Alberta legislation would shield continuing-care operators from COVID-19 lawsuits

The Alberta government has introduced legislation that would shield long-term care and supportive-living operators from COVID-19 related lawsuits, provided they acted “in good faith” in following public-health measures.

Bill 70, COVID-19 Related Measures Act, also applies to Alberta Health Services, regulated health professionals, residential addiction treatment facilities and pharmacies. 

Under the bill, those parties would be shielded from civil liability if they were found to have acted in “good faith” by following public-health rules during the pandemic. 

Plaintiffs who have already filed lawsuits would have to amend their statements of claim to allege “gross negligence.”

The government said the changes would allow the health-care system to function without fear of litigation. 

But lawyers representing plaintiffs in class action suits filed against continuing care operators in Alberta say they will launch a constitutional challenge against Bill 70 if it is passed by the Alberta legislature.

The lawyers say the Alberta government is bending to the wishes of the care facilities and their insurers and have set a legal threshold that is rare in Canadian law. 

“I find this especially concerning because the threat of a lawsuit is one of the few things left that still forces corporations to act responsibly,” said Mathew Farrell, partner at Guardian Law, which represents plaintiffs in a $25-million class-action lawsuit against Revera Living, operator of the McKenzie Towne Continuing Care Centre in Calgary.

“Why would you take that away? Seniors are already a vulnerable group, and they put their lives in the hands of these care homes and they should have the right to hold them accountable.”

Richard Gotfried, UCP MLA for Calgary-Fish Creek and sponsor of Bill 70, denied the government was trying to shield operators from accountability for not protecting residents from death or illness resulting from COVID-19 outbreaks.

“We absolutely will not protect any bad apples for gross negligence in the performance of their duty,” Gotfried said. 

“If they’re acting in good faith, if they’ve met the standards of care and the public health measures that had been in place, that gives them some level of protection perhaps, and proof that needs to be proven. But that’s up to the courts.” 

If passed, the measures in the bill would be retroactive to March 1, 2020. Alberta’s first case of COVID-19 was confirmed on March 5.

61 per cent of deaths 

In the time since, 1,248 of the 2,054 reported deaths in Alberta — or 61 per cent — have been residents of long-term care or supportive-living facilities.

Cabinet could pass future regulations to expand the types of industries included under the legislation. 

Farrell, the lawyer for the McKenzie Towne lawsuit, is also involved in the class action lawsuit against Cargill. He said that part of Bill 70 is an open invitation for other companies to lobby the government for similar provisions.

 “You shouldn’t be precluding people from getting what’s fair,” he said. “No matter how much lobbying the defendant does.”

The legislation is being introduced after lobbying from the Alberta Continuing Care Association, which represents for-profit and non-profit operators in the province.

The government said four statements have been filed against continuing care operators, two against non-profit operators and two against private, for-profit operators. 

Farrell said he knows of seven lawsuits, including a statement of claim against the operator 

In addition to the McKenzie Towne lawsuit, residents and families of the Good Samaritan Southgate Care Centre in Edmonton have filed a $20-million, class-action lawsuit against the operator. 

Alberta Health says 22 people died in the outbreak at McKenzie Towne. Another 34 died in the Southgate Centre outbreak. 

New Brunswick, Nova Scotia and Ontario have already passed measures to protect operators from lawsuits related to COVID-19. 

Government bills are usually tabled by cabinet members, which in the case of Bill 70 would be Health Minister Tyler Shandro. 

Gotfried didn’t explain why the government was taking the unusual step of having a backbench MLA shepherd the bill through the legislature. He said he had worked with the sector and residents over the past five years. 

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