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Critics say Ford’s new long-term care legislation makes it harder to sue the facilities

Posted: October 22, 2020

(October 21, 2020)

By: Clarrie Feinstein, Daily Hive Toronto

Critics say Ford's new long-term care legislation makes it harder to sue the facilities

Doug Ford / CPAC

Premier Doug Ford’s new legislation that aims to provide liability protection for workers and organizations that follow COVID-19 health guidelines, is facing backlash.

On Tuesday, the Ontario government introduced the Supporting Ontario’s Recovery Act, 2020, that if passed, will provide liability protection for workers, volunteers and organizations that “make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19.”

At the same time, the government will also allow people to take legal action against those who willfully, or with gross negligence, endanger others.

The legislation is facing backlash from the NDP and Ontario Health Coalition (OHC) for protecting long-term care homes, making it “significantly easier” for a home to defend itself, because now gross negligence must be proven, which is harder to convict.

On Wednesday, Ford said if there has been “gross negligence continue suing them and hold them accountable.”

The premier told people to talk to their legal advisor and “get this clear.”

“In no way will we protect the negligence of long-term care providers. If you feel they’ve been negligent sue them,” he said.

He emphasized that the bill does not make it harder for long-term care homes to be sued.

When asked about the families who are angry with the new legislation as it makes it harder for them to hold the facilities accountable during the pandemic, Ford said his “heart breaks for anyone that passed away in homes that were negligent.”

Official opposition leader Andrea Horwath said the Ford government tabled a bill “obviously designed to shield itself and for-profit long-term care corporations from accountability.”

“More than 1,900 people have died in long-term care during this pandemic, shattering thousands of families. Doug Ford didn’t protect them — but is now protecting the very companies that let them die in horrible conditions,” she said in a statement.

And the OHC said Bill 218 would “make it significantly harder for residents and families to hold long-term care homes liable for harm resulting from exposure to and infection with COVID-19.”

The bill is retroactive to March 17, 2020 meaning “the legal rights of those who were infected, potentially infected or exposed to coronavirus on or after March 17, 2020 will be compromised by the legislation, if it is passed, no matter when they started any legal actions,” the statement explains.

According to OHC, the major changes in the legislation is that gross negligence must now be proven instead of ordinary negligence.

“This is a significant difference which requires proof of a higher legal standard that is more difficult to prove,” they add.

Also it redefines “good faith effort” to “honest effort whether reasonable or not.”

Currently a good faith effort means one must comply with legislative, regulatory and policy requirements to perform a “competent and reasonable effort.” This is no longer the case.

The coalition notes that on Ontario, more than 70% of the deaths from COVID-19 in the first wave have been in long-term care homes, according to a CIHI analysis of the first wave.

Already, legal actions have been started, alleging negligence and failure to follow public health measures—especially against for-profit long-term care home chain companies.

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