Don’t Bail Out For Profit Long-Term Care Homes

Author(s): Stephen M. Birman, Lucy G. Jackson

June 17, 2020

There are rumblings that the Ontario government is considering legislation to implement some restrictions against COVID-19 related lawsuits.

In the United States, various immunities have been enacted. In some cases, the immunities are limited to protect emergency workers from potential lawsuits, and in other cases they go so far as to grant immunity to various sectors, including long-term care homes.

It is not clear what the Ontario government is contemplating and whether any proposal would apply retroactively to obligations owing up to this point or on a forward-looking basis associated with the re-opening of Ontario’s economy. However, under no circumstance should any immunity protection be granted to long-term care homes and their for-profit corporate owners for the conditions they created that led to the virus spreading through their facilities in the first place.

Any immunity provided to the long-term care sector would add severe insult to the tragedy already suffered by residents and their families who have allegedly been victimized in the long-term care system.

In Ontario, long-term care home residents account for almost 75% of COVID-19 deaths thus far. We have also heard tragic stories and read the Armed Forces Report documenting the rampant neglect in these long-term care homes, which includes more than just a failure to prevent COVID-19 infection amongst the residents, but also observations of malnourishment, dehydration and untreated pressure ulcers. After reading the Armed Forces Report, Premier Ford himself stated the following: “The reports they provided us were heartbreaking, they were horrific, it’s shocking that this can happen here in Canada. It’s gut-wrenching and reading those reports was the hardest thing I’ve done as Premier.”

The long-term care sector and its insurers are not deserved of any reprieve or protection from the government of Ontario and its taxpayers. The circumstances that have led to these conditions existed long before the COVID-19 pandemic.

Some long-term care homes have underlying design flaws and these outdated facilities arguably contributed to avoidable deaths. In many cases, long-term care homes were extremely vulnerable to an outbreak because of their longstanding failures to implement infection control protocols and other measures as required under Ontario’s Long-Term Care Homes Act, 2007. Moreover, the for-profit long-term care homes were extremely understaffed before the pandemic, a situation which added to their bottom lines, but not to resident care.

The tragedy in Ontario’s for-profit long-term care homes cannot be resolved through a government bail-out. In fact, litigation is needed more than ever to ensure accountability and behavioural modification, as well as to compensate family members who have lost loved ones without the opportunity to say good-bye. This is not the time to reduce the oversight of these long-term care homes.

Families trusted these long-term care homes to take care of their loved ones and to protect them from infection and neglect. There is no reason to protect long-term care homes or their insurers for the underlying conditions they created through acts or omissions that led to the virus taking root in long-term care homes in the first place. Furthermore, these for-profit corporations should not be shielded by the government for their failure to provide reasonable care to some of the most vulnerable members of our society who they were entrusted to protect.

The standards under the Long-Term Care Homes Act, 2007, existed long before the COVID-19 pandemic and they will continue to exist (and likely be enhanced going forward). Now is not the time to water down these standards or take away the ability of victims and their families to enforce their rights and ensure a reasonable standard of care is provided to vulnerable members of our society. Any attempt to do so would only add insult to injury.

If you have any questions please contact Thomson Rogers personal injury lawyer Stephen Birman (416-868-3137 or by EMAIL) or Thomson Rogers personal injury lawyer Lucy Jackson (416-868-3154 or by EMAIL.)

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