Alberta Politics
Calgary-Fish Creek UCP MLA Richard Gotfried (Photo: David J. Climenhaga).

Bill to hinder COVID-negligence suits against long-term-care firms will also protect Kenney Government from scrutiny

Posted on April 23, 2021, 12:06 am
8 mins

The Kenney Government would like you to think the bill it introduced yesterday to make it hard to sue long-term-care companies for negligence causing the death from COVID-19 of anyone in their care “strikes a balance between protecting those who have dutifully followed the rules with still permitting civil action to proceed against those whose actions may have been grossly negligent.”

A key government talking point to defend Bill 70, the COVID-19 Related Measures Act, is that it is similar to legislation recently introduced in other provinces, such as British Columbia and Ontario. This leaves the impression, the government surely hopes, that this is an altruistic law based on common sense and non-partisan principles identified across Canada, even by New Democrats.

Alberta Health Minister Tyler Shandro (Photo: Alberta Newsroom/Flickr).

It is likely, though, that the United Conservative Party Government’s principal goal, beyond even the desire to defend its friends in the for-profit long-term-care business, is the powerful urge to protect itself from scrutiny while not letting anything upset its privatization applecart.

The government’s news release yesterday quoted Calgary-Fish Creek MLA Richard Gotfried, the bill’s sponsor in the Legislature and not coincidentally chair of the government’s continuing care review “advisory panel,” piously explaining that “not having any provincial legislation in place to address COVID-19 civil liability protection, given the unparalleled dedication and accountability we have seen within the sector, could undermine the provision of care and services.”

This, of course, is transparent nonsense. 

Health Minister Tyler Sandro was quoted saying much the same thing, providing members of the Fourth Estate with two backup quotes for the price of one. “The proposed legislation would ensure those delivering health services in good faith, according to public health guidance, cannot be held liable for damages due to COVID-19 spread or exposure,” he said.

This too the public will recognize it as pish-posh. 

It’s presumably because they know their arguments will carry more than a whiff of self-interest that the government of Premier Jason Kenney has pulled out all the stops to sell this bill to a suspicious public. 

Indeed, the news release included supportive quotes from Alberta Health Services CEO Verna Yiu, Covenant Health CEO Patrick Dumelie, Alberta Continuing Care Association Chair and AgeCare Health Services Inc. Vice-President Salimah Walji-Shivji, Christian Health Association of Alberta board member Wendy King, Greater Edmonton Foundation CEO Raymond Swonek, Bethany Care Society CEO Jennifer McCue, and Citadel Care Corp. CEO Gregg Ulveland. There was even one from Paul Boucher, the hapless president of the Alberta Medical Association, whose member physicians have just rejected the lousy contract the organization negotiated with the government on their behalf.

Alberta Health Services President and CEO Verna Yiu (Photo: David Cournoyer).

The key words in the news release are that the law would “extend COVID-19 civil liability protection to those in the health-care sector who have rigorously followed public-health orders and guidance throughout the pandemic.” (Emphasis added.)

The government of Alberta – and presumably those of B.C., Saskatchewan, Ontario, New Brunswick, and Nova Scotia as well – is desperately anxious that the frightening lack of government oversight that already exists in long-term-care facilities not be exposed to public scrutiny. 

As we know from bitter experience throughout the past year, terrible things happen in long-term care even when the thoroughly inadequate rules and regulations common to most Canadian provinces are followed. 

What do you think private-sector long-term-care providers that suffered massive of loss of life as COVID-19 ripped through their properties will argue if they’re sued? They will go to court and claim – with justice in many cases – that they followed the rules, that everything they did was completely in compliance with the Government of Alberta’s regulations. 

Rules and regulations, that is, that were not up to the crisis caused by the rampaging coronavirus pandemic, that were badly enforced if they were enforced at all, and that were pathetically inadequate to protect patients and residents even from much less serious health challenges. 

Calgary lawyer Jonathan Denis, the former Progressive Conservative justice minister and attorney general of Alberta (Photo: David J. Climenhaga).

This at a time when the government of Alberta intends to gut the Nursing Homes Act in the name of “reducing red tape” and rid the province of what it claims are needless regulations. 

This is certainly the purpose of Mr. Gotfried’s panel – readers need only watch its recommendations when they are announced to see that this is true.

The facts exposed in such court cases would reveal the truth, that the rules and regulations were already hopelessly inadequate when COVID-19 tore into Alberta, and that they need to be strengthened and extended, not the opposite as the UCP’s ideology requires and its back-room promises to supporters in the industry demand.

Bill 70 is intended to be retroactive until March 2020, conveniently the time when large numbers of long-term-care residents began to die of COVID-19 in Alberta care facilities. 

CTV quoted a partner in the Calgary-based Guardian Law firm arguing that “Bill 70 protects the profits of wrongdoers and their insurers at the expense of seniors.” Mathew Farrell said the law would “grant care facilities a license to be irresponsible.”

