Families, advocates slam Ontario's Bill-218, calling it a 'powerful weapon' for LTCs to fend off liability

A group of advocates, lawyers and families with loved ones in long-term care have issued a joint call to the Ford government to amend legislation they say makes it "significantly harder" to hold homes responsible for illness or death stemming from exposure to COVID-19.

The Advocacy Centre for the Elderly, a community legal clinic focused on seniors' issues, along with the Ontario Health Coalition and a law firm representing families impacted by COVID-19 held a press conference Wednesday to voice their concerns over Bill 218. The groups say it creates a barrier to justice for residents and their families to hold homes accountable for neglect or disregard amid the novel coronavirus pandemic. 

The bill, introduced in October, would provide liability protection to various businesses, non-profits and workers against COVID-19 exposure-related lawsuits. 

If passed, Attorney General Doug Downey said last month, it would ensure anyone making an "honest effort" to follow public health guidelines would not be held liable for harms related to exposure to the virus in civil proceedings. 

The government has said the legislation will not protect "bad actors" who willfully, or through "gross negligence," endanger others.

Critics say the move creates a higher threshold for families of residents — who already face an unequal power dynamic with the homes they entrust with their care — requiring them to prove not only negligence but gross negligence, without financial resources of multi-million dollar long-term care and retirement home companies. 

Move 'only amplifies' pain of loss, says family member

Greg McVeigh is one of those family members. His parents died just nine days apart.

"My parents both served their communities with honour," he said. 

"Throughout this pandemic, hardworking people like my parents due to their age and disability were treated like second-class citizens. They were an afterthought, expendable," he said.

"If it wasn't bad enough that their rights were diminished while alive, the province wants to remove rights away from their estates."

"The hurt is immeasurable," he said. "Taking away rights from their estate only amplifies this pain."

Bill 218, he said, prevents families like his from finding some form of justice and ultimately closure for deaths, he says were preventable. 

In a statement to CBC News, a spokesperson for Attorney General Doug Downey said: "We want all Ontarians to know that individuals and organizations that deliberately ignore public health guidance or act with gross negligence or intentional misconduct will not be protected by this legislation."

"The narrow, targeted, civil liability protection in this legislation has only to do with the inadvertent transmission of COVID-19, and will provide protection only to those who acted in good faith and made an honest effort to follow public health guidance and laws respecting COVID-19," the statement said.

"This legislation does not protect any other type of negligence, like if a resident is malnourished and is not given proper medication, or if a long-term care provider fails to provide the necessities of life, have adequate staffing, or communicate adequately with families."

'No accountability, no responsibility'

"For those individuals that are unable to prove gross negligence, there is no accountability, no responsibility," said Gary Will, managing partner of Will Davidson LLP.

The legislation provides long-term and retirement homes with "a powerful weapon" to fend off lawsuits from family members, he argues.

"The Conservative government is more concerned with their friends in the long-term care industry and insurance industry than they care about residents and the elderly in long-term care," he said.

Beyond the political dimensions however, executive Director of the Advocacy Centre for the Elderly Graham Webb says long-term care and retirement homes should be "cut out" of Bill 218, saying there are no case precedents to rely on when it comes to defining what gross negligence is when it comes to the long-term care industry.

"Good public policy demands that they should be held accountable in damages when they cause harm or injury to their residents through their acts or omissions that amount to either negligence or gross negligence," Webb said.

Advocates want LTCs, retirement homes cut out from bill

Natalie Mehra, executive director of the Ontario Health Coalition noted hearings on the bill held earlier this month were limited, with just 15 spaces made for families and advocates to make presentations despite some 58 people applying to be heard.

The organization also asked for long-term care and retirement homes to be removed from the scope of Bill 218, but Conservative MPPs voted against the idea. 

"There's a time when things are just so wrong and you can no longer accept to see them happen," Mehra said through tears. 

"This is beyond anything that anyone in our society would consider moral."