Lawsuit alleges Ontario government failed to protect long-term care residents from COVID-19 pandemic

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The province of Ontario’s lax oversight of long-term care homes and failure to protect vulnerable residents from the coronavirus led to widespread preventable illness, suffering and death, a new lawsuit alleges.

Court documents filed in Ontario’s Superior Court of Justice on Monday accuse Premier Doug Ford’s government of discriminating against seniors’ homes and being “willfully blind” to the risks the highly infectious virus posed to the frail elderly.

“Ontario conducted its affairs with wanton and callous disregard for the class members’ interests, safety and well-being,” the statement of claim alleges.

Several proposed class-action lawsuits have been launched against private, for-profit owners of some of the hardest-hit homes in Ontario. But this is the first proposed class action that takes aim directly at the province’s stewardship of the sector, said Kirk Baert, a lawyer at Toronto law firm Koskie Minsky.

The Ontario Ministry of Long-Term Care is responsible for funding, regulating, licensing and inspecting the province’s 623 long-term care homes. The government pays home operators $182.23 a day for each bed, or $66,514 a year.

The lawsuit accuses the government of breaching its duty of care to nursing home residents, leaving them particularly vulnerable to the coronavirus.

The government failed to address a long-standing, chronic staff shortage; it did not act soon enough to stop staff from working in more than one facility; it did not provide health care workers at the homes with sufficient personal protective equipment, including face masks; and it did not ensure that residents with COVID-19 were separated from others, the statement of claim alleges.

Gillian Sloggett, a spokeswoman for Long-Term Care Minister Merrilee Fullerton, said she cannot comment on a matter before the courts. “Our government will continue to fight COVID-19 fiercely in Ontario and work around the clock to safeguard our most vulnerable community members in long-term care,” she said in an e-mail.

81% of COVID-19 deaths in Canada were in long-term care – nearly double OECD average

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Long-term care residents in Canada have accounted for about 80 per cent of all deaths in the pandemic. In Ontario, which along with Quebec has been hardest hit, 1,809 residents of seniors’ homes have died of COVID-19, the respiratory disease caused by the virus.

Koskie Minsky filed the lawsuit on behalf of proposed lead plaintiff Doreen Nisbet, an 89-year-old former resident of Orchard Villa who contracted the virus while living in the home in Pickering, Ont.

Her son, Simon Nisbet, received a telephone call from Orchard Villa on April 22, advising him his mother had tested positive for COVID-19, the statement of claim says. Over the following days, he watched from outside his mother’s window as her health deteriorated rapidly.

At Mr. Nisbet’s request, his mother was transferred by ambulance to Ajax Pickering Hospital on May 3. By the time she arrived, the lawsuit alleges, she had sustained kidney damage owing to dehydration. She has recovered, but remains in hospital.

Ms. Nisbet fared better than many other residents of Orchard Villa, where 70 have died of COVID-19, more than any other long-term care home in Ontario.

The Ford government eventually banned staff in long-term care homes from working in more than one place, and asked Ottawa to deploy the Canadian Armed Forces to help in some hard-hit facilities, including Orchard Villa. The government has also asked hospitals to take over management of 10 homes.

But all of those measures came too late for many residents, the lawsuit alleges. After the Premier declared a state of emergency in mid-March, he assured families that his government would take every step necessary to protect their loved ones in long-term care from the virus. “It wasn’t true,” the lawsuit says. “Ontario’s actions did not match its bluster – no ‘iron ring’ was built around [long-term care] homes, resulting in tragic consequences for residents and their families.”

In contrast to the government’s treatment of seniors’ homes, the lawsuit alleges, it took pro-active steps to prepare hospitals for the pandemic and an anticipated surge in COVID-19 patients by ensuring they had adequate staff and medical supplies.

There is no justification for this discrimination, the lawsuit says. “The impact of the differential treatment was to devalue the integrity, dignity and lives of the class members.”

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