The global health crisis that has disproportionately affected seniors provides a unique and unprecedented backdrop for such civil actions, which have emerged in Ontario and Quebec in recent weeks, experts say.
While nursing homes cannot be blamed for the pandemic, they can be held responsible for unnecessary and preventable deaths, said Michael Smitiuch, a Toronto lawyer who had previously successfully pursued a negligence lawsuit against a Brampton, in Ontario. establishment for the elderly.
“A crisis like this does not give nursing homes a free pass to neglect the elderly. So I think what’s going to happen is … we’re going to look at it from the perspective of what was reasonable under the circumstances, “he told me.
“The interesting question will be: what is the standard of care during a pandemic? “
Courts will likely consider requirements and guidelines issued by ministries of health, the World Health Organization and other similar bodies to assess whether accused have been negligent, said Smitiuch.
The new coronavirus has ravaged private, government-run retirement homes, particularly in Canada’s two largest provinces, causing a large proportion of the more than 3,000 deaths in the country.
Several proposed class actions allege negligence
The rules and standards for nursing homes have evolved rapidly as public health officials respond to the crisis, with several provinces now prohibiting staff from working in more than one facility.
However, a number of the proposed class actions claim negligence on the part of governments or nursing home operators in their management of the virus.
In Quebec, the son of a 94-year-old woman who died of COVID-19 in one of the province’s most affected facilities has filed a class action lawsuit against CHSLD Ste-Dorothée, a government business.
Meanwhile, a Toronto law firm has brought a class action lawsuit on behalf of all Ontarians living in long-term care homes to the provincial government.
He alleges that the province’s failures in supervising the facilities resulted in widespread preventable illness and death during the pandemic.
Another such lawsuit by two Ontario men whose mothers died from COVID-19 is against Revera, a private nursing home company.
None of the cases have so far been certified as a class action, and their claims have not been tested in court.
Lawyer Says Class Actions Face Several Barriers
Scott Stanley, a personal injury lawyer in Vancouver, said that these and all of the other lawsuits that will arise in the coming months will face many obstacles in meeting the criteria for negligence.
First, he said, it can be difficult for complainants to show the actions of operators or the government behind the deaths.
“If the theory is, well, the workers were able to go from one home to another and transmit the virus – it’s a theory, but you have to prove factually that it actually affected or infected other people, “he said.
It can also be difficult to demonstrate that the care provided is below established standards, especially in lawsuits against governments, as it is measured against the standards they have created, said Stanley.
Governments could also introduce legislation to protect themselves from lawsuits related to COVID-19, although there is a “lively debate” on whether they can prevent cases involving violations of rights guaranteed by the Charter, he said.
These laws are generally “very unpopular” politically, he said.
Damages awarded can be minimal, expert says
Even if one of the proposed class actions succeeds, the complainants may be shocked to find that the damage they receive is minimal, he said.
“People are not compensated for the loss of camaraderie, the loss of friendship of a deceased elderly person,” he said.
“You essentially compensate for the loss of economic benefits they have brought you. And most older adults are unable to provide economic benefits … so in many cases these requests are actually worthless. “
In truly egregious cases, a nursing home could face punitive damages, which are supposed to deter certain behaviors, said Smitiuch, the lawyer for Toronto.
Governments should also consider an investigation into how nursing homes responded to the crisis, he said.
“It would be something that would be precious for the future because we will no doubt be faced with something like this in the future,” he said.
Three professional orders in Quebec have declared that they will conduct a joint investigation into the situation in homes for the aged and long-term care since the start of the COVID-19 pandemic.