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OPSEU/SEFPO submission to the Standing Committee on Justice Policy – Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020

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OPSEU/SEFPO represents approximately 170,000 front-line public sector workers. We are deeply concerned about some of the provisions in Bill 218.  We understand that many organizations have done their best to align with changing public health guidance as the science around COVID-19 develops and requires new measures, and that there has been mixed messaging from different jurisdictions that caused confusion. However, we are particularly concerned about provisions in the Bill that relate to the definition of “good faith effort,” and the requirement to prove “gross negligence” for legal proceedings to take place. This Bill represents nothing short of throwing patients and families under the bus in favour of protecting governments and private operators from facing the music when they are in the wrong.

Bill 218 – An Act to enact the Supporting Ontario’s Recovery Act, 2020

Bill 218 protects persons (which includes individuals, corporations, or other entities) from liability due to an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as long as they acted or made a good faith effort to act in accordance with public health guidance and any federal provincial, or municipal law relating to coronavirus (COVID-19).

Long-term care

OPSEU/SEFPO is particularly concerned that this legislation will protect for-profit long-term care homes, where there have been many longstanding issues prior to COVID-19.

OPSEU/SEFPO has spoken to these issues many times in the past, but they fundamentally boil down to profits being skimmed from money that should be going to frontline services. The systemic problems with for-profit care meant that these homes were unprepared to deal with COVID-19, resulting in many unnecessary deaths. This legislation, which is being lauded by long-term care homes facing legal action from patients and their families,[1] will severely limit any legal recourse those patients and families have.

Accountability

The definition used in Bill 218 of “good faith effort” is “an honest effort, whether or not that effort is reasonable.

Typically, a “good faith effort” is accepted to mean a competent and reasonable effort. When it comes to for-profit long-term care in particular, the expectation is that these homes should be making a reasonable and competent effort to maintain the safety of patients. Where care standards and legislative requirements were not being met by for-profit long-term care facilities, they must be held accountable.

The proposed definition sets the bar so low for these efforts that families and patients will be less able to hold for-profit long-term care facilities to account. The proposed legislation also only allows legal proceedings against persons in cases of gross negligence, which will be difficult for patients and families to prove. The long and short of the Bill is that it offers protections to employers from negligence claims related to COVID-19. It doesn’t prohibit Workplace Safety & Insurance Board claims or other grievances.

We also have to question why the amendment to the Municipal Elections (ranked ballot) has been merged with this Bill.

Recommendations

  • The definition of “good faith effort” properly encapsulate reasonableness and competence.
  • Remove the requirement for patients and families to prove gross negligence in order to be successful in legal proceedings.

Conclusion

The government has indicated its interest in holding long-term care home operators to account for the high number of deaths and reports of poor conditions during COVID-19. This proposed legislation will help shield those responsible from accountability. Ontarians deserve better than a system that rewards negligence