Judge Greenlights Lawsuit Against Ontario for Nursing Home Deaths During Pandemic

Paramedics take away an elderly patient at a long-term-care facility during the COVID-19 pandemic in Scarborough, Ont., Canada, on Dec. 23, 2020. (Nathan Denette/The Canadian Press)

An Ontario judge has ruled that families of nursing home residents who died from COVID-19 in the early stages of the pandemic can sue the province’s minister of long-term care—allowing them to avoid the reach of a 2020 law that bars almost all COVID-related litigation against the provincial government.

In his ruling released on Dec. 20, Ontario Superior Court Justice Edward Belobaba said his decision to “certify” the class action was based on his assessment of the evidence filed by the representative plaintiffs, which alleged that the Ontario government had failed to prevent thousands of COVID-19 deaths at the province’s long term care (LTC) homes, on grounds of “bad faith” and “gross negligence.”

In November 2020, the Ford government enacted the Supporting Ontario’s Recovery Act (SORA) which states that no COVID-related lawsuits may proceed against any individual, business, or other entity if they made a “good faith effort” to follow public health guidance and laws relating to COVID-19 and that their act or omission did not amount to gross negligence.

Belobaba’s ruling said families of the elderly who died argued that “gross negligence and a related lack of good faith” could be found in the government’s “inordinate delay and inaction.”

“The plaintiffs say that the Government of Ontario knew from the outset of the pandemic and certainly by the end of January 2020 that the frail and the elderly, and especially the residents of LTC homes, were the most vulnerable to the ravages of the coronavirus,” the judge noted.

“Yet for weeks, as the deadly virus spread through the LTC communities and while other jurisdictions including other provinces took immediate action, Ontario’s key ministers and health officials did nothing even though they had regulatory authority over the private-sector LTC homes.”

“And when action was finally taken and government directives were issued, they proved to be too little, too late,” he added.

The Epoch Times reached out to Ontario’s Ministry of Long-Term Care for comment but did not hear back by publication time.

‘Challenging at Best’

Evidence filed by the plaintiffs included their affidavits, three reports from the Auditor General, and a “Final Report” from the province’s Long-Term Care COVID-19 Commission.

“Each of these reports detail Ontario’s long-standing neglect of the LTC sector and its delayed and deficient response to the Covid pandemic as the first wave began to hit LTC homes,” Belobaba wrote.

In addition to the reports, the plaintiffs submitted the expert opinion of Dr. Dick Zoutman, a leading microbiologist in Canada, who told the court that “as much as 90 percent” of the LTC deaths and infections could have been avoided if the province “had simply acted on what they knew and had moved more quickly.”

According to the National Institute on Ageing, a Toronto-based think tank that tracked the pandemic’s threats to LTC homes across Canada since April 2020, there were 5,030 COVID-related deaths recorded among Ontario nursing home residents as of July 2022. The institute stopped tracking in that month after provincial and territorial governments cut back on reporting their data.

Belobaba noted the plaintiffs’ attempt to sue a public authority in tort for gross negligence—in this case the province’s minister of long-term care (MLTC)—is “challenging at best.”

“Generally speaking, the government’s discharge of public law duties ‘in the public interest’ does not give rise to a private law duty of care to a particular group of affected individuals,” the judge said. “However, the ‘private law duty of care’ analysis as it relates to the MLTC is different in one important respect.”

He ruled that the plaintiffs could sue the MLTC based on a specific duty laid out in a preamble to the province’s Long-Term Care Homes Act, which says the government has a duty to “take action” in circumstances “where the care, safety, security and rights of residents might be compromised.”

“In my view, there is enough in the pleadings and the applicable legal analysis to support at least an arguable chance of success for the tort claim as against the MLTC,” Belobaba said.

However, he struck down the claims about the breach of fiduciary duty and violation of Section 7 of the Charter of Rights and Freedom. He ruled that the class definition is limited to the LTC residents and their surviving family members, and does not include visitor class.

Appeal

The judge added that given the allegations put forward by the plaintiffs are “gross negligence and a related lack of good faith,” they will be able to avoid the reach of SORA. “Here the allegations go beyond the zone of good faith.”

The Epoch Times sought comment from the plaintiffs’ lawyer Joel Rochon, who said he was not able to respond by publication time.

According to Belobaba’s ruling, Rochon and his colleagues are working on a parallel class action against eight groups of LTC home operators, scheduled to be heard over the next few months.

The National Post reported that government lawyers had appealed the certification decision on Jan. 4, saying Belobaba made legal errors on a number of points, and that his ruling would have serious implications for the principle of government immunity. They also argued that the preamble was never meant to establish a “duty of care” for the minister, who in fact has no authority to issue directives to individual LTC homes.

Belobaba said his ruling was solely a certification decision, and that the hurdle to clear is much lower than the one when the dispute is to be adjudicated by a trial judge or settled out of court.

“The merits of this dispute will be decided at trial or by way of a motion for summary judgment, either of which is still many months away,” he said.