Seniors in Ontario are suffering injustice every day. Bill 161 wants to make it harder for them to fight back.
COVID-19 has sparked numerous class action lawsuits against long-term care homes, with seniors fighting for justice on behalf of their loved ones abused and neglected in a broken system incapable of keeping them safe. Now, instead of helping them, the government of Ontario wants to pass a bill (Bill 161) that would make it harder for them to certify a class action, effectively threatening their fair right to the justice they deserve.
CARP recently presented to the Ontario Justice Committee on this issue.
Updates
July 13
In spite of nearly 8,100 signatures on our petition by people opposed, and a combined outcry from multiple organizations and advocacy groups, Bill 161 has passed in Ontario.
It’s now harder for seniors to pursue class action against long-term care homes who have caused them and their families irreversible harm or loss.
This is yet another example of why we all have to keep fighting, as one powerful and united voice, against legislation that seeks to silence seniors.
Until policy reflects the needs of all older adults (especially those victimized by the institutions on which they rely to provide care for them and their loved ones), there is still much work to be done.
July 2
Nearly 8,000 signatures collected!
The petition is still open, so please show your support by signing in support of our seniors!
Listen to CARP explain our objections to Bill 161 on a recent podcast
June 26
Nearly 7,300 signatures and counting!
The petition is still open, so please show your support by signing in support of our seniors!
June 19
Our petition has received over 6,500 signatures over the past week!
Yesterday, we sent a letter to Attorney General Doug Downey, backed by this impressive result.
The letter demands that the government abandon the pending amendments to Section 5.1 of Ontario’s Class Proceedings Act, which threaten the health, well-being, and legal rights of Ontarians.
Read the letter here or download a pdf copy
The petition is still open, so please show your support by signing in support of our seniors!
Think Ontario seniors deserve fair access to justice against the big corporations that victimize them?
Sign our petition to show your support
CARP wrote the following published article on this pressing issue:
“Aggressiveness when changing incontinence pads, not slowing or stopping when resident complained of pain … Forceful feeding by staff causing audible choking/aspiration. Patients observed crying for help with staff not responding (for 20 minutes to two hours) … Cockroaches and flies present. Rotten food smell. Patients being left in soiled diapers rather than being ambulated to toilets.”
These are just some of the abhorrent observations made by the Canadian military over the past month in Ontario long-term care facilities.
Their unbiased findings have laid bare a system that is failing some of the most vulnerable members of society: Our elderly.
The findings have exposed the shameful treatment that thousands of seniors have suffered — and continue to suffer — in long-term care homes across the province.
In the wake of this report, and of thousands of deaths in long-term care facilities due to COVID-19, seniors and their loved ones are launching class-action lawsuits in pursuit of justice.
Among these is a $40-million lawsuit against Southbridge Care and its Orchard Villa home, where of 308 residents, 225 contracted COVID-19, and 77 died.
Families are seeking compensation for the loss and suffering inflicted on them.
They want change.
They want justice.
But these grieving families may never get their day in court.
Bill 161, the Smarter and Stronger Justice Act, 2020, is an omnibus justice reform bill that, among many other things, proposes major reforms to Ontario’s Class Proceedings Act.
These changes fundamentally alter the test for the certification of class proceedings in favour of defendants — such as long-term care providers like Southbridge Care.
They would make it much harder for plaintiffs to certify a class action.
As a result, plaintiffs would have to sue individually — an extremely costly and difficult proposition, which most would not be able to undertake.
What are the changes that would hurt plaintiffs pursuing class-action suits?
The first is a new “predominance” requirement; a concept imported from American law.
This requirement would demand that the issues a group of plaintiffs have in common “predominate” over the individual issues that would remain after the conclusion of the class proceedings.
In the case of suits against long-term care homes, this could mean that plaintiffs who died of COVID-19, but due to different causes (e.g. lack of staffing, lack of containment, lack of PPE) might not be able to be certified as a class, because the fact that they died of the same illness is not enough of a “predominating” factor.
It could mean that residents suffering different forms of abuse — being force-fed to the point of choking, developing bedsores as a result of neglect, not receiving baths or personal care — might be denied the ability to form a class, despite the fact that their injuries stem from the same cause: rampant neglect of our elderly.
The second change of concern proposed in Bill 161 is the “superiority” requirement, which requires that a class proceeding be superior to all reasonably available means of determining class members’ entitlement to relief.
Again, this is designed to make it harder for plaintiffs to sue. It puts the burden on plaintiffs to establish that the most effective means of seeking compensation is through a class-action lawsuit; an additional hurdle which could result in their action not being certified.
These amendments will unfairly compromise seniors’ access to justice by making it much more difficult for certain types of actions to be litigated in class action, including class actions against long-term care homes.
Many previous class actions, such as medical and pharmaceutical class actions, including actions involving issues with hip implants, heart devices such as defibrillators and heart lead products, as well as the Walkerton tainted water case, and the General Motors retiree benefits class action, might never have been litigated at all had these proposed rules been in place at the time.
Who benefits from these changes to class-action certification?
Not ordinary Ontarians.
Not victims of wrongdoing.
The only beneficiaries are powerful corporations, including banks and insurance companies, who could use these changes to argue against certification of class actions, to avoid paying out for claims against the businesses they insure — including now, long-term care homes.
For a government, and a premier, that pride themselves on standing up for the people, this bill is a radical departure. CARP is therefore calling on the Ontario government to protect the interests of Ontario seniors and their families by withdrawing these proposed changes under Bill 161 to limit access to class actions.
It’s not too late. The Justice Committee is meeting this week to decide the fate of Bill 161. We ask our MPPs to do the right thing — and put the interests of the people first. Let’s work together to protect seniors’ access to justice in Ontario.
— Marissa Lennox, Chief Policy Officer
