Bill 218: The Death of Memory

It was on or about May 20 that the Canadian Armed Forces submitted what has to be described as a whistleblower report to the federal government as to the conditions of the long-term care homes in Ontario. In part, this report detailed cases where residents had not been fed or bathed and many were literally crying out for help. Cockroach infestation, terrible hygiene, residents being force-fed, people being left in their own feces for hours and days.

To quote Prime Minister Trudeau, “We need to do a better job of supporting our seniors in long-term care right across the country, through this pandemic and beyond.”

It is highly unlikely he was thinking of Bill 218, Supporting Ontario’s Recovery Act, 2020.

At this writing, in the early part of November, some 1,934 deaths in Ontario have been reported in long-term care facilities, more than half of all COVID-19 deaths in Ontario, reflecting how fatal this pandemic has been for our older and most vulnerable people.

We speak about family members, yours and mine, with fluctuating or diminished capacity such as dementia. These family members are those who may well not have the ability to get or even ask for help because of various limitations. (For numbers on dementia, see Alzheimer Society of Canada).

Does anyone really know what is going on in these long-term care facilities today? Certainly, the public does not. Often family and friends have literally been banned from visiting their loved ones. Who is there to take protective action?

Warning signs have always been there. Where were we? Did it even matter?

The World Health Organization defines elder abuse as “a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust that causes harm or distress to an older person.” The UN Convention on the Rights of Persons with Disabilities provides us with an underlying duty to protect these vulnerable people in care.

Historically, when you think about it, we have denied people with disabilities the right to marry, to attend school, to reproduce and even to live among us. Bill 218 may well add another denial, the right to enforce their own human rights. It was not that long ago that we experimented with human lives and we “committed” those with mental illness allegedly to secure facilities.

No due process. No rights and no humanity. This legacy and the intended wiping out of the memories of loved ones who have died because of the negligence of long-term care providers is surely unacceptable to say the least. One would expect that our laws are there to promote and protect the well-being of our citizenry.

Bill 218 received the second reading on Oct. 22. The Explanatory Note states in part:

The Supporting Ontario’s Recovery Act, 2020 is enacted. Section 2 of the Act provides that no cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020, as a direct or indirect result of an act or omission of the person if,

(a) At the relevant time, the person acted or made a good faith effort to act in accordance with, (i) public health guidance relating to coronavirus (COVID-19) that applied to the person, and (ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and (b) the act or omission of the person does not constitute gross negligence.

In the Interpretation, s. 1 (1): “‘good faith effort’ includes an honest effort, whether or not that effort is reasonable.”

In explaining Bill 218, the Attorney General of Ontario seems to suggest that one reason for Bill 218 is that “too many lawsuits from families who lost loved ones to COVID-19 in long-term care would ‘gum-up’ the legal system.” (Emphasis added.)

Premier Doug Ford has suggested that Bill 218 will not shield negligent providers. The problem, of course, is that this is not what Bill 218 says. With its immunity provisions, this bill arguably bars actions alleging ordinary negligence. Negligent care, with respect, may not equate with being grossly negligent.

And the definition of “good faith effort” is an interesting standard of care. What the bill appears to do, or attempts to do, is a limit liability for substandard care and goes another step further in terms of retroactivity to March 17.

To quote Sir Edward Coke’s canon (Vol. 2, Institutes of the Lawes of England, 292), it is “a rule and law of Parliament that nova constitution futuris formam imponere debet non praeteritis,” that statutory enactments generally are to be regarded as intended only to regulate the future conduct of persons. Anything would be a flagrant violation of natural justice to deprive people of rights acquired according to the law of the time. (See e.g. West v. Gwynne, [1911], 2 Ch. 1 per Kennedy L.J.) (Emphasis added.)

With respect to what has happened in our long-term care facilities and the history of poor quality of care and even infection control procedures, there is a strong argument to be made that these tragedies could have been foreseeable even though COVID-19 may not have been. Long-time deficiencies in these facilities have been documented.

Liability for poor care, for bad care, for negligent care is not just about money. We know from experience that civil liability has often provided the incentive to comply with our laws in a more meaningful way.

Those families affected by the deaths of ones they loved who were in long-term care facilities have the human right to expect accountability and to be able to find out how they died, and we have a responsibility to keep their memories alive.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.