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Ontario bill protects long-term care homes, not seniors

Posted: October 30, 2020

(October 29, 2020)

By: Lorrie Goldstein, Calgary Sun (Print Edition)

When Ontario Premier Doug Ford promised “an iron ring around our seniors” to protect them from COVID-19 on March 30, it didn’t sound like the protection he was talking about was for negligent long-term care (LTC) homes and insurance companies.

At that time, there were 40 deaths resulting from outbreaks in LTC homes.

As of Wednesday, there were 1,934, more than 60% of the 3,108 deaths in all of Ontario.

Given that, how was Ford acting “for the people”- his campaign slogan in last year’s election – when last week he introduced legislation making it harder for families to hold negligent LTC homes liable for their actions during the pandemic? Ford insists his bizarrely named “Supporting Ontario’s Recovery Act” will still allow families to sue negligent LTC homes for wrongdoing, but let’s not kid the troops.

When the owners of LTC homes and the insurance industry are praising the Ford government for its wisdom in listening to their concerns, while the families of seniors who suffered and died say they feel abandoned, it’s not hard to see who the government listened to.

“First they watched their loved ones die and now they’re afraid they will never get any justice,” Natalie Mehra, executive director of the Ontario Health Coalition, told Toronto Sun reporter Antonella Artuso. “The long-term care providers lobbied for it and they got it … I’m angry.”

Now families launching lawsuits against LTC homes will not only have to prove the home was “negligent” but that it was “grossly” negligent.

The legislation also protects homes found to have made an “honest effort, whether reasonable or not” – whatever that means – to control the spread of the virus.

Class-action lawyers say this vague wording is open to broad interpretation that favours LTC homes in legal proceedings and disadvantages victims and their families by demanding an excessively high standard of proof of wrongdoing.

The Ford government says the purpose of the legislation is to protect people like volunteers and small business owners from being maliciously sued by a customer for spreading COVID-19.

But if that’s the case, why is it also being applied across the board to an industry whose entire business model is based on accommodating and caring for the elderly? And why is the bill retroactive to March 17, two weeks before Ford’s “iron ring” of protection pledge and the same day on which the Ford government declared a provincewide emergency because of COVID-19.

It also sounds like one purpose of the act is to protect the province and the public sector from legal liability, for everything from failing to ensure adequate supplies of personal protective equipment to staff in LTC homes, to cutting back on surprise government inspections of these homes before the pandemic hit.

It is true that many LTC homes and their staffs did all they could to protect their elderly residents.

Many were successful and the simple fact of an outbreak does not automatically mean a home was negligent in its care.

The Ford government inherited a mess in the longterm care field from the previous Liberal government, as it did on many other files.

But tipping the legal balance in favour of homes that were negligent at the expense of seniors who suffered and died in them, while their loved ones felt helpless to prevent it, will create a moral hazard detrimental to ensuring that a tragedy like this never happens again.

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