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Long-term care accountability weaker from Bill 218: OHC, local long-term care coalition

Posted: October 23, 2020

(October 22, 2020)

By: Roderick Benns, The Lindsay Advocate

The Ford government has introduced legislation that would make it significantly harder for residents and families to hold long-term care homes liable for harm resulting from exposure to COVID-19, says the Ontario Health Coalition, a position echoed by a local group advocating for better long-term care.

The legislation covers any individual, corporation or entity and includes the crown (which means the government and its agencies). Bill 218, which was both introduced in the Ontario Legislature by the Ford government and passed First Reading, is retroactive to March 17, 2020.

That means the legal rights of those who were infected, potentially infected or exposed to coronavirus will be compromised by the legislation, if it is passed, no matter when they started any legal actions, according to a press release from OHC.

Trina West, a spokesperson for the Haliburton-CKL Long Term Care Coalition, called the new bill “extremely disturbing.”

“COVID-19 has exposed a total lack of accountability within our long-term care system. We absolutely cannot let this continue,” said West in a statement to the Advocate.

“They (citizens) have the right to an accountable system,” she said, and it is “imperative that we demand our government makes this a priority and ensure citizens quality of care and legal rights (that will be) upheld,” West said.

The OHC says there will be no compensation or relief for plaintiffs “as a result of having their rights extinguished under this bill.”

The new bill proposes protecting people from legal action if they made a “good faith effort” to stop the spread of the novel coronavirus after March 17.

Attorney General Doug Downey focused on the potential protections for “hard-working women and men,” citing frontline health care workers to people coaching minor sports teams.

However, the OHC says the legislation would make it both harder to sue a long-term care home and significantly easier for a home to defend itself, something the Conservative government denies.

In Ontario, more than 70 per cent of the deaths from COVID-19 in the first wave have been in long-term care homes. Many legal actions have been started, alleging negligence and failure to follow public health measures, particularly against for-profit long-term care home chain companies.

“No resident or family member who has suffered harm and injury as a result of the negligence of a long-term care home operator should have their rights to access justice extinguished in this way,” said Graham Webb, LL.B., LL.M., executive director of the Advocacy Centre for the Elderly, a community legal clinic specializing in seniors’ issues.

“It is difficult enough for residents and their families to prove the ordinary civil standard of negligence against business operations like a long-term care home without having to discharge the higher and ambiguous standard of ‘gross negligence.’ This is all about protecting the rights of negligent long-term care home operators at the expense of residents injured through the fault of the operator.”

Natalie Mehra, executive director of the Ontario Health Coalition, agrees.

“We are calling for this bill to be defeated,” she said. “Elderly people in long-term care have suffered enormously as a result of negligence, incompetence and indifference by profit-seeking corporations that have engaged in egregious practices while at the same time paying out tens of millions of dollars a month in profits to their shareholders. This is morally reprehensible.”

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