More “Rule of Law” When it Suits Them: Alberta’s Bill 70, COVID-19 Related Measures Act, 2021 (legislation to be retroactive to March 1, 2020) protects as usual, investors and business over health and family.

Dr. Ubaka Ogbogu@UbakaOgbogu:

@Lorian_H and I wrote about Bill 70, the Bill to Screw COVID-Impacted Albertans Over….

Dr. Pamela Banting@PamelaBanting:

How bitterly ironic that the UCP wants to pass this Bill to grant legal immunity to owners and managers of nursing care homes while they did extremely nothing to assure immunity and safety from the disease to the elders in such care homes.

Bill shielding LTC homes from COVID lawsuits sides with business over families by Ubaka Ogbogu and Lorian Hardcastle, Apr 23, 2021, Edmonton Journal

The Alberta government recently introduced a bill that will make it much more difficult to obtain compensation from health facilities and professionals who provided negligent care during the COVID-19 pandemic. This bill is backed by the Alberta Continuing Care Association who lobbied the government to limit their liability following many deaths and several legal challenges against their members.

Bill 70, the COVID-19 Related Measures Act, would set a higher, more stringent standard for negligence claims brought against health facilities as a result of individuals contracting or being exposed to COVID-19. Under the bill, there can be no legal claim for injuries related to COVID-19 — such as the loss of a parent or grandparent — unless the facility failed to make “a good faith effort” to comply with public health laws and guidance and its conduct amounted to “gross negligence.”

Ordinarily, a person would have to prove that the health facility acted unreasonably and that their injury resulted from the facility’s failure to provide reasonable care. With the new standard, a plaintiff will face the much greater burden of satisfying the court that the facility’s conduct essentially amounted to reckless disregard for the safety of those under their care.

The new standard is not just unusual in negligence cases, but also very onerous to meet from a practical standpoint. Plaintiffs will face challenges obtaining operational protocols showing that these facilities did not make a good faith effort to follow public health guidance. Compliance with public health standards does not necessarily indicate that facilities provided reasonable care, especially considering the government’s own shortcomings in handling the pandemic and adequately protecting long-term care residents from COVID-19.

Plaintiffs will also find it difficult to obtain legal representation What good is legal representation when lawyers quit whenever they like, while not quitting other cases taken on years after taking on yours, like my ex lawyers Murray Klippenstein and Cory Wanless?, as lawyers may be unwilling to take on cases with a low chance of success.

Several class actions have already been filed against continuing care facilities in Alberta. For example, one claim against Calgary’s McKenzie Towne Continuing Care Centre alleges that the facility failed to properly isolate residents or to provide personal protective equipment to staff. Twenty-two residents died after more than 100 staff and residents in this facility were infected with COVID-19. Given that the proposed legislation will be retroactive to March 1, 2020, these existing cases will have to meet the new higher standard.

The continuing care sector has been struck especially hard during the pandemic, particularly during the first wave, when over 80 per cent of Canada’s COVID-19 deaths occurred in long-term care facilities. Evidence shows that for-profit homes had more widespread infections and fatalities than non-profit facilities. Some of Alberta’s largest outbreaks occurred at for-profit facilities, including the one at McKenzie Towne, which is owned by Revera. Between March and September 2020, 874 Revera residents across Canada contracted COVID-19, 266 of which died. There have been 40 additional outbreaks in Revera facilities since September.

For-profit operators have been criticized for underinvesting in resident and staff safety, while profiting from COVID-19.

For example, according to one news report, two Ontario for-profit operators received $157 million in COVID-19 aid, yet paid their shareholders $74 million during the pandemic. There have been reports of shocking conditions within these facilities, including residents in critical condition abandoned by staff, workers being told they had to work while sick and residents asking to die. Following the passage of this legislation, it will be easier for facilities to avoid accountability for these conditions.

Shielding operators from liability when they have failed to take reasonable care of their residents is a cynical and regressive measure that runs counter to the messages of reforming long-term care in the wake of the pandemic. It makes it likely that those who suffered injuries or death will receive no redress and that operators can continue with existing practices without fear of accountability. It is yet another morally and ethically questionable attempt by the government to side with businesses over the welfare of citizens.

Ubaka Ogbogu is an associate professor in the faculty at the University of Alberta and a Pierre Elliott Trudeau Foundation Fellow. Lorian Hardcastle is an associate professor in the faculty of law and Cumming School of Medicine at the University of Calgary. Both authors teach medical malpractice law. The opinions expressed are those of the authors and do not represent those of the Pierre Elliott Trudeau Foundation.

