Court allows negligence class-action suit against Ontario LTC minister to proceed

Ontario’s Court of Appeal is allowing a class-action lawsuit to proceed against the minister of long-term care for alleged negligence regarding the government’s response to COVID-19.

The four lead plaintiffs lost their parents to COVID-19 or related complications in 2020 and allege that while the province knew by the end of January of that year that residents of long-term care homes were particularly vulnerable to the virus, the government didn’t enact protections until it was too late.

They allege, in claims that have not been proven in court, that thousands of deaths and illnesses could have been prevented if the government had acted sooner.

A Superior Court judge certified the class action against the minister of long-term care but didn’t allow it to proceed on several other grounds.

The government appealed that certification and the plaintiffs also appealed the decision not to certify a class action on the other grounds, including against the minister of health and chief medical officer of health.

In a decision released Tuesday, the Appeal Court upheld the Superior Court’s decision.

The mandate of the Ministry of Long-Term Care is arguably distinguishable from that of the Ministry of Health and the Chief Medical Officer of Health, the Appeal Court wrote in its decision.

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Previous cases have affirmed that their mandates are to act in the general public interest and are not geared to “the protection of the interests of specific individuals,” whereas the Long-Term Care Homes Act is aimed at protecting long-term care residents, the court wrote.

“To be sure, the appellants’ attempt to distinguish the mandate of the MLTC in this manner, and thereby establish a duty of care in favour of the residents of LTC homes, may well not prevail at an adjudication on the merits,” the court wrote.

“But in my view, it would be inappropriate at this stage to definitively conclude that the appellants’ argument is certain to fail.”

The Ministry of Long-Term Care was only created in 2019 — it had previously been part of the Ministry of Health — and there has not yet been “any authoritative judicial pronouncement on whether this recent bifurcation of ministerial responsibilities” and having a separate minister alters an analysis around duty of care, the court wrote.

A spokesperson for Long-Term Care Minister Stan Cho, who has held the cabinet post since September, said he could not comment on the case in particular, but said the office spent $85 million on infection prevention and control and followed the advice of the chief medical officer of health.

“We will continue to take concrete action to protect the residents of long-term care in Ontario and continue to make the needed investments Ontarians deserve and expect,” Daniel Strauss wrote in a statement.