Coalition challenges decision to allow expansion of long term care home with high COVID death rate

An Ontario court was scheduled to hear on Thursday a challenge to the province's decision to grant a new licence to a Pickering long-term care home where more than 70 residents died during the COVID-19 pandemic.

The Ontario Health Coalition (OHC), an advocacy group, was set to argue the province's approval of a new 30-year licence and expansion plan for the Orchard Villa Retirement Community is at odds with a 2022 law ostensibly intended to bring greater accountability to the long-term care sector.

The hearing was set to be heard in Ontario Superior Court in Toronto before a panel of judges starting Thursday morning. The coalition had planned to ask the court for a judicial review of the decision and to quash the licence.

The for-profit Orchard Villa is owned by Southbridge Care Homes, which operates about three dozen facilities throughout Ontario. During the first wave of the COVID-19 pandemic in early 2020, 206 of Orchard Villa's 233 residents contracted the illness and more than 70 died.

Orchard Villa was among five Ontario long-term care homes scrutinized in a scathing 2020 report by the Canadian Armed Forces, which had been deployed to assist facilities overwhelmed by COVID-19.

The report said military personnel witnessed a litany of unhygienic and dangerous practices which likely contributed to the rapid spread of the virus within the home. In some instances, residents were "left in beds soiled, in diapers, rather than being ambulated to the toilets" while others were severely dehydrated or malnourished. Some military members reported seeing cockroaches and flies, the report said, and staff were overwhelmed and burned out.

Province promised higher standards

In the wake of the report, Premier Doug Ford said his government would introduce new and more rigorous standards for long-term care home operators in the province. The Fixing Long Term Care Act went into effect in 2022, with the province promising standards in seniors' homes would be would be "the highest in North America."

Last year, then minister of long-term care Paul Calandra issued a ministerial zoning order to speed up a redevelopment plan for the Orchard Villa site and two others also owned by Southbridge. The plan for Orchard Villa includes an 88-bed expansion, and leaves the door open to a more significant future expansion that would see 832 long-term care beds in three towers on the site.

Alongside Cathy Parkes, the daughter of an Orchard Villa resident who died in 2020, the OHC says it planned to argue the licence extension and expansion plans for the facility violate the terms of the Fixing Long Term Care Act.

"The government cannot issue licences to long-term care home owners when their past conduct offers reasonable grounds to believe that the home will be operated in a manner that is prejudicial to the health, safety and welfare of its residents," the OHC said in a news release ahead of Thursday's hearing.

Parkes told reporters before the hearing that she would like to see direction from the court that would protect long-term care home residents.

"What I'm hoping for today is that there will be a really clear decision that the ministry has to follow their own act, which states that they have to take the history of the long term care home into account before they can issue a licence. I just don't want to see anyone else have to suffer the way my father had to suffer," Parkes said.

Government argues for dismissal

In a filing to the court, the government argued the challenge should be dismissed, saying the Ministry of Long-term Care followed its own procedural standards in approving the licence and expansion plan. It also noted that during the first wave of the pandemic, Orchard Villa was managed by Extendicare, another for-profit operator, and that care has improved since Southbridge took over.

Speaking on Wednesday, Long-term Care Minister Natalia Kusendova-Bashta said Durham Region is facing significant capacity pressures on its existing care homes. 

"As someone who has worked on the front lines and having cared for seniors and patients during the pandemic and myself experiencing people dying in my care, I understand the trauma and sadness involved," the former nurse told reporters.

"Having said that we have had many learnings from the pandemic and we have evolved and innovated," she said.