New legislation tabled by the Ford government at Queen's Park this week will make it harder for Ontario residents to take legal action against long-term care homes or hold them liable for harm as a result of being exposed to COVID-19, according to the Ontario Health Coalition (OHC).
The OHC was commenting on Bill 218, which passed first reading in the legislature on Tuesday after it was introduced by Attorney General Doug Downey.
The new legislation would be retroactive to March 17, 2020 and provides legal protection to persons or organizations that exposed others to the coronavirus provided they were acting "in good faith" and that any actions or omissions did not constitute gross negligence.
The OHC said the legislation compromises the legal rights of persons who might have been infected as well as family members who might want to initiative legal action.
There will be no compensation or relief for plaintiffs as a result of having their rights extinguished under this bill, said the OHC in a statement on Wednesday.
The new law would require those harmed as a result of exposure to an infection with COVID-19 to prove gross negligence rather than the current standard which is ordinary negligence. This is a significant difference which requires proof of a higher legal standard that is more difficult to prove, said the OHC.
Bill 218 would also redefine the term “good faith effort”. Currently a good faith effort to comply with legislative, regulatory and policy requirements means a competent and reasonable effort. Instead, the new bill explicitly changes the definition to state “an honest effort whether reasonable or not”, said the OHC statement.
This would make it "significantly harder" to sue a long-term care home and "significantly easier" for a home to defend itself. The OHC said it hopes the bill is eventually defeated.
There was a different reaction from the Ontario Long Term Care Association (OLTCA) which issued a public call on Wednesday to support the new legislation.
Donna Duncan, the CEO of the association, said the new law will help protect the industry.
“Long-term care homes care for more than 79,000 residents across Ontario and they deserve quality healthcare and safe accommodations. Liability protection is a necessary measure to stabilize and renew Ontario’s entire long-term care sector. Without it, many insurance companies will cease coverage, as they have already begun to do, putting homes across the province at risk and jeopardizing their expansion and renewal," said Duncan.
She said there are roughly 36,000 Ontario residents on the wait lists for long-term care and the number of Ontario seniors over the age of 80 is expected to double within 14 years.
"We need a strong long-term care sector that can respond to rapidly growing needs positioned to provide high quality and compassionate care. We welcome today’s announcement, which includes healthcare workers and institutions working in good faith on the frontlines of the fight COVID-19, and we call on all parties to support this proposed legislation to secure its quick implementation," said Duncan.
She said the new law would not absolve anyone of gross negligence. She said there is still zero tolerance for any abuse or neglect of seniors and any reckless or irresponsible home operator would still be held accountable.