Bill to hinder COVID-negligence suits against long-term-care firms will also protect Kenney Government from scrutiny by David Climenhaga, Apr 23, 2021

The Kenney Government would like you to think the bill it introduced yesterday to make it hard to sue long-term-care companies for negligence causing the death from COVID-19 of anyone in their care “strikes a balance between protecting those who have dutifully followed the rules with still permitting civil action to proceed against those whose actions may have been grossly negligent.”

A key government talking point to defend Bill 70, the COVID-19 Related Measures Act, is that it is similar to legislation recently introduced in other provinces, such as British Columbia and Ontario. This leaves the impression, the government surely hopes, that this is an altruistic law based on common sense and non-partisan principles identified across Canada, even by New Democrats.

It is likely, though, that the United Conservative Party Government’s principal goal, beyond even the desire to defend its friends in the for-profit long-term-care business, is the powerful urge to protect itself from scrutiny while not letting anything upset its privatization applecart.

The government’s news release yesterday quoted Calgary-Fish Creek MLA Richard Gotfried, the bill’s sponsor in the Legislature and not coincidentally chair of the government’s continuing care review “advisory panel,” piously explaining that “not having any provincial legislation in place to address COVID-19 civil liability protection, given the unparalleled dedication and accountability we have seen within the sector, could undermine the provision of care and services.”

This, of course, is transparent nonsense. 

Health Minister Tyler Sandro was quoted saying much the same thing, providing members of the Fourth Estate with two backup quotes for the price of one. “The proposed legislation would ensure those delivering health services in good faith, according to public health guidance, cannot be held liable for damages due to COVID-19 spread or exposure,” he said.

This too the public will recognize it as pish-posh. 

It’s presumably because they know their arguments will carry more than a whiff of self-interest that the government of Premier Jason Kenney has pulled out all the stops to sell this bill to a suspicious public. 

Indeed, the news release included supportive quotes from Alberta Health Services CEO Verna Yiu, Covenant Health CEO Patrick Dumelie, Alberta Continuing Care Association Chair and AgeCare Health Services Inc. Vice-President Salimah Walji-Shivji, Christian Health Association of Alberta board member Wendy King, Greater Edmonton Foundation CEO Raymond Swonek, Bethany Care Society CEO Jennifer McCue, and Citadel Care Corp. CEO Gregg Ulveland. There was even one from Paul Boucher, the hapless president of the Alberta Medical Association, whose member physicians have just rejected the lousy contract the organization negotiated with the government on their behalf.

The key words in the news release are that the law would “extend COVID-19 civil liability protection to those in the health-care sector who have rigorously followed public-health orders and guidance throughout the pandemic.” (Emphasis added.)

The government of Alberta – and presumably those of B.C., Saskatchewan, Ontario, New Brunswick, and Nova Scotia as well – is desperately anxious that the frightening lack of government oversight that already exists in long-term-care facilities not be exposed to public scrutiny. 

As we know from bitter experience throughout the past year, terrible things happen in long-term care even when the thoroughly inadequate rules and regulations common to most Canadian provinces are followed. 

What do you think private-sector long-term-care providers that suffered massive of loss of life as COVID-19 ripped through their properties will argue if they’re sued? They will go to court and claim – with justice in many cases – that they followed the rules, that everything they did was completely in compliance with the Government of Alberta’s regulations

Rules and regulations, that is, that were not up to the crisis caused by the rampaging coronavirus pandemic, that were badly enforced if they were enforced at all, and that were pathetically inadequate to protect patients and residents even from much less serious health challenges.

This at a time when the government of Alberta intends to gut the Nursing Homes Act in the name of “reducing red tape” and rid the province of what it claims are needless regulations. 

This is certainly the purpose of Mr. Gotfried’s panel – readers need only watch its recommendations when they are announced to see that this is true.

The facts exposed in such court cases would reveal the truth, that the rules and regulations were already hopelessly inadequate when COVID-19 tore into Alberta, and that they need to be strengthened and extended, not the opposite as the UCP’s ideology requires and its back-room promises to supporters in the industry demand.

Bill 70 is intended to be retroactive until March 2020, conveniently the time when large numbers of long-term-care residents began to die of COVID-19 in Alberta care facilities.

One of the comments:

David Harrington:

Bang on. For example, in Ontario, residents in long term care are required by law to be provided at least 2.75 hours of direct care per day. Last year, the Ford Government announced it would be increasing that so that long term care residents will receive at least 4 hours of direct care daily. In Alberta, Nursing Homes are required to provide only 1.9 hours of care daily. In Assisted Living facilities, there is no minimum. It is widely expected that under the guise of “red tape reduction” the already weak and rarely enforced minimums will be further diminished or eliminated all together. Pesky things like lawsuits have a tendency to make such information public.

An excellent piece here:

‘Breaking point’: Inside AgeCare’s for-profit care homes, As UCP protects companies, workers speak out by Jeremy AppelAlberta Politics • April 24 2021, Sprawl Calgary

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