Q1: do an analysis of the article with reference to the 4 elements in a negligence case and any defences that can apply and the remedies that are sought in this case. Then give your own comments and opinions on this case as the final part of your analysis. The analysis is the most important part of the assignment.
Article -
File Tools View Document1 - Word X Both Webb and Attaran point to the high bars to lawsuits set out in the act. One is that Justice for families rests with the premier you have to prove that the target of a lawsuit did not act, or make a good-faith effort to Doug Ford made a guarantee, is what he did. act, in accordance with public health guidance. And beyond that, you can't just prove "I will not stop until these families get justice," Ontario's premier said Thursday about negligence; you have to prove gross negligence. long-term-care homes. "Simple as that. That's what's going to happen, they will get jus- "Just getting over the negligence bar is like winning a medal at the Olympics," says Webb. tice." He tells a story of an Italian-speaking client in an English-speaking home, pre-pandemic; It sounded good. Nearly 2,000 people have died as COVID-19 roared through Ontario's he complained, in Italian, of pain in his leg. His daughter-in-law informed the home. long-term-care homes. British Columbia, with a little less than a third of the population, For three days, nothing was done; when she called an ambulance, they found his broken has less than 10 per cent of the deaths. Someone has to be responsible. femur poking through his skin. He was taken to hospital and never came back. "I'm protecting the people," said Ford. "I'm protecting the people that lost loved ones." And even then, there was no lawsuit, because the family would have been liable for costs Except he was being asked about including long-term-care homes in Ontario's liability and negligence was a high bar. They couldn't take that chance. shield law, which is part of the province's Bill 218, Supporting Ontario's Recovery and "If they had vast financial means, they would probably be in another facility," says Webb. Municipal Elections Act. British Columbia didn't include LTCs in its version of the legisla- "We're not talking about the Bronfmans here. The homes have insurance and are really tion; Ontario did. Ford said he asked if people could still sue long-term-care homes, and well funded and will defend, so it's already like Main Street versus Bay Street here." was told yes; maybe he didn't ask the follow-up, or maybe he didn't want anyone else The act also retroactively wipes out existing COVID-19 long-term-care lawsuits, and cre- to. ates something close to an unclimbable mountain: a high and uncertain standard of neg- "When the premier says this is not about protecting negligent long-term-care home op- ligence, and proof that an action was done with something more than malfeasance. erators, that's all it's about," says Graham Webb, a lawyer who has tried many cases "Everyone can say, well, we were working in good faith, but things happen," says Dr. against long-term-care homes, and the executive director of the Advocacy Centre for the Samir Sinha, the director of geriatrics at Mount Sinai and the University Health Network. Elderly. "Because long-term-care home operators who weren't negligent would have no "This is like where you have to prove Elizabeth Wettlaufer," the nurse who murdered civil liability whatsoever." eight long-term-care residents between 2006 and 2007 in Woodstock. "You don't need to be a lawyer to figure out that the intent of this thing is to bar law- Look, the connections between the Ontario Conservatives and the long-term-care indus- suits," says Dr. Amir Attaran, a professor of law and epidemiology at the University of try - 58 per cent of homes here are for-profit, and former PC premier Mike Harris is the Ottawa. "That's kind of all it's for." Screens 1-2 of 4 + 10%File Tools View Document1 - Word X chair of Chartwell's board of directors - are well-established. You can presume requests to this legislation. We can say the homes were acting in good faith, or doing what they were, somehow, made clear. could under the circumstances, but it was almost the blind leading the blind. But in a way, this is also Ontario protecting itself from its own grim history. In British "There were a number of problems here in the first place. If we were actually better Columbia, Dr. Bonnie Henry moved faster than any province did to protect LTCs; she prepared, if we had better supported our long-term-care homes in the first place, if we barred workers from moving between LTCs almost a month before Ontario did, and in- actually gave them access to PPE, and if our public health guidance had actually been in stituted masking two weeks earlier. Meanwhile, Dr. David Williams, Ontario's chief med- line with provinces like B.C. that were actually following the evidence, and were imple- ical officer of health, was far behind. menting best practices early, then we wouldn't have had the levels of outbreaks and As Dr. Henry told the Star, "(The) government that was prepared to take the decisions deaths that we had." that we needed to take, and that included the LTCHs. So the whole idea of not letting What's left is a province where 40 per cent of homes had outbreaks, and which has more people work in more than one, that is an expensive and complicated proposition. And homes than Quebec in the second wave despite less community spread, and long-term- they stepped up." care homes can't get insurance now. The province could have backstopped that a differ- And in April, May and June, health spending in Ontario went up 10.6 per cent over the ent way. It did this instead, and it stinks. previous year, according to the Canadian Centre for Policy Alternatives; Quebec's went So Doug Ford swears there will be justice, but it won't come in the courts. Which means up 21.4 per cent, and B.C.'s 26.9 per cent. Quebec started recruiting long-term-care staff justice for the people who died preventable deaths in long-term care, almost 2,000 of in May; Ontario, in September. them, is now exclusively up to him. It all made a difference. B.C. had a better-funded, more robust, more publicly oriented system, and was the gold standard public health-wise, and so if things went really wrong, negligence was almost implied. Ontario, with a long-term-care system that had been al- End of document lowed to rot by governments of every stripe for decades, combined with tepid leadership and weak public health decisions, was different. "Ontario took a week or maybe a month to implement things," says Sinha. "So if you ask long-term-care homes who's to blame here, they're going to tell you it was the govern- ment, because the government just wasn't there to help them. So people could easily point to the government and say that it was the government's inaction that actually led Screens 3-4 of 4 + 10%MGS 350 NOTES CH. 3-5 3rd Ed (1).docx - Word Sign in X File Home Insert Design Layout References Mailings Review View Help Tell me what you want to do Share To Cut Times New Ro * 12 - A A Aa . AaBbCc AaBbCcDc AaBbCcD
