Alta. legislation would protect continuing care homes from COVID-19 lawsuits, lawyer calls bill ‘sickening’

EDMONTON — A new bill could mean Albertans would have to prove gross negligence in order to sue a care home or hospital where their loved one contracted and died from COVID-19.

Called the COVID-19 Related Measures Act, Bill 70 would offer protection to owners down to subcontractors of regulated health authorities, facilities and professionals – from Alberta Health Services, to hospitals, to pharmacies.

Tabled Thursday by private member and Calgary MLA Richard Gotfried, the legislation proposes requiring any lawsuit blaming an operator to prove the defendant was grossly negligent. Lawyers are calling the proposed legislation a direct challenge to the rights of seniors that could face a constitutional challenge should the bill pass.

“Then those people will be held accountable,” Gotfried said that afternoon.

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

The Dictionary of Canadian Law defines ‘gross negligence’ as conduct with a high or serious degree of negligence and includes a departure from applicable standards of care. 

According to the latest data, more than 2,000 Albertans have died from the disease.

There are four active lawsuits related to COVID-19 mismanagement in Alberta. All are against long term care facilities.

Several such lawsuits exist. In 2020, claims were made against Revera’s McKenzie Towne Continuing Care Centre in Calgary, and Shepherd’s Care Foundation and the Good Samaritan Society in Edmonton. Dozens of residents died, and dozens more were sick, between the locations.

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Gotfried said the Alberta government wasn’t enabling health-care providers to avoid responsibility, but ensuring the sector wasn’t decimated by the financial costs of defending against unfounded suits.

“The concern we have is the viability of the sector,” Gotfried commented. “That we can continue to have them focus on the health and wellbeing.”

If passed, the legislation would be retroactive to March 2020, when Alberta began to bring in public health measures for the pandemic. While “gross negligence” is not defined in Bill 70, Gotfried said it is a “well-established standard within the judicial system.”

The legislation would not see current lawsuits dismissed, as was done in Ontario when the province brought in a similar law in 2020; instead, government officials say complainants would have to amend their submission to include the claim of gross negligence.

Gotfried said the legislation could be expanded to other sectors in the future if necessary, and would not impact an employee’s ability to earn benefits from the Workers Compensation Board of Alberta.

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Ontario, British Columbia, New Brunswick and Nova Scotia have all brought in COVID-19 liability protection. Saskatchewan is in the process of doing so.

According to Gotfried, the government consulted industry partners and constituent feedback, including that which he has heard while leading a provincial review of the continuing-care system. 

LAW FIRMS PLANNING CONSTITUTIONAL CHALLENGE

Rick Mallett, class-action lawyer at James H. Brown and Associates, told CTV News Edmonton in an interview that the legislation is “sickening.”

“When I look at it, I think it is actually shocking in what it’s trying to do to take away the rights of our seniors and people in care – the most vulnerable people we have in society.

Mallett added the proposed bill strips the ability for someone to sue for instances of substandard care where a family member died or received COVID-19, except in the most egregious cases.

“Effectively, it’s going to make it extremely difficult for the most vulnerable people in our society to try and hold the government or corporations accountable.”

The standard of proof required to prove gross negligence in a court of law is difficult to meet in Canada, especially since the government has provisions in the legislation saying care is protected even if someone attempted to act in good faith, Mallet said.

“The government knows that and the corporations that run the care homes they know that the standard of proof for seniors is going to be very, very difficult to meet,” he added.

“Our seniors deserve better.”

In a statement to media, Guardian Law LLP in Calgary said the proposed bill puts insurance companies and corporations ahead of justice and public safety.

“Bill 70 protects the profits of wrongdoers and their insurers at the expense of seniors,” Guardian Law LLP partner Mathew Farrell said. “Why would the government grant care facilities a license to be irresponsible?”

“The threat of legal action makes corporations do the right thing – one of the few things that does,” Farrell added. “Why would the government take away this lever of corporate accountability?”

Farrell said that should Bill 70 pass, Guardian Law Group LLP and James H. Brown & Associates plan to launch a constitutional challenge.

With files from CTV News Edmonton’s Jeremy Thompson

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