PUBLIC BACKLASH:
Lawsuits emerge over handling of COVID-19 in nursing homes
As the deadly toll of COVID-19 on Canada’s nursing homes gives rise to a growing number of proposed class-action lawsuits, some legal experts say the cases will turn on what’s considered reasonable care during a pandemic.
The ongoing global health crisis that has disproportionately affected the elderly poses a unique and unprecedented backdrop for such civil actions, which have emerged in Ontario and Quebec in recent weeks, experts say.
While nursing homes can’t be blamed for the pandemic, they can be held accountable for unnecessary and preventable deaths, said Michael Smitiuch, a Toronto-based lawyer who previously led a successful negligence lawsuit against a Brampton facility for seniors.
“A crisis like this does not give nursing homes a free pass to neglect the elderly. So I think what will happen is ... we’re going to look back at this through a lens of what was reasonable under the circumstances,” he said. “The interesting question will be, what is the standard of care during a pandemic?”
The courts will likely look to the requirements and guidelines issued by health ministries, the World Health Organization and other similar bodies in gauging whether any defendants were negligent, Smitiuch said.
The coronavirus has ravaged private and government-run seniors’ homes, particularly in Canada’s two largest provinces, causing a large proportion of the country’s more than 3,000 deaths.
Rules and standards for nursing homes have evolved rapidly as public health officials respond to the crisis, with several provinces now banning staff from working in multiple facilities.
However, a number of proposed class-action lawsuits allege negligence on the part of governments or nursing home operators in their handling of the virus.
In Quebec, the son of a 94year-old woman who died of
COVID-19 at one of the province’s hardest-hit facilities has filed a class-action application against the government-run CHSLD Ste-Dorothee.
A Toronto law firm, meanwhile, has served the provincial government with notice of a proposed class proceeding on behalf of all Ontarians in longterm-care homes.
It alleges the province’s failures in overseeing the facilities have resulted in widespread, avoidable illness and death during the pandemic.
Another such lawsuit launched by two Ontario men whose mothers died from COVID-19 targets Revera, a privately owned nursing home company.
None of the cases have been certified as class actions so far and their claims have not been tested in court.
Scott Stanley, a personal injury lawyer in Vancouver, said these lawsuits and any others that surface in the coming months will face multiple hurdles in meeting the criteria for negligence.
It may be difficult for plaintiffs to show the actions of the operators or government caused the deaths.
“If the theory is, well, workers were able to go from one home to the other and transmit the virus — that’s a theory, but you have to show factually that actually caused other people to be affected or infected,” he said.
OTTAWA—A few months before the coronavirus arrived in Canada, the Makwa Sahgaiehcan First Nation at Loon Lake, Sask., was already raising the alarm over suicides in the community, about 360 kilometres northwest of Saskatoon.
The First Nation declared a state of crisis in mid-November 2019 after three deaths by suicide occurred over three weeks, including a 10-year-old girl. In the weeks that followed, band leaders say eight people, mainly youths, also tried to take their lives.
Chief Ronald Mitsuing says a deep sense of grief remains within the community of just over 1,000 people, especially after a 31-year-old man in the community died by suicide two weeks ago.
Now, Mitsuing says he fears the stress and worry about a possible outbreak of COVID-19 could trigger further mental health suffering among some of his residents.
“Losing the youth really took a big toll out of our community. And I know it’s ongoing — people thinking about it all the time, can’t get past it,” he said.
“We’re not in that comfortable stage yet where we know it’s going to be all right.”
He is not alone. As the number of COVID-19 cases begins to climb in Indigenous communities across Canada, First Nations and Inuit chiefs say they are deeply concerned about how the pandemic is affecting the mental health of their residents.
The Makwa Sahgaiehcan First Nation did receive help from the province and federal government to deal with the immediate aftermath of the suicide crisis, but Mitsuing says they need more permanent resources. He wants funding to train locals as trauma counsellors, rather than relying on outside help or having to send youth away for treatment.
Chief Eugene Hart of the Sheshatshiu Innu First Nation in central Labrador shares the same concerns for his community, which also declared a crisis in the months before the pandemic following 10 suicide attempts in less than a week in October 2019. The community of roughly 1,300 people had also been struggling with more than a dozen other deaths from natural causes before that — a toll that was hardest felt by young people with few supports in place to help them address their grief, Hart said.
He echoed Mitsuing’s concerns about not having adequate supports that are permanent. He would like to see fulltime crisis counsellors and staff and mental health crisis lines staffed by people in the community. However, he says his First Nation has not received the support from Ottawa or from the province for added mental health supports.
Indigenous Services Minister Marc Miller says he knows COVID-19 is affecting the mental health of Indigenous communities, particularly among those who are at a high risk from the illness — or have families who are.
He says the federal government is increasing the number of crisis intervention counsellors on shift at the Hope for Wellness helpline, which provides telephone and online support for First Nations, Inuit and Métis in English, French, Cree, Ojibway and Inuktitut.