Ontario premier’s stance on liability protection from pandemic

It is not clear yet whether the Ontario government will grant any protection for liability arising from COVID-19, but the province will not protect “bad actors” in the long-term care or nursing home sector, a spokesperson for Premier Doug Ford told Canadian Underwriter Wednesday

“Our government will not protect the bad actors – they will be held accountable, and Ontarians will get the answers they rightfully need and deserve,” the spokesperson wrote Wednesday to Canadian Underwriter, which asked whether the province plans to introduce legislation that would limit the liability of companies, such as nursing homes or long-term care homes, if someone is accidentally infected with COVID-19.

Quoting anonymous sources, the CBC recently reported the government is considering some civil liability protection for organizations including health-care providers if they spread COVID-19 while acting in good faith.

When asked Wednesday whether any such legislation is in the works, a spokesperson for Ford did not categorically deny it but did provide a transcript from a recent press conference.

“I’m not supporting bad actors,” Ford said at the time of nursing homes and long-term care homes. “When we get through this whole process and find out exactly what happened in these homes, there’s going to be accountability.”

Ford was alluding to a May 14 internal Canadian Armed Forces memo reporting observations from military members. At the time, the military was helping to maintain staffing levels with infection control in some long-term care facilities. Included in the military report were allegations of seniors left in filth for weeks, or left on the floor where they had fallen, as well as cockroach infestations, and people choking while being improperly fed, the Canadian Press reported. Ford released that memo to the public.

The province reported Tuesday that since this past January, 1,722 have died from COVID-19 in long-term care or nursing homes in Ontario.

Right now, if a nursing home is sued, a plaintiff would have to prove the defendant knew or ought to have known their act or omission could cause harm, and that they did not meet a standard of care to prevent that harm, said Daryll Singer, head of the commercial and civil litigation practice at Diamond and Diamond Lawyers LLP, in a recent interview.

Singer was concerned the province might table legislation to require a higher test than “mere negligence” for nursing home or long-term care operators if someone contracted COVID-19 while in their care.

If the legislation rumoured to be planned was passed, plaintiffs suing long-term care facilities or nursing homes would instead have to prove the defendants were grossly negligent or reckless.

This could make it harder for Singer to win a lawsuit he recently launched against two elder care firms. Allegations against those defendants have not been proven in court.

“I have no question that my lawsuit will meet the test of gross negligence so it may not mean we are knocked out necessarily, but it certainly makes it harder,” Singer told Canadian Underwriter. “It means the first couple of years of the lawsuit will be spent litigating this procedural issue of whether or not we can proceed. So it’s an opportunity for the home operators to defend on a procedural basis without having to really address the merits of the case. So it’s a much higher hurdle.”

Singer made his comments shortly after attending a rally in late June urging the province not to limit the liability of nursing homes or long-term care homes from death or illness resulting from the pandemic.

Feature image via iStock.com/stacey_newman