By Azra Alagic and Lovejot Bhullar
The COVID-19 pandemic is affecting how virtually every institution and business are run. The pandemic is also exposing their vulnerabilities. One of the most hard-hit institutions has been long-term care (“LTC”) homes. The rapid spread of the virus has illustrated the need to examine the standards of LTC homes in Canada.
There have already been more than 1,400 deaths from the pandemic in Canada. According to The National Institute on Aging, 82% of deaths in Canada have been in LTC homes, with most cases coming out of Quebec and Ontario. The virus has killed 1,300 long-term care residents in Quebec, accounting for 80% of deaths from the virus in that province. In Ontario, 671 LTC residents have died, representing two-thirds of the deaths in Ontario from COVID-19.
Family members of loved ones who resided in these homes have turned to class action lawsuits to hold both private and government-run LTC homes accountable for unnecessary and preventable deaths.
Class Actions Against Private Long-Term Care Operators
In Canada, there are no federal or national standards or guidelines for the operation of LTC homes. For-profit LTC homes have four times as many COVID-19 related deaths than non-for-profit homes. Privately-owned homes have been sued in 10 separate class actions.
For example, a $15-million class action has been proposed against six Ontario homes linked to Responsive Group Inc. and its subsidiaries for failing to provide adequate care to residents. As of April 23rd, 71 residents had died in the six homes during the pandemic.
A $120 million class action has been proposed against Revera Inc and Sienna Senior Living, which together own and operate 105 long-term care and retirement homes in Ontario. It is estimated that the action could include as many as 3,000 residents from the homes and 10,000 family-members who will serve as plaintiffs.
The plaintiffs in these class action lawsuits allege negligence and breach of contract. It will be argued that the homes breached their contract by failing to: ensure adequate staffing, contain the illness, communicate with family members, properly plan for and respond to the pandemic and comply with public health guidance and directives.
There is already evidence in the public domain that suggests some of these facilities may not have met the standard of care expected in the industry. One report has highlighted that during an outbreak at Anson Place in Hagersville, the pandemic plan was not properly followed.
The unsuitable living conditions in Ontario’s LTC homes became an issue at the start of the pandemic and led to the provincial government requesting assistance from the Canadian Armed Forces (“CAF”) in early April.
A report by the Ontario Health Coalition, an umbrella organization that advocates for publicly funded health care on behalf of various other health organizations and individuals, showed that 9% of COVID-related deaths occurred in for-profit LTC homes (vs. 5.25% and 3.62% in non-profit and publicly-owned homes, respectively). This and other reports have prompted calls to overhaul or even abolish the private LTC home model and will likely become a larger point of contention as more studies and inquiries are conducted.
This coincides with a recent report released by the CAF detailing the dangerous and unsanitary conditions found in many LTC homes. In response, the Ontario government has begun an investigation on the basis of the CAF report, and announced that it will be launching an independent commission into the system in July, 2020. The report has also led the government to take over the management of certain LTC homes.
Class Actions Against the Province of Ontario
In addition to class actions against private companies, a class action has been filed against the government of Ontario on behalf of all Ontarians who reside in LTC homes. This class action points to the provincial government’s alleged failure to oversee LTC homes as the cause of spread of the virus and loss of life. In particular, the claim alleges negligence and breaches of the Charter of Rights and Freedoms.
Ontario’s response has been contrasted with that of British Columbia, where health officials took steps in late March, such as restricting visits, restricting workers to only one home, and focusing testing on homes and workers. Though LTC homes in BC have been far from unaffected, a majority of COVID-related deaths in LTC homes in Canada are located in Ontario and Quebec.
COVID-19 testing policies may likely be at issue in class actions or other lawsuits brought against the provincial government, as testing is an issue almost entirely under the purview of the government and public health agencies. The government did not expand testing and other measures in LTC homes until late April – almost a month after the first LTC home death. Bio-Test Laboratories has already been named in a class action for the use of defective COVID-19 test kits in an LTC home.
The outbreak at Anson Place Care Centre in particular has brought to light the consequences of belated government action. This includes keeping infected residents alongside those who were healthy, shifting blame to workers or visitors, conducting inspections by phone only, and waiting for nearly a month before banning staff from working at more than one facility.
Commentators say that these class action lawsuits may face difficulties in showing that the actions of operators or government caused the deaths and that the care was below the established standard.
Given the fast-moving nature of the crisis it will be difficult to establish the correct standard of care. Though it is hard to imagine that either private institutions or the government could be completely absolved of any responsibility, showing negligence, rather than just difficulty responding to an unprecedented crisis, will be difficult. Nonetheless, it is clear that the legal fallout will be significant and that policies relied upon by private companies and public agencies will need major overhauls.
The current list of class actions against LTC home operators in Canada includes:
- Responsive Group Inc – Ontario
- Revera Inc and Sienna Senior Living Inc – Ontario
- Chartwell Retirement Residences – Ontario
- Oxford Living – Ontario
- Southbridge Care Homes – Ontario
- Revera Living – Alberta
- CHSLD Vigi Mont-Royal – Quebec
- CHSLD Ste-Dorothée – Quebec
- Résidence Herron, Groupe Katasa – Quebec
- Retirement Concepts – National