Superior Court orders long-term care homes to provide nurses with N95 masks and protective gear

Respondent facilities face outbreaks, with over 110 residents and at least 7 nurses infected

Superior Court orders long-term care homes to provide nurses with N95 masks and protective gear

In light of the COVID-19 pandemic, the Ontario Superior Court of Justice has required four long-term care homes in the province to provide its nurses with access to personal protective equipment such as N95 respirator masks.

In Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467, the court also ordered these facilities to implement isolation and cohorting measures to ensure that those who are infectious are kept separate from and treated by different staff than those who are not infectious. This relief granted by the court is consistent with directives issued by Ontario’s Chief Medical Officer of Health.

The Ontario Nurses’ Association, which filed the application for injunctive relief on behalf of the nurses employed by Eatonville Care Centre in Toronto, Anson Place in Hagersville, Hawthorne Place in North York and Henley Place in London, said that it was pleased with the ruling by Justice Edward M. Morgan.

“ONA is thrilled that our members will have access to the proper protective equipment they need to protect themselves, and therefore their residents, and that the homes’ administrators will be forced to follow infection control practices – and put safety over profit,” said Vicki McKenna, ONA president, in a news release.

McKenna, who is also a registered nurse, expressed optimism that the ruling would pave the way toward preventing the “raging spread” of the virus in these long-term care homes. All four respondent facilities have faced COVID-19 outbreaks, with over 110 infected residents and at least 7 infected nurses. At least 54 residents have died due to COVID-19.

In the decision, Morgan ordered compliance with the public health directives, which allow nurses to make point-of-care decisions regarding the appropriate personal protective equipment and other health and safety measures they need to deliver services to residents and patients.

Morgan also cited the precautionary principle, which is incorporated in the collective agreement between the ONA and the long-term care homes. As explained by Justice Archie Campbell in relation to the 2003 SARS outbreak, this principle will apply “where health and safety are threatened even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. The entire point is to take precautions against the as yet unknown.”

In response to an argument by the respondent facilities that the nurses represent their own narrow interests, while the facilities represent broader interests, Morgan said that, in the context of this pandemic, the work performed by these nurses require them to sacrifice their personal interests for the benefit of their patients and of society at large.

“To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark,” Morgan wrote.

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