The Current

Potential immunity measure against COVID-19 lawsuits could hold up accountability: daughter of late resident

The daughter of a man who died of COVID-19 in an Ontario long-term care home says she is worried potential legal immunity for health-care providers could derail efforts by families to seek accountability.

'The trust between the families who have lost loved ones and the government has been broken': Cathy Parkes

Cathy Parkes, whose father Paul William Russell Parkes died last month in Orchard Villa in Pickering, Ont., is suing the facility. (CBC)

The daughter of a man who died of COVID-19 in an Ontario long-term care home says she is worried potential legal immunity for health-care providers could derail efforts by families to seek accountability.

"To me, it screams of protection for for-profit homes, and that's not the way we need to go in this province," said Cathy Parkes, who is suing the long-term care home her father resided in. 

Last week, CBC News reported that the Ontario government is considering some degree of immunity from COVID-19-related lawsuits against organizations and people who acted in "good faith" during the pandemic.

Ontario Premier Doug Ford confirmed his government is considering the move, adding that he is "not supporting bad actors," and will seek accountability from the long-term care sector. The province ordered an independent commission into COVID-19 deaths at long-term care facilities in May.

Though it is unclear how this might affect lawsuits that have already been filed against long-term care homes, Parkes says she still intends to sue the facility where her father, Paul Parkes, died on April 15.

Her family's suit, filed at the Ontario Superior Court last month, alleges that Orchard Villa Retirement Residence in Pickering, Ont., was negligent in protecting the facility's residents and her father. None of the claims have been tested in court.

The Current asked Orchard Villa for a response to Parkes' allegations, but did not hear back. The facility told CBC's Marketplace that it cannot comment on individual matters for privacy reasons, but added that staff had "reached out to health partners and the government early and often and all assistance provided was welcomed."

Responding to the premier's statement that the province will seek accountability, Parkes says she has questions about who determines the "bad actors."

"It sounds to me like he gets to decide who the bad actors are, and we're now having a crossover of government into litigation," she told The Current's Matt Galloway.

"It's overstepping the bounds. The trust between the families who have lost loved ones and the government has been broken."

Both Ontario's Minister of Long-Term Care Merrilee Fullerton and Attorney General Doug Downey declined The Current's request for an interview. Ford did not respond to the request.

As of June 22, there have been 1,803 reported deaths of long-term care home residents during the COVID-19 pandemic, according to provincial numbers. Orchard Villa was the worst-hit long-term care home in the province, with more than 230 cases and 70 deaths.

Families at Ontario's worst-hit nursing home say they feel the home misled them about COVID-19 care options. David Common investigates whether Orchard Villa staff discouraged families from sending their loved ones to the hospital and refused outside help when it was offered as the outbreak ramped up in the home. 8:42

Hard case to fight

Lorian Hardcastle, assistant professor at the University of Calgary's faculty of law and Cumming School of Medicine, is concerned by the potential immunity provision.

"The kind of accountability the families are seeking, and the kind of accountability that Premier Ford has proposed, are two different things," said Hardcastle.

"An inquiry that's driven by the government and generates recommendations that the government may or may not implement ... is very different than the families being able to drive the litigation and seek their own answers."

Hardcastle says long-term care homes that have managed the pandemic effectively have little threat of liability. Just because a residence faced an outbreak, she explained, doesn't mean they would be held liable.

"The standard in negligence is one of reasonableness, it's not one of perfection," she said, adding that winning a lawsuit alleging negligence in death can be an "uphill battle."

"I think in this case, perhaps there's a bit more clear-cut deviations from what we would consider to be reasonable care than we see in other kinds of cases," she told Galloway.

A bench adorned with balloons and flowers stands outside Orchard Villa Care home, in Pickering, Ont., on Saturday, April 25, 2020. (Chris Young/The Canadian Press)

Ontario isn't the only province mulling the possibility of immunity from legal action. The B.C. government has already passed a cabinet order that would protect any person or corporation "providing an essential service" from liability for damages related to COVID-19.

"Even with these immunity protections in place, you can still sue to argue, for example, that there was bad faith or gross negligence, and so it isn't really yet clear what will happen in B.C., but that's a high bar," Hardcastle said.

Association welcomes independent commission

The head of Ontario's long-term care home association says the immunity provision is needed to protect long-term care homes' insurance eligibility, but they're not seeking "universal amnesty."

"Our priority, quite honestly, is making sure that we are able to have homes that can continue to operate and provide good care, and good solid care, across the province," said Donna Duncan, CEO of the Ontario Long Term Care Association.

"Insurance is — for us as operators — it's unfortunately one of those things that we need to make sure that we can continue to have access to in order to operate."

Before COVID-19 ravaged long-term care facilities, Duncan says the sector was facing a "perfect storm" of run-down buildings, outdated standards and staffing shortages, adding she welcomes the provincial commission.

"We have to find a way to come together to redefine what long-term care looks like in this province," she said.

Written by Jason Vermes. Produced by Sarah-Joyce Battersby.