Besieged Ontario residents clamouring for LTC class action lawsuits against both Premier Doug Ford and the province’s nursing home operators can officially strike Teflon Doug from their bucket lists.
Better yet, the heretofore bulletproof and untouchable King Doug of Ford Nation might even find himself conjoined in a class action as a co-Defendant with his idol, former Ontario premier Mike Harris, the man who holds the dubious title of Founding Father of For-Profit Long-Term Care in the province.
Ontario Superior Court Justice Edward Belobaba certified a class action lawsuit against Ford Family Privateering Inc., alias the Ford government, on behalf of families of deceased former clients of LTCs in late December.
Up next is Harris, until recently an LTC magnate and the face of the franchise who, with avaricious aforethought, laid the foundation for private-sector nursing homes during the Common Sense Revolution of 1995-2002.
By the time he had left office in a state of disgrace 20 years ago, Harris had severed LTCs from the public health system and converted them to profit centres. He then quickly and conveniently embraced a new career as a corporate director at Chartwell Retirement Residences in what might be his longest-running, and likely most lucrative side hustle.
It is alleged Harris (who perhaps tellingly stepped down as Chartwell board chair only six months ago) and his colleagues ran and continue to run negligent LTCs under cover of Ford’s blatantly tilted legislation that rewrites common-law concepts of liability. But Harris et al. might end up drowning in their own shareholder dividends.
That the good judge will force owners of the private sector LTC gravy train to submit to class action testimony under oath looks like a slam-dunk.
After all, few had Judge Belobaba rejecting the “government can’t be sued for negligence over healthcare outcomes” calculation of the Ford government.
No such deference need be conferred on LTC operators like Harris, a directing mind of the firm during most of the Covid crisis.
The devious Ford had set out a legislative landmine in the form of his wide-ranging omnibus Bill 161, the Smarter and Stronger Justice Act, which added new certification tests for class action lawsuits.
Plaintiffs were obliged to show a judge that their common issues “predominate” over their individual issues, and that a class action is “superior” to other means of seeking justice.
But the Plaintiffs (survivors of the 5,000-plus LTC deceased) have merely passed GO; they have not collected $200.
Nevertheless, Ford has lost in the first stage because it turns out offering legal immunity to prima facie negligent private companies (and insurance conglomerates) is contrary to accountability in government. Who knew?
Belobaba cautioned that the Plaintiffs’ initial hurdle was not an onerous one: they had only to establish that their cause of action is not plainly and obviously doomed to fail.
But the evidence filed by the Plaintiffs and spelled out by Belobaba in the decision against Ford contains, by default, major allegations against the operators as laid out in personal sworn affidavits, reports of the Auditor General and the Final Report of the Ontario Long-Term Care Covid-19 Commission released, but underpublicized, in April 2021.
The reports detail Ontario’s delayed and deficient response to the Covid pandemic as the first wave began to hit LTC homes:
- The Defendant’s historic neglect of the LTC sector included severe staffing shortages, inadequate infection prevention and control practices, an inexplicable failure to maintain an emergency stockpile of PPE, poor oversight and enforcement of legislative standards and increasingly lax inspections;
- As the LTC Commission concluded, the wide array of systemic issues which had plagued the sector for years prior to the onset of the Covid pandemic led directly to “excess mortality” of LTC residents during the pandemic;
- The LTC Commission found that “alarm bells should have been ringing loudly in Ontario” when LTC homes and congregate settings in other jurisdictions began experiencing outbreaks in February 2020;
- Ontario continued to downplay the threat of the virus and failed to recognize the existence of community spread and asymptomatic transmission until well into March and April 2020 despite compelling evidence to the contrary.
Lawyers will still need to convince a trial judge to find the minister liable for the deaths – or persuade the government to settle out of court.
