CHSLDs in Court: Thoughts on Government’s and Managers’ Liability.

The COVID-19 pandemic is revealing the extreme vulnerability of elderly people. The situation being relayed by the media, the Canadian military, and many other witnesses is grim. Our current understanding will be supplemented by the Quebec Ombudsperson’s upcoming investigation, which will no doubt help to better identify the various factors behind this tragic state of affairs.

Liability lawsuits (including class actions) are one response to the pandemic, and its effects on the elderly, that is currently emerging. At this time, there are two class actions against private care homes in Quebec and seven in Ontario. The affected families’ feelings of helplessness and anger may indeed lead them to blame individual actors within the “CHSLD system”, when it is perhaps the system itself which is failing. To understand everyone’s responsibility for the current tragedy, it is essential to ask ourselves: What system are we referring to? What failures are we talking about? Who is involved?

What system are we referring to?

Three types of long-term care facilities (CHSLDs) exist in Quebec: public, private, and private under agreement. Public CHSLDs are part of the Quebec health and social services network and are operated by Integrated Health and Social Services Centres (CISSS) as well as Integrated University Health and Social Services Centres (CIUSSS), which are both public organizations. Private administrators manage private CHSLDs, as well as private CHSLDs under agreement, which are funded by the government. It is essential to distinguish these categories of CHSLDs because they entail important differences in the extent of the harm experienced by our seniors, the mode of the CHSLD’s administration, and the legal framework for the liability of the CHSLD’s managers.

What failures are we talking about?

The law of civil liability (tort law—or responsabilité civile in Quebec) deals with the allocation of responsibility and the compensation of victims for an injury that has been suffered on a case-by-case basis. It is therefore difficult to generalize about the possible outcomes of legal proceedings instituted in response to the tragedy experienced by our seniors. For example, the chronic underfunding of long-term care homes or the low salaries for employees that have been the subject of discussion for years would not be treated in the same way as the contamination of personal protective equipment during the pandemic. Failures within CHSLDs to respect infection prevention and control guidelines would not be considered similarly to the government’s decision to transfer seniors to CHSLDs in order to open beds in hospitals at the start of the crisis. Some issues are individual, others are organizational; some involve political decisions, others manifest themselves on the ground.

Who is involved?

Finally, the criticisms of CHSLDs target three very different categories of actors: the Minister of Health and Social Services (the government), the entities that operate CHSLDs, and employees of CHSLDs. Can victims demand that the courts hold each of these actors accountable? Let us leave aside the situation of employees and discuss claims against the government and CHSLD managers.

Immunity shields many government decisions from liability lawsuits. The Quebec Public Health Act grants immunity to the government, the Minister of Health or “another person” for acts performed in good faith in the exercise of powers held under a declaration of public health emergency aimed at protecting the health of the population (s. 123 PHA). Bill 61 provides for a similar immunity (s. 51). As for government decisions that precede or fall outside this declaration or the ambit of Bill 61, partial immunity protects those decisions that deal with the allocation of resources and the determination of health priorities, unless they are made in bad faith or are irrational (see e.g., Cilinger v. Quebec (A-G) and Khoury 2016).

What about CHSLD managers? Will the CIUSSS/CISSS operating a public CHSLD be immune from liability proceedings as “another person” exercising powers under a declaration of public health emergency? The answer to this question is far from clear. If not, the CIUSSS/CISSS will be subject to the ordinary rules for liability, just like the managers of private CHSLDs and private CHSLDs under agreement. Their liability will depend on having committed negligence that caused the injury a victim has suffered (art. 1457 CCQ), for example, having failed to put in place reasonable infection prevention and control measures.

When evaluating negligence, judges will have to disentangle the roles and obligations of all the actors involved. They will have to establish how they are going to take account of the exceptional circumstances these actors faced, the lack of resources to which they had access, the urgency with which they were required to make decisions, and the changing and incomplete scientific knowledge that underpinned their pandemic management. Judges will also have to rely on public health experts to define what the reasonable standards are for curtailing a pandemic, given the novelty of the situation, taking into account the uncertainty that existed at the relevant time (see e.g., ter Neuzen v. Korn).

Finally, in addition to the existence of negligence, liability is conditional on the existence of a causal link between this negligence and the injury (the death of residents, for example). Tracing the transmission path of an extremely contagious virus whose carriers are often asymptomatic is not an easy task; assessing the causal link between organizational failures and the deaths of our seniors will be equally difficult (Khoury 2012).

Research funded by the McGill Emergency COVID-19 MI4 Fund / MUHC Found



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