Lawyers representing long-term care residents who suffered or died during the COVID-19 pandemic argued a class-action suit against hundreds of homes is the best way for those patients — and their loved ones — to get justice.
On Monday, plaintiff lawyers laid out their case before a Superior Court judge who will decide whether or not the proposed class action can go ahead. The suit, which is actually eight proceedings combined, names 304 independent and municipal homes, capturing almost half of the long-term care facilities in Ontario.
Joel Rochon of Rochon Genova argued the homes took a reactive, "wait-and-see" approach and "inexplicably" failed to follow the precautionary principle even while watching the disease take hold in Asia, resulting in thousands of unnecessary deaths.
He read from Armed Forces reports and other inspections, reiterating "deplorable" findings: forceful feeding, audible choking, patients crying for help with no response for hours, a lack of sanitary conditions and infection prevention and control (IPAC) measures, insufficient PPE supplies, and chronic understaffing.
Rochon said the dozens of deaths and lack of IPAC measures at Downsview Long Term Care Centre, one of the homes in which the army intervened, was "a typical summary of what many, many of the homes experienced.”
Hundreds of provincial inspections resulted in “finding after finding of non-compliance relating to IPAC,” including multiple violations in the same home, over multiple days, involving multiple staff members, Rochon said.
“These are not merely isolated incidents of IPAC breaches," Rochon said. “Our claim is systemic in nature.”
The class of plaintiffs shouldn't be limited to those who caught COVID — it should include those whose care suffered due to the homes' poor preparation for the pandemic, Rochon argued.
One party not named in the suits is the Ford government. Another Rochon Genova class action, alleging "gross negligence" by the government during the pandemic was certified by the late Justice Edward Belobaba almost exactly one year ago.
But the province appealed that decision, said Golnaz Nayerahmadi, the plaintiffs' co-lead counsel with Rochon. Her firm filed a cross-appeal — asking a higher court to decide whether the government's appeal should go ahead — which was heard in November. There hasn't been a decision yet.
During Monday's proceedings, Long-Term Care Minister Stan Cho announced a new team of investigators for long-term care. Asked about the class action, Cho said his government is spending on the sector that previous governments ignored.
"As difficult as the pandemic was, we learned lessons from that," he said. "And we understand with the growing senior population, the time to continue investing is right now. Let's not repeat the mistakes of the past."
NDP Leader Marit Stiles said the government has avoided responsibility for pandemic long-term care deaths, "which we know could've been avoided if the government was properly regulating long-term care."
She called for more public nursing homes, which generally had better safety results during the pandemic, instead of favouring the "interests of private long-term care providers and their shareholders."
Class actions now have to clear a higher bar in Ontario. Ford government legislation to that effect faced its first test recently — a new standard that Nayerahmadi said will likely make lawyers do a little more homework, but shouldn't negatively affect access to justice.
Class actions in Canada are certified based on how well they meet three criteria:
- Behaviour modification — whether it's the best way to change the defendant's actions for the better;
- Access to justice — whether it's the best or only way for the plaintiffs to be made whole; and
- Judicial efficiency — whether the court would be best served by combining plaintiffs' cases
This proposed class action will easily meet the new requirements, and there is "no alternative" for the number of victims to access justice, Rochon said.
Rochon said the plaintiff side plans to finish its initial arguments on Tuesday. Lawyers for the defence will make their arguments starting either that afternoon or Wednesday morning. Next week, the two sides will get into the eight specific cases, Rochon said. The certification arguments will continue until Feb. 2.
With files from Sneh Duggal and Aidan Chamandy
