SHIELDED FROM SHAME: CIVIL IMMUNITY FOR ONTARIO'S LONG-TERM CARE FACILITIES IN THE WAKE OF COVID-19.

• Author: Novakovic, Steve
• Position: Canada

I INTRODUCTION 258 II WHAT WENT WRONG, AND WHY? 261 A. Canada's Approach to Healthcare for the Elderly 261 B. Privatization of Long-Term Care: The Dream Versus 265 the Reality C. Summarizing Elderly Care in Ontario and the 271 Outbreak of COVID-19 III WHAT IS TO BE DONE? 272 A. Negligence, Civil Immunity, & Long-Term Care 273 B. SORAand Long-Term Care Liability Protection 283 C. The Pernicious Consequences of Denying Tort 287 Accountability IV CONCLUSION 299 I INTRODUCTION

The outbreak of the novel coronavirus ('COVID-19') pandemic in Canada in the spring of 2020 brought with it many changes and challenges for all Canadians: isolation, social distancing, and an ever-present risk of infection from a highly virulent disease with a not insignificant mortality rate. (1) And yet, not all Canadians were equally impacted by this outbreak. Across Canada, elderly residents in long-term care facilities ('LTCFs') tragically bore the brunt of the pandemic's initial onslaught. LTCFs quickly became epicentres of the COVID-19 pandemic in Canada, with residents accounting for 80% of Canada's COVID-19 fatalities. (2)

In Ontario, the statistics on the matter underscore a catastrophic scale of suffering. Between 29 March and 20 May 2020 alone, there were 190 outbreaks of COVID-19 in LTCFs, involving 5218 residents, of which 1452 died, representing an overall case fatality rate of 27.8%. (3) How did this happen? To be sure, the nature of long-term care entails endemic challenges and vulnerabilities: patients are at a heightened risk of morbidity and mortality given their advanced age, frailty, and general multimorbidity; moreover, congregated living arrangements and exposure to asymptomatic or pre-symptomatic staff augments their risk. (4) However, despite these predisposing risks, this article is premised on the understanding that Ontario's long-term health system--which, regardless of governmental funding, permits LTCFs to be owned and operated by for-profit, non-profit, and public entities--has been eroded in efficacy by the forces of privatization and a paucity of regulatory intervention. (5) Resultantly, Ontario's LTCFs were precariously understaffed and underequipped to protect the welfare of their residents in the face of such a pandemic.

Beyond the morbid statistics, the dangerous conditions of Ontario's LTCFs were brought to the fore of public consciousness through the intervention of the Canadian Armed Forces ('CAF'). As a result of rising casualties, gross understaff ing, and deteriorating care conditions, Ontario (and Quebec) requested military assistance, which was delivered in the form of CAF personnel staffing five facilities in Ontario for two months effective 28 April 2020. (6) Concurrent reports released by military authorities in Ontario and Quebec revealed a system in disarray: LTCFs were overrun, with disturbing accounts of underpaid and underequipped personal support workers abandoning their jobs for fear of infection; grossly deficient infection controls; and abhorrent standards and practices of care. (7) To summarize further, CAF personnel encountered unimaginably dire situations, with instances of frail patients found with unattended wounds, dehydrated, hungry, and covered in feces. (8) Public consternation was swift, with Ontario's Minister of Long-Term Care acknowledging that such care in the province was long "ignored" and "neglected." (9)

In response to such abhorrent conditions of care and attendant risk implications for exposure to and spread of the virus, there have been at least two dozen legal actions raised in Ontario against LTCF operators and the province itself. (10) These include filings by family members for personal and class action suits, an injunction, and a request for criminal investigation. Almost from the outset, these legal actions have been met with intensive lobbying efforts by long-term care 'industry' representatives, seeking legislation providing civil immunity protection from the province. (11) As Donna Duncan, the CEO of the Ontario Long-Term Care Association, intimated, the argument is an existential one for the industry: without such protection, many long-term care providers would be uninsurable in the wake of COVID-19 and thus unable to continue operating. (12)

