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Law firm will proceed with legal action against long-term care homes after COVID-19 deaths

Posted: October 23, 2020

(October 22, 2020)

By: Allan Benner, St. Catharines Standard

New provincial legislation that may protect long-term care homes from COVID-19 related lawsuits won’t stop an Oakville-based law firm from pursuing nine actions it has filed so far, including a class-action lawsuit filed against the owners of Lundy Manor in Niagara Falls.

But the legislation introduced for first reading on Tuesday — Bill 218, the Supporting Ontario’s Recovery Act — may make it harder to sue by requiring proof of “gross negligence.”

“I’ve been practising law for 35 years now and I’ve never had a case where I’ve had to prove gross negligence … It’s not very well defined,” said Gary Will, a managing partner from Will Davidson LLP.

“And why are you forcing these poor people to prove to a higher standard? … It’s going to make it very difficult for people to succeed on their claims.”

The legislation if passed would be retroactive to the start of the pandemic on March 17, and require people harmed as a result of exposure to the coronavirus to prove gross negligence on behalf of the long-term care home operator, rather than the current standard, which is ordinary negligence.

“Negligence has been the cornerstone of our law going back over 100 years,” Will said. “Now they’re saying, you can have a bad result. You can have died because of substandard care, but it doesn’t matter because we’re immunizing that bad conduct, or we’re requiring you to prove your case at a higher level.”

Nevertheless, he said, his firm will proceed with legal action it has started.

In addition to the suit against Lundy Manor and its parent company Oxford Living, Will’s law firm launched class-action lawsuits against several long-term care providers throughout the GTA where numerous COVID-19 related deaths have occurred.

For each of those claims, he said, the law firm did allege gross negligence.

The claims against the long-term care homes have yet to be proven in court.

The Ontario Health Coalition issued a statement Wednesday calling Bill 218 “morally reprehensible.”

“We are calling for this bill to be defeated,” said the organization’s executive director, Natalie Mehra.

The New Democratic Party also issued statements opposing the proposed legislation, sharing concerns of families who have lost loved ones in long-term care homes.

Niagara Centre MPP Jeff Burch called it a “wrong-headed move.”

“They should be concentrating on protecting seniors against COVID,” he said.

Premier Doug Ford has offered assurances that long-term care home operators will still be held accountable.

On Wednesday, Ford said: “By no means are we going to protect the negligence of long-term care providers.”

Although the province has said its legislation was designed to protect front-line workers and small businesses who are following public health rules and where COVID-19 exposure may occur inadvertently, Will said it also diminishes the deterrents that civil law offers.

“If they’re thinking that this bill is necessary to make things better and easier to reopen the economy or to provide a better level of care to people in long-term care homes, I mean it’s just the opposite effect because it really protects the bad actors.”

Will said he hopes the government will back down from implementing the legislation, “because this law should never pass.”

“I hope it can be defeated if enough people rise up and complain about it.”

Lundy Manor did not respond to requests for an interview Thursday.

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