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Debate over Ontario’s role in the COVID-19 deaths of more than 5,000 nursing-home residents appears headed to a legal showdown — and one lawyer says the case could have an impact throughout Canada.

A class-action lawsuit charges that the province was “grossly negligent” in failing to prevent waves of long-term-care deaths in the early stages of the pandemic.

Governments enjoy broad immunity against civil suits generally, and a 2020 Ontario law barred almost all types of COVID-related legal action specifically. But a judge has ruled the families of nursing-home victims can sue the minister of long-term care, citing the plaintiffs’ contention that the government showed bad faith and an acute degree of negligence.

There is at least some chance those allegations can be proven at trial, concluded Justice Edward Belobaba of the Ontario Superior Court in a ruling last month.

His decision to “certify” the class action means it has crossed a major hurdle against seemingly steep odds. Lawyers will still need to convince a trial judge to find the minister liable for the deaths – or persuade the government to settle out of court.

Though many of the problems that led to those deaths have been exposed by official commissions and the media, a legal judgment would have unique benefits, argues Joel Rochon, the Toronto lawyer who is spearheading the class action.

“It’s one thing to make these issues public,’ he said in an interview Friday. “A class action of this nature also brings to bear the potential for behaviour modification.

“We know there will be another pandemic, whether it’s next year or 10 years or 20 years from now,” said the lawyer. “This kind of lawsuit will send an important message to governments, not only in Ontario but right across the country, that they have to really take the precautionary principle seriously.”

But the province has already appealed the certification decision, saying the judge made legal errors on a number of points, and that his decision would have a serious impact on the principle of government immunity.

“Is it sound to depart from the settled law that establishes that Crown officers, including ministers of the Crown, are not subject to lawsuits by private citizens in respect of directives they may issue only in the public interest?” government lawyers asked in a notice of appeal filed last Wednesday.

Meanwhile, Rochon and colleagues begin hearings Tuesday on certification of a separate, companion class action against eight groups of nursing home operators.

Long-term-care (LTC) home residents suffered a disproportionately heavy toll from COVID in many places around the world, and the crisis in Ontario was particularly severe.

https://theprovince.com/news/covid-deaths-lawsuit-against-ontario/wcm/8b00fb50-3131-4a90-8bbd-533a977ea5b3

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part 2

Its nursing homes had recorded 5,044 COVID-related deaths by last July, when the province cut back on public reporting of data, exceeded only by Quebec’s 8,000-plus fatalities.

Reports by the provincial auditor general and the Ontario long-term-care COVID-19 commission pointed to a history of neglect and underfunding of nursing homes as factors. And the commission cited delays in implementing preventive measures when “alarm bells should have been ringing loudly” based on outbreaks in other jurisdictions.

Belobaba quoted evidence from the plaintiffs’ expert witness, leading microbiologist Dr. Dick Zoutman, who told the court that 90 per cent of the deaths could have been avoided if the province had acted sooner to implement measures already in place elsewhere, like screening tests and masking.

“The outbreaks of COVID-19 in LTC homes were preventable,” his report said. “Had Ontario adopted, mandated and enforced timely, measured, and consistent steps to implement the available and accepted (infection control) practices, the vast majority of the outbreaks and the deaths that occurred in LTC homes would have been prevented.”

But the class action faced some significant obstacles just to get certified.

First is that such “private law” tort claims — lawsuits alleging that an injury was caused by negligence — are often not allowed against governments.

The judge ruled that the plaintiffs — families of people who died — could sue the minister based on a specific duty they argued was laid out in a preamble to the province’s Long-Term Care Homes Act. It says the province must take action when the “care, safety, security and rights of residents” might be compromised.

But government lawyers say in their notice of appeal that that preamble was never meant to set up a “duty of care” for the minister, who in fact has no authority to issue directives to individual nursing homes.

The second hitch was the Supporting Ontario Recovery Act, which prohibits “almost all” COVID-related lawsuits — so long as the defendant acted in good faith and didn’t exhibit “gross” negligence.

If the plaintiffs’ assertions are correct, the government fell short on both counts, said Belobaba. “Here, the allegations go beyond the protected zone of good faith.”

However, the judge disallowed claims in the suit that the minister violated the residents’ rights under the Charter of Rights and Freedom and breached his “fiduciary duty” to them. Belobaba also ruled the class could not include visitors to the homes, as they were not covered by the call for government action in the long-term-care legislation.

https://theprovince.com/news/covid-deaths-lawsuit-against-ontario/wcm/8b00fb50-3131-4a90-8bbd-533a977ea5b3