Ontario Government Bill on Long-Term Care
Ford Government Protects Long-Term Care Operators from Liability
- Steve Rutchinski -  
Those responsible for the deplorable record of COVID-19
transmission and deaths in Ontario's long-term care homes have received
a "get out of jail free" card. Ontario Bill 218, the Supporting Ontario's Recovery and Municipal Elections Act, 2020[1]
prohibits legal action against those whose
actions or inactions resulted in the high number of deaths of seniors
in Ontario's long-term care facilities, unless gross negligence can be
proven. The bill was referred to the Standing Committee on Justice
Policy following second reading on October 27. Many legal opinions have
already been given and it is generally agreed that "gross negligence"
is a very high bar to meet.
Schedule 1 of the bill, entitled Protection from Liability,
"provides that no cause of action arises against any person as a direct
or indirect result of an individual being or potentially being infected
with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as
a direct or indirect result of an act or omission of the person if,
"(a) at the relevant time, the person acted or made a good faith
effort to act in accordance with, (i) public health guidance relating
to coronavirus (COVID-19) that applied to the person, and
(ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
"(b) the act or omission of the person does not constitute gross negligence."
Dotting the "i" of impunity, the bill specifies that "good faith effort' includes an honest effort, whether or not that effort is reasonable." (Emphasis added.)
The bill also makes sure to:
- bar future legal proceedings: "No proceeding that is directly or
indirectly based on or related to anything referred to in subsection
(1) may be brought or maintained against a person."
- dismiss legal proceedings in progress: "Any proceeding referred to
in subsection (4) that is commenced before the day this Act comes into
force is deemed to have been dismissed, without costs, on the day this
Act comes into force."
- prohibit compensation: "No person is entitled to any compensation
or any other remedy or relief for the extinguishment or termination of
rights under this Act."
 The bill apparently has no effect, however, on the Workplace Safety and Insurance Act:
"Nothing in this Act affects the exclusive jurisdiction of the
Workplace Safety and Insurance Appeals Tribunal to determine a matter
described in subsection 31 (1) of the Workplace Safety and Insurance Act, 1997."
Canada's record of COVID-19 infections and deaths in long-term care
facilities, especially for-profit privately owned corporate long-term
care businesses, is appalling. In June, as the first wave was settling
down, long-term care residents accounted for 81 per cent of all
reported COVID-19 deaths in Canada, compared with an average of 38 per
cent in other OECD countries. In Canada, more than 9,650 long-term care
staff members were infected by COVID-19, representing more than 10 per
cent of the country's total cases.[2]
The Ontario Health Coalition (OHC) reports that at least two dozen
legal actions have been filed as a result of the conditions in
long-term care homes and the responses to the spread of the virus,
during the first wave of the COVID-19. The OHC has a list of legal
actions in progress in the Briefing Note section of their website.[3]
One such case is a class action suit "against Chartwell Retirement
Residences and Long-Term Care Homes for their alleged failures in
outbreak planning, precautions and response relating to COVID-19
resulting in preventable resident deaths and unnecessary suffering for
their family members. [...] brought on behalf of all persons who live
or
lived at a Chartwell Home from January 10, 2020 to the end of the
pandemic date, which is currently unknown."
 Seventy-seven
people died in four Chartwell facilities in the first wave. Another
nine residents have died at one Chartwell location thus far in the
second wave, as of October 25, and at least 16 staff have contracted
COVID-19 at various Chartwell homes since the second wave outbreaks.
Chartwell operates eleven long-term care homes in
Ontario.
Granting protection from prosecution to those responsible for what
is a national disgrace and considered by many to be an outright crime
is outrageous. The rich have the power to act, or not to act, with
impunity. Do we need more clear evidence that this is a democracy of
the rich, for the rich? These days will not be forgotten and the time
will come when those responsible are held to account!
Notes 1. The full official name of Bill 218 2020 is An
Act to enact the Supporting Ontario's Recovery Act, 2020 respecting
certain proceedings relating to the coronavirus (COVID-19), to amend
the Municipal Elections Act, 1996 and to revoke a regulation.
2."Pandemic Experience in the Long-Term Care
Sector: How Does Canada Compare With Other Countries?" CIHI Snapshot,
June 2020, Canadian Institute for Health Information, Ottawa, ON.
3. Ontario Health Coalition, Briefing Note: COVID-19 in Long-Term Care Litigation & Legal Actions.
This article was published in
Number 74 - October 29, 2020
Article Link:
Ontario Government Bill on Long-Term Care: Ford Government Protects Long-Term Care Operators from Liability - Steve Rutchinski
Website: www.cpcml.ca
Email: editor@cpcml.ca
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