COVID-19 and Long-Term Care Homes: What Are My Rights and Legal Recourse?
The recent news coverage surrounding COVID-19 is predominately centered on the spread of the virus inside long-term care facilities and the devastating impact on both residents and staff members alike. For those impacted by the spread of this virus throughout long-term care facilities - including staff members, residents, and their loved ones - a key consideration is what forms of legal recourse are available. While the spread of COVID-19 is a relatively recent problem, the issue of determining whether one party's negligence has harmed another, frequently arises in the Canadian legal system. Whether someone has been injured in a motor vehicle accident, has slipped and fallen on an improperly maintained surface, or has been adversely impacted by the spread of an infectious virus, the required principles of establishing a negligence lawsuit in Canada remain the same. There are four principles that must be established to bring a successful negligence lawsuit, which were recently summarized by the Ontario Court of Appeal in Turcotte v. Lewis (2018 ONCA 359).
- The injured party has to establish that the negligent party owed them a duty of care. For circumstances surrounding the spread of COVID-19 in long-term care facilities affecting residents, this duty would likely be found. Residents of long-term care facilities rely on the facility's management, the procedures put in place by the facility's management, and the enactment of the procedures by the staff members, to ensure their health and wellbeing.
- The injured party has to establish that the negligent party's actions breached the standard of care. Here, the key consideration is whether the allegedly negligent party acted reasonably in the circumstances. The courts do not expect perfection from all people at all times, and understand that sometimes errors result from the most well-intentioned and well-reasoned actions. If someone acted in a manner that was negligent, but was acting reasonably within the circumstances, negligence cannot be established.
- The injured party needs to establish that compensable harm resulted from the negligent party's actions. In short, if you are not hurt by another's negligent behaviour, even if the negligence is reprehensible, you cannot receive a financial award through a negligence action. For example, if a driver on the road speeds up at a stop sign instead of stopping, but you are not hurt by the driver's actions, a negligence action against the negligent driver cannot succeed.
- The injured party must establish that the damage was caused by fact and law by the negligent party's breach. What this means is that the harm has to have been caused by the proven negligent behaviour. Proving harm and negligence, but failing to establish a link between the two, can result in a negligence action failing during this stage of the analysis. A link must be proven between the negligence and the harm. The question that is asked during this stage of the analysis is whether "but for" the negligence, would the injured party have been harmed? If this cannot be proven, the negligence lawsuit cannot succeed.
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