But cases seeking to modify behaviour of some operators may face higher bar due to legislative changes
The astounding death toll due to COVID-19 outbreaks in many of Ontario’s long term care homes has given rise to a host of claims against several long-term care home operators — but there’s a new hurdle in front of residents or surviving family members that may make it harder to recover compensation.
“In November 2020, the provincial government passed an act that limits COVID-19 liability or provides COVID-19 liability protection,” says Robert Ben, partner at Thomson Rogers Lawyers who was retained to handle class actions against a number of the for-profit long-term care home operators. “What the families of residents in these homes saw shocked them, and they feel the corporate operators should be held accountable — but the new legislation raises the bar.”
Bill 218: Supporting Ontario’s Recovery and Municipal Elections Act provides that, retroactively to March 17, 2020 when the province declared the pandemic an emergency, people can’t sue anybody for damages arising out of the exposure to or contraction of COVID-19 unless that person’s failure rose to the level of gross negligence. As is clearly legislated in the Long-Term Care Homes Act, the home owes a duty of care to its residents and the question prior to Bill 218 would be did they breach that standard of care by not taking reasonable action as judged against other long-term care homes in the same situation. Now plaintiffs have to prove the homes were grossly negligent or showed a marked departure from that standard, or in other words just because the long-term care home operators may be found to have been negligent in their handling of COVID-19, that no longer means they’re liable.
This new standard is made even more challenging by the fact that the term “gross negligence” is not clearly defined. Case law ultimately states it’s a fact-specific inquiry and Ben says the class actions and other claims intend to prove, on the evidence, that the long-term care home operators did markedly depart from what would be expected of them in the circumstances. Regardless of the new gross negligence standard, Ben says “it does not apply to other aspects of the claims against long term care operators, including claims in breach of contract against those long term care homes that failed to provide the basic services and level of care to which these residents were entitled to.” Ben points to the military report which suggests some residents died of simple neglect during the COVID-19 outbreaks.
A recent report from the Canadian Institute for Health Information found that resident deaths in long-term care homes represented 69% of Canada's overall deaths from COVID-19, significantly higher than the international average of 41%. To date, just under 4,000 residents of long term homes in Ontario have died because of the virus, and the resulting report from Ontario’s Long-Term Care COVID-19 Commission — which included intel from the Canadian Military and the hospitals that were deployed to take over management of some of the worst-hit homes, family members and employees on the condition of anonymity — “confirms what the families who contacted us were seeing, some of which was frankly shocking,” says Ben, adding the cases are not wide-ranging indictments of all operators but are targeted at particular bad actors who had very bad outcomes.
There are some common themes that emerged from the findings of the commission, including evidence that Ben says meets the threshold of unreasonable and demonstrates a marked departure from the acceptable standard of care. Generally, the key findings of the reports and allegations in the law suits include that those long term care homes linked to higher numbers of COVID infections and deaths failed to have or properly implement infection prevention and control (IPAC) measures; had systemic architectural/structural design deficiencies that created overcrowding and difficulties cohorting infected and non-infected residents which contributed to infection spread; and staffing levels, ratios, support, training and pay, which were at the discretion of each operator were inadequate.
“We’re talking about institutional or systemic negligence,” Ben says. “The data shows the for-profit home run by corporate operators in many instances fared much worse than some of the non-profits or the municipally run homes, and the question is why.”
Class action practice is often dominated by consumer protection, securities, and labour and employment issues, for example, and this is one of those rare class actions that involves “real people who suffered real harm,” Ben says, adding the plaintiffs are less interested in compensation than having the people responsible held accountable and for the long term care system to “finally acknowledge the need for real change and to take action to effect that change.”
Because there are around 20 class actions going on right now that raise the same issues of alleged mismanagement during the COVID-19 pandemic, Thomson Rogers has joined a consortium with the other personal injury firms involved, banding together and working cooperatively so the cases get before the courts in the most efficient way. The cases are in the pleading stage, but Ben expects there will be a motion for certification in the coming months, or at the very least early next calendar year.
“There was a crisis going on and some homes were not responding as one would expect them to” Ben says, pointing to the findings of the Long Term Care COVID-19 Commission that “the lack of pandemic preparedness and the poor state of the long-term care sector were apparent for many years.”