Appeal court gives green light to negligence claim against Merrilee Fullerton
Ontario’s minister of long-term care, Merrilee Fullerton, will have to face a class-action lawsuit that accuses her of negligence in the government’s handling of the COVID-19 pandemic in long-term care homes. The Ontario Court of Appeal ruled on Tuesday that the lawsuit, filed by four plaintiffs who lost their parents to COVID-19 or related complications in 2020, can proceed against Fullerton.
The plaintiffs allege that Fullerton breached her duty of care to the residents of long-term care homes by failing to take timely and adequate measures to protect them from the virus. They claim that the minister knew by the end of January 2020 that the elderly and frail were particularly vulnerable to COVID-19, but did not act until it was too late. They also allege that the minister ignored the recommendations of experts and failed to ensure sufficient staffing, testing, personal protective equipment, and infection control in the homes.
The plaintiffs seek damages for the pain and suffering, loss of companionship, and loss of guidance and care that they and thousands of other families experienced as a result of the minister’s negligence. They also seek punitive damages to deter such conduct in the future.
Superior court judge certified the lawsuit but dismissed other grounds
The lawsuit was initially filed in June 2020 against Fullerton, the minister of health, the chief medical officer of health, and the province of Ontario. The plaintiffs sought to certify the lawsuit as a class action on several grounds, including negligence, breach of fiduciary duty, breach of charter rights, and public nuisance.
In December 2020, a Superior Court judge certified the lawsuit as a class action against Fullerton on the ground of negligence, but dismissed the other grounds. The judge found that the minister of long-term care had a specific statutory mandate under the Long-Term Care Homes Act to ensure the well-being and safety of the residents of long-term care homes, and that this created a prima facie duty of care to the plaintiffs.
However, the judge ruled that the minister of health and the chief medical officer of health did not owe a similar duty of care to the plaintiffs, as their mandates were to act in the general public interest and not to protect the interests of specific individuals. The judge also dismissed the other grounds of the lawsuit, finding that they were either untenable or duplicative of the negligence claim.
Appeal court upheld the lower court’s decision
Both the plaintiffs and the defendants appealed the Superior Court’s decision to the Court of Appeal. The plaintiffs argued that the lawsuit should have been certified on all the grounds they raised, while the defendants argued that the lawsuit should not have been certified at all.
On Tuesday, the Court of Appeal upheld the lower court’s decision, agreeing that the lawsuit can proceed against Fullerton on the ground of negligence, but not on the other grounds. The Appeal Court said that the plaintiffs had a reasonable chance of proving that Fullerton owed them a duty of care, and that she breached that duty by failing to act reasonably in the face of the COVID-19 threat.
The Appeal Court noted that the Ministry of Long-Term Care was only created in 2019, and that there has not been any authoritative judicial pronouncement on whether having a separate minister for long-term care alters the analysis of duty of care. The court said that this was a novel issue that deserved to be explored at a trial.
The Appeal Court also said that the plaintiffs’ attempt to distinguish the mandate of the Ministry of Long-Term Care from that of the Ministry of Health and the Chief Medical Officer of Health was not certain to fail, and that it was inappropriate to dismiss it at this stage.
The Appeal Court, however, affirmed the lower court’s dismissal of the other grounds of the lawsuit, finding that they were either legally untenable or unnecessary.
Lawsuit is one of several legal actions against the government over long-term care
The class-action lawsuit is one of several legal actions that have been launched against the Ontario government over its response to the COVID-19 pandemic in long-term care homes. More than 3,800 residents and 11 staff members of long-term care homes have died of COVID-19 or related complications since the start of the pandemic, according to the latest data from the province.
The government has faced criticism for its delayed and inadequate actions to prevent and contain the outbreaks in the homes, and for its lack of transparency and accountability. The government has also been accused of violating the charter rights and human dignity of the residents and their families, and of failing to comply with the recommendations of various reports and inquiries on long-term care.
The government has defended its actions, saying that it has invested billions of dollars to support and improve the long-term care sector, and that it has implemented various measures to enhance the quality and safety of care in the homes. The government has also said that it is committed to learning from the pandemic and to implementing long-term reforms to the system.
The minister of long-term care, Merrilee Fullerton, has not yet commented on the Appeal Court’s decision. The Ministry of the Attorney General did not immediately respond to a request for comment.