CLASS-ACTION LAWSUITS IN ONTARIO COULD SIGNAL THE START OF SIMILAR LAWSUITS ACROSS CANADA.
Despite governments having broad immunity against COVID-related lawsuits, the recent debate over Ontario’s role may have an impact nationally. An article published by the Ottawa Citizen in January 2023 reflects on the “legal showdown” occurring in Canada’s capital. Class-action lawsuit charges that the province was “grossly negligent” by failing to prevent the waves of long-term-care deaths at the beginning of the pandemic.
In 2020, an Ontario Law barred almost every type of COVID-related legal action that could be taken against the Government. A judge has since then ruled that families of nursing-home victims may sue the minister of long-term care. In this ruling, the judge cited the plaintiffs’ contention that the government showed bad faith and an acute degree of negligence.
Justice Edward Belobaba of the Ontario Superior Court ruled that there is at least some chance that these allegations can be proven at trial. This decision crosses a major hurdle against once seemingly steep odds. However, lawyers will still have to convince a trial judge that the minister should be held liable for the deaths, or at the very least, persuade the government to settle out of court.
Toronto Lawyer, Joel Rochon, is spearheading the class action and argues that a legal judgment would have unique benefits despite the problems that led to the deaths being exposed. Rochon stated in an interview that making the issues public is one thing, but a class action of this nature bears the potential for behaviour modification.
The lawyer also stated that we know there will be another pandemic, whether it be in 10 years or 20 years,
“ This kind of lawsuit will send an important message to governments, not only in Ontario but right across the country, that they have to really take the precautionary principle seriously.”
Ontario has already appealed the judge’s decision, claiming that the judge made legal errors on numerous points and that the decision would seriously impact the principle of government immunity.
Government lawyers asked at a notice of appeal,
“Is it sound to depart from the settled law that establishes that Crown officers, including ministers of the Crown, are not subject to lawsuits by private citizens in respect of directives they may issue only in the public interest?”
It is no secret that long-term-case home residents suffered a heavy toll from COVID, all around the world, with the crisis in Ontario being particularly severe. Ontario nursing homes recorded 5,044 COVID-related deaths by last July when the province cut back on public reporting of data. The only province which exceeded this number was Quebec with over 8,000 fatalities.
Reports by the provincial auditor general and the Ontario long-term-care COVID-19 commission indicated that a history of neglect and underfunding in nursing homes was a factor. The commissions also cited delays in implementing preventive measures when they should have been alarmed due to outbreaks in other jurisdictions.
Belobaba quoted evidence from Microbiologist, Dr. Dick Zoutman, who acted as the plaintiffs’ expert witness. Dr. Zoutman told the court that 90% of the deaths could have been avoided if the province had acted sooner to implement measures.
The report claims the outbreaks were preventable, stating that
“Had Ontario adopted, mandated and enforced timely, measured, and consistent steps to implement the available and accepted (infection control) practices, the vast majority of the outbreaks and the deaths that occurred in LTC homes would have been prevented.”
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From Ottawa Citizen