This reasoning appears to have traction. British Columbia has already passed a cabinet order in spring 2020, affording those providing essential services protection from liability for damages relating to COVID-19. (13) At the time of writing, it appears the lobbying may have worked in Ontario too. The province recently enacted the Supporting Ontario's Recovery Act, 2020 ('SORA') which grants broad civil immunity to businesses, workers, and volunteers who were making a "good faith effort" to follow public health guidelines (while still permitting lawsuits against those who did not abide by guidelines or those who by "gross negligence" endangered others). (14)

This article contends that such civil immunity, insofar as it applies to Ontario's LTCFs, should be opposed. As will be shown, Ontario's systemic long-term care shortcomings are deep-rooted and multi-causal; accordingly, a multi-factorial response will be necessary. Such a response will doubtlessly entail much needed regulatory reform, to be informed by investigative commissions and their future findings. (15) However, it remains a critical contention of this article that tort liability in negligence should have an important role to play in the reformative processes that follow this tragedy. For directly impacted victims and for the public alike, tort liability serves as an important medium for accountability, and should not, accordingly, be proscribed without caution and due regard for the costs its absence may impart. With this in mind, the central contention of this article is that the proscription of tort accountability for LTCFs as envisaged in SORA stands to do more harm than good.

This argument will be developed in two parts. In Part I, a contextual background for the state of Ontario's long-term care facilities will be provided. A key premise of this article is that the pandemic exacerbated pre-existing problems within Ontario's long-term care sector and so separate treatment is needed to define those problems in earnest if any effort is to be made in apportioning responsibility for the catastrophic consequences that followed the outbreak of the pandemic. To do so, attention will first be placed on the statutory framework as it applies to the provision of long-term care in Ontario so as to identify the different types of actors in the 'industry' and their varying modalities of service funding and delivery. The implications of these varied funding and delivery models will be considered in turn. Second, and relatedly, the increasing reliance on privatized long-term care in Ontario will be examined, both in terms of the attributes and policies that define it and in respect of the negative implications it presages for quality of care. The cumulative aim of this contextual examination is thus to define the complex and precarious state of long-term care in Ontario prior to the outbreak of COVID-19 with a view to better understanding how it made residents and workers so susceptible to the deadliest aspects of the pandemic. More saliently for subsequent liability analysis, it will also allow us to consider the extent to which privatization and deregulation in the long-term care sector set the stage for such a deadly outcome.

Building on this background, Part II will aim to illustrate the imprudence of granting civil immunity to LTCFs in the wake of COVID-19 on the premise that any putative public benefit it may return is outweighed by the harm it portends to both victims and the public at large. This will be achieved in two steps. First, with reference to the constituent elements of successful medical negligence claims, analysis will focus on the positive value and utility of civil immunity provisions as applied to healthcare providers in times of emergency. Discussion will then shift to why such justifications for civil immunity should not apply to long-term care providers in Ontario in the manner envisaged in SORA, with emphasis placed on the factual matrix laid out in Part I of this article. Second, analysis will focus on the three most salient negative (and interrelated) consequences that would follow granting civil immunity to LTCFs, namely: the denial of corrective justice to victims; the inequitable inconsistency of permitting privatized gains while socializing losses; and the removal of a key impetus for systemic reform. In so doing, the necessity of tort law as a vehicle for accountability and systemic change in long-term care in the wake of COVID-19 will be defined.

II WHAT WENT WRONG, AND WHY?

1. CANADA'S APPROACH TO HEALTHCARE FOR THE ELDERLY

   LTCFs serve to accommodate "mainly frail older people who are unable to live independently in the community due to medical and functional frailty, and who require support and assistance with activities of daily living and 24-hour nursing supervision." (16) For the reporting year prior to the pandemic, there were 189,662 long-term care residents in 1,318 facilities in Canada, outside Quebec. (17) The vulnerability of these patients is evident in the accompanying statistics: the average age of these patients was 83 and over two-thirds were women. (18) Of note, over 70% of patients had heart or circulatory diseases, over two-thirds had neurological diseases including dementia, and over half had musculoskeletal diseases. (19)

   As with hospitals, the provision of long-term care to the elderly is regulated at the provincial/territorial level. (20) Although it is the case that, nationally, provincial governments provide over 70% of funding, long-term care is nevertheless not encapsulated within the framework of the Canada Health Act and the single-payer system it governs. (21) Consequently, public...