Justice for families rests with the premier
Doug Ford made a guarantee, is what he did.
“I will not stop until these families get justice,” Ontario’s premier said Thursday about long-term-care homes. “Simple as that. That’s what’s going to happen, they will get justice.”
It sounded good. Nearly 2,000 people have died as COVID-19 roared through Ontario’s long-term-care homes. British Columbia, with a little less than a third of the population, has less than 10 per cent of the deaths. Someone has to be responsible.
“I’m protecting the people,” said Ford. “I’m protecting the people that lost loved ones.”
Except he was being asked about including long-termcare homes in Ontario’s liability shield law, which is part of the province’s Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act. British Columbia didn’t include LTCs in its version of the legislation; Ontario did. Ford said he asked if people could still sue long-term-care homes, and was told yes; maybe he didn’t ask the follow-up, or maybe he didn’t want anyone else to.
“When the premier says this is not about protecting negligent long-term-care home operators, that’s all it’s about,” says Graham Webb, a lawyer who has tried many cases against long-term-care homes, and the executive director of the Advocacy Centre for the Elderly. “Because long-termcare home operators who weren’t negligent would have no civil liability whatsoever.”
“You don’t need to be a lawyer to figure out that the intent of this thing is to bar lawsuits,” says Dr. Amir Attaran, a professor of law and epidemiology at the University of Ottawa. “That’s kind of all it’s for.”
Both Webb and Attaran point to the high bars to lawsuits set out in the act. One is that you have to prove that the target of a lawsuit did not act, or make a good-faith effort to act, in accordance with public health guidance. And beyond that, you can’t just prove negligence; you have to prove gross negligence.
“Just getting over the negligence bar is like winning a medal at the Olympics,” says Webb. He tells a story of an Italian-speaking client in an English-speaking home, prepandemic; he complained, in Italian, of pain in his leg. His daughter-in-law informed the home.
For three days, nothing was done; when she called an ambulance, they found his broken femur poking through his skin. He was taken to hospital and never came back.
And even then, there was no lawsuit, because the family would have been liable for costs and negligence was a high bar. They couldn’t take that chance.
“If they had vast financial means, they would probably be in another facility,” says Webb. “We’re not talking about the Bronfmans here. The homes have insurance and are really well funded and will defend, so it’s already like Main Street versus Bay Street here.”
The act also retroactively wipes out existing COVID-19 long-term-care lawsuits, and creates something close to an unclimbable mountain: a high and uncertain standard of negligence, and proof that an action was done with something more than malfeasance.
“Everyone can say, well, we were working in good faith, but things happen,” says Dr. Samir Sinha, the director of geriatrics at Mount Sinai and the University Health Network. “This is like where you have to prove Elizabeth Wettlaufer,” the nurse who murdered eight long-term-care residents between 2006 and 2007 in Woodstock.
Look, the connections between the Ontario Conservatives and the long-term-care industry — 58 per cent of homes here are for-profit, and former PC premier Mike Harris is the chair of Chartwell’s board of directors — are wellestablished. You can presume requests were, somehow, made clear.
But in a way, this is also Ontario protecting itself from its own grim history. In British Columbia, Dr. Bonnie Henry moved faster than any province did to protect LTCs; she barred workers from moving between LTCs almost a month before Ontario did, and instituted masking two weeks earlier. Meanwhile, Dr. David Williams, Ontario’s chief medical officer of health, was far behind.
As Dr. Henry told the Star, “(The) government that was prepared to take the decisions that we needed to take, and that included the LTCHs. So the whole idea of not letting people work in more than one, that is an expensive and complicated proposition. And they stepped up.”
And in April, May and June, health spending in Ontario went up 10.6 per cent over the previous year, according to the Canadian Centre for Policy Alternatives; Quebec’s went up 21.4 per cent, and B.C.’s 26.9 per cent. Quebec started recruiting long-term-care staff in May; Ontario, in September.
It all made a difference. B.C. had a better-funded, more robust, more publicly oriented system, and was the gold standard public health-wise, and so if things went really wrong, negligence was almost implied. Ontario, with a long-term-care system that had been allowed to rot by governments of every stripe for decades, combined with tepid leadership and weak public health decisions, was different.
“Ontario took a week or maybe a month to implement things,” says Sinha. “So if you ask long-term-care homes who’s to blame here, they’re going to tell you it was the government, because the government just wasn’t there to help them. So people could easily point to the government and say that it was the government’s inaction that actually led to this legislation. We can say the homes were acting in good faith, or doing what they could under the circumstances, but it was almost the blind leading the blind.
“There were a number of problems here in the first place. If we were actually better prepared, if we had better supported our long-term-care homes in the first place, if we actually gave them access to PPE, and if our public health guidance had actually been in line with provinces like B.C. that were actually following the evidence, and were implementing best practices early, then we wouldn’t have had the levels of outbreaks and deaths that we had.”
What’s left is a province where 40 per cent of homes had outbreaks, and which has more homes than Quebec in the second wave despite less community spread, and longterm-care homes can’t get insurance now. The province could have backstopped that a different way. It did this instead, and it stinks.
So Doug Ford swears there will be justice, but it won’t come in the courts. Which means justice for the people who died preventable deaths in long-term care, almost 2,000 of them, is now exclusively up to him.