity of the situation was undeniable.
- However, with the 26 May release of the Canadian Armed Forces report — which detailed the appalling conditions in the LTC homes where the military had been assigned to provide assistance — public outrage was galvanized. In addition to critical staffing shortages and lack of PPE, the report described bug infestations, force-feeding of residents that resulted in them choking, residents suffering from “bleeding fungal infections”, and residents “crying for help” and waiting unattended for up to two hours.
- In attempting to understand the origins and underlying dynamics of the COVID-19 crisis in LTC, three topics merit closer inspection: 1) Ontario’s focus on preparing for the pandemic in hospitals rather than LTC homes; 2) the differences in viral spread and death rates in for-profit versus nonprofit and municipal residences; and 3) the enduring problem of staffing LTC facilities.
- As a result of the implementation of the SARS Commission’s recommendations, Ontario’s hospitals were adequately prepared for the coronavirus outbreak, according to Kerry Bowman, a University of Toronto professor of Bioethics and Global Health. The lessons hospitals had learned from SARS regarding transmission — due to lack of staff or untenable patient/nurse ratios — resulted in them being less susceptible to COVID-19 outbreaks. But LTC facilities were neglected and, thus, under-prepared at the beginning of the pandemic, Bowman said. “Personal protective equipment was only available if there were outbreaks, even though numbers were rising. They did not recommend testing of long-term care residents.” He added that Ontario did not stop staff rotation between LTC homes until April. Bowman pointed to the fact that long-term care is not regulated by the Canada Health Act as indicating the extent to which its importance is grossly underestimated.
- Holroyd-Leduc and Laupacis, the authors of that editorial, pointed out that, historically, Canadian society has undervalued the LTC workforce, “which consists mostly of racialized women who are underpaid for the important work they do”. They added:
Personal support workers (or health care aides), who provide the day-to-day personal care, psychological support and other care needed by residents, can earn as little as $14 per hour. Poor pay forces many to work shifts in several care homes in order to earn a living wage, which has contributed to the spread of SARS-CoV-2 across facilities.
- Since the start of the pandemic, Ontario has introduced two new Bills that will heavily impact the proposed class actions: one that impacts Ontario class action proceedings as a whole and one that discusses the meaning of negligence in the world of COVID-19.
- Kalajdzic opined that Bill 218 creates a standard that is far too lax, and challenged the legitimacy of bestowing immunity on someone simply because they exercised good faith — even if their actions were not reasonable. She added: “I don’t see what the general population of Ontario is getting in exchange for this immunity, this gift for the insurance industry and some businesses like certain private long-term care facilities and those facilities for which the government is responsible.” Regrettably, she added, the Ontario government has “immunized themselves against litigation”.
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