The class action filed against the owners or operators of LTC homes is to be heard over the next several months. It is being raised on eight groups of LTC operators:
- Sienna Senior Living (owned by Nitin Jain, a self-described “operational leader in the hotel and hospitality sector”);
- Revera Inc. (owned by the federal government through its pension board);
- Schlegel Villages (owned by RBJ Schlegel Holdings);
- Responsive (owned by Responsive Group);
- Extendicare Inc. (owned by Crownx Real Estate Investment Trust,);
- Chartwell Retirement Residences (owned by Chartwell REIT);
- Independently owned LTCs;
- Municipally owned LTCs.
The Ford Method is transparent: take something away, such as a group’s right to sue for negligence, give nothing back in exchange (such as improved LTC care), but then brazenly indemnify the insurance industry and certain private long-term care facilities for which the government itself is responsible.
Never mind Covid immunity; Ford & Crew tried inoculating themselves against civil litigation. Ford’s bald attempt to judgment-proof himself from civil law remedies is what the dictionary calls graft. When a politician unscrupulously uses authority for personal gain (or for example diverts public health money to private healthcare providers) it fits the definition.
Meanwhile, citizens might wonder whether Ford has set his sights on the privatization of water and/or power services. Certainly no one should sleep on the conniving leader: a third term for the nihilist is a possibility, at which point all bets are off the board.
Perhaps Ford is already spitballing the creation of a Cortellucci Power & Light based in Woodbridge, with branch offices in Guelph and Hamilton, or a DeGasperis Water Works Inc., with a head office in bustling, gridlocked Bradford West Gwillimbury, hub of the scandal-rocked Bradford Bypass.
Doug plans to torpedo public sector healthcare and education, by stealth, and then parachute in the oligarchs to cherry-pick the smoking remains.
It would only be a new trough (peaks are rare) for the Ontario Regressive Conservatives.
In 2023, new Covid variants threatening to make the virus endemic in Ontario have focused the anti-Ford activists’ attention.
But the class action faces some significant obstacles in a courtroom.
The judge ruled that the Plaintiffs could sue the minister based on a specific duty they argued was laid out in a preamble to the province’s Long-Term Care Homes Act. It says the province must take action when the “care, safety, security and rights of residents” might be compromised.
But government lawyers say in their Notice of Appeal that the preamble was never meant to set up a “duty of care” for the minister, who in fact has no authority to issue directives to individual nursing homes.
Clearly, Ford wants it both ways. He won’t oversee the LTCs and he simultaneously denies liability for whatever transgressions occur within these institutions.
The question is who does Ford think should ensure that long-term care facilities are properly run? Surely not the grifters running them.
Typical of Ford, the province has already appealed the certification decision, saying the judge made legal errors, and that the Superior Court decision would have a serious impact on the principle of government immunity.
Meanwhile, Ford’s legal mouthpieces continue to express a distorted view of the public interest in their appeal documents, asking:
“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?”
Justice Belobaba quoted the Plaintiffs’ expert witness, microbiologist Dr. Dick Zoutman, who said 90 per cent of the deaths could have been avoided if the province had acted sooner to implement measures already in place elsewhere, such as screening tests and masking.
“In Dr. Zoutman’s opinion, the 3,836 LTC deaths from Covid or Covid-related complications were ‘largely preventable’. As were ‘the vast majority of the over 23,000 cases of Covid-19 infections that have occurred in Ontario long-term care homes.’
“On April 8, 2020 the Chief Medical Officer of Health (at the time, David Williams) finally issued a directive for staff to wear masks in long-term care, a full 20 days after receiving the recommendation from an Associate Medical Officer of Health.
“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.”
The Ford government ran zero TV PSAs encouraging the use of masks. It provided little broadcast information on who qualifies for vaccines and when, on a timely basis. The Covid-19 plan has been a sham from Day One, Ford leveraging the process for personal/political gain at every opportunity.
Though many of the problems that led to Covid deaths across all demographics have been exposed by scientists and the media, a cynical observer might question the benefit of a legal judgment against Ford.
It is clearly time this destructive premier is stopped. Perhaps a court ruling will force Ford to modify his belligerence. Yielding to the demands of the majority and acting in the public interest should be Job One in the Ford Nation idiocracy.
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