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Seniors’ Series: Who is Responsible for Ontario’s Long-Term Care Crisis?

“Ontario government does not guarantee the health or safety of residents in long-term care homes, legal document says”: https://www.theglobeandmail.com/canada/article-ontario-government-does-not-guarantee-the-health-or-safety-of/

At the end of August, the Globe and Mail reported on the statement of defense filed by the government of Ontario in response to a proposed class action. According to the Globe, the government faces allegations that it, “was negligent in its regulation, oversight and control of the long-term care system, breached its fiduciary duty… and violated the constitutional rights to personal security and equality of the residents.” In response, the government has argued that it does not control any long-term care “system,” it does not guarantee the health and safety of long-term care residents, and it is protected by the Crown Liability and Proceedings Act, 2019[1] (the “CLPA”).

The COVID-19 pandemic has been particularly dangerous to seniors, and disproportionally, Canadians who have died of COVID-19, have been residents of long-term care homes. Evidence suggests that Canada has underperformed relative to other countries in protecting long-term care residents since the pandemic has exposed longstanding problems in the system. Residents have also found themselves increasingly isolated from their families and other support systems, as COVID-19 precautions have restricted their access to visitors.

Under the Long-Term Care Homes Act, 2007[2] (the “LTCHA”) the Ontario Ministry of Health and Long-Term Care regulates access to long-term care homes, and funds and regulates the services that they provide. Many homes are, however, privately owned and operated.

The CLPA provides at s. 11, “the Crown or an officer, employee or agent of the Crown” shall not be liable in respect of:

  • a regulatory decision made in good faith, where,
    • a person suffers any form of harm or loss as a result of an act or omission of a person who is the subject of the regulatory decision; and,
    • the person who suffered the harm or loss claims that the harm or loss resulted from any negligence or failure to take reasonable care in the making of the regulatory decision.
  • a purported failure to make a regulatory decision, where,
    • a person suffers any form of harm or loss as a result of an act or omission of another person; and
    • the person who suffered the harm or loss claims that the harm or loss resulted from any negligence in a purported failure to make a regulatory decision in respect of that other person.
  • any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.

Subsections 5 and 6 contain broad definitions of “policy matter” and “regulatory decision”. The latter notably includes decisions on whether people or entities have complied with their statutory duties and requirements, whether and how to conduct an investigation under a statute, and whether and how to carry out enforcement actions.

Whatever the outcome of this litigation, the government’s position will likely be of little comfort to vulnerable seniors and their families. Polling indicated earlier this year that most Canadians believe that long-term care should be nationalized, and the government’s arguments in the proposed class action have already received harsh criticism from both politicians and advocates. The government has launched an independent commission to investigate the impacts of the pandemic on long-term care, and it will be interesting to see whether the commission’s recommendations will address these particular issues.

Whatever happens in the months ahead, it might be worthwhile to remember the principles stated in the preamble to the LTCHA, which include, among others, that “the people of Ontario and their Government”: 

Firmly believe in public accountability and transparency to demonstrate that long-term care homes are governed and operated in a way that reflects the interest of the public, and promotes effective and efficient delivery of high-quality services to all residents;

Firmly believe in clear and consistent standards of care and services, supported by a strong compliance, inspection and enforcement system;

Recognize the responsibility to take action where standards or requirements under this Act are not being met, or where the care, safety, security and rights of residents might be compromised; [and]

Affirm our commitment to preserving and promoting quality accommodation that provides a safe, comfortable, home-like environment and supports a high quality of life for all residents of long-term care homes[.]

[1] Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sch 17

[2] Long-Term Care Homes Act, 2007, SO 2007, c 8

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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