Arguably, they already have that licence. This will just extend it. 

Interestingly, Guardian Law founding partner Jonathan Denis is a former Progressive Conservative Justice Minister and Attorney General. In May 2020, acting as the firm’s spokesperson for its $25-million class-action negligence lawsuit against the McKenzie Towne Continuing Care Centre in Calgary, Mr. Denis told the CBC, “we found there was a lack of preparation, there wasn’t a plan to deal with the pandemic.”

The suit alleges private-sector operator Revera Inc. failed to follow protocols required to prevent an outbreak of COVID-19.

CORRECTION: Mr. Farrell and Clint Docken act as lead lawyers on the Guardian law class-action negligence suit against Revera Inc.’s McKenzie Towne operation.

 

14 Comments to: Bill to hinder COVID-negligence suits against long-term-care firms will also protect Kenney Government from scrutiny

  1. David Harrigan

    April 23rd, 2021

    Bang on. For example, in Ontario, residents in long term care are required by law to be provided at least 2.75 hours of direct care per day. Last year, the Ford Government announced it would be increasing that so that long term care residents will receive at least 4 hours of direct care daily. In Alberta, Nursing Homes are required to provide only 1.9 hours of care daily. In Assisted Living facilities, there is no minimum. It is widely expected that under the guise of “red tape reduction” the already weak and rarely enforced minimums will be further diminished or eliminated all together. Pesky things like lawsuits have a tendency to make such information public.

    Reply
  2. Anonymous

    April 23rd, 2021

    The UCP are following along the path of their Alberta PC predecessors here. Remember the St. Joseph’s hospital scare in Vegreville? The hospital needed a piece of sterilization equipment, and Ralph Klein said the government had no money for that. Balderdash! People have also said they would be suing the government for negligence, on behalf of their relatives who were put at risk, at this hospital. The Alberta PCs made it so that it would be difficult to sue the provincial government for any matters related to the government’s own wrongdoing. The UCP are doing the same thing here. Like Ralph Klein wanted, the UCP also wants as much private for profit enterprises as possible, regardless of how risky it is. It’s ironic that Jonathan Denis is involved in a lawsuit regarding a private for profit long term health care center, when he was in the Alberta PC government, who supported putting up these facilities. Private for profit long term health care facilities in Canada are known hotspots for Covid-19 cases. Ralph Klein’s bosom buddy, Mike Harris, the former Ontario PC premier, also supported privatization and deregulation of the necessary services. This also caused havoc in Ontario, and endangered people’s lives. If I recall, Mike Harris also made it so that people couldn’t sue the provincial government of Ontario for negligence. The UCP are doing something identical, and it’s not a wise decision.

    Reply
      • John B.

        April 24th, 2021

        Chainsaw Mile was still on the board at Chartwell when the pandemic started last year and at one time he did, and maybe still does, own a Nurse-Next-Door franchise. Like a good libertarian, he knows what a difference it makes to the bottom line when you have the means to avoid an excessive regulatory burden. Last year Doug Ford claimed that he hadn’t been aware of the Harris connection to Chartwell.

        Reply
        • Anonymous

          April 25th, 2021

          JOHN B.: Mike Harris was a total disaster. He was emulating his good buddy, Ralph Klein, and also followed the Fraser Institute (where he is a senior fellow). Their belief is more cuts, deregulation and privatization are the answer. The Walkerton tainted water tragedy has ties to the Mike Harris regime. When MPPs from Mike Harris’ PC government went into the CPC, they brought their failed ideas with them. John Baird, Tony Clement and Jim Flaherty were very bad in the CPC. The listeriosis tragedy, and the Lac Megantic tragedy are from deregulation of safety protocols. In Alberta, Ralph Klein privatized driver training. The Humboldt Broncos bus crash tragedy is tied to that. These private for profit long term care centres that Mike Harris and Ralph Klein loved, as did the British Columbia Liberals (Conservatives), are horror stories for Covid-19. The UCP also wants more privatization, without thinking of the consequences. The neoliberal way of these Reformers is always profits of already wealthy CEOs, before people.

          Reply
  3. tom

    April 23rd, 2021

    Bang!

    “What do you think private-sector long-term-care providers that suffered massive of loss of life as COVID-19 ripped through their properties will argue if they’re sued? They will go to court and claim – with justice in many cases – that they followed the rules, that everything they did was completely in compliance with the Government of Alberta’s regulations.”

    Reply
  4. Bob Raynard

    April 23rd, 2021

    So what happens if a future government repeals this law?

    Reply
  5. Political Ranger

    April 23rd, 2021

    Again, these goofballs are marching forward … with their gaze firmly fixed behind. GOA’s number 1 vision statement has always been and is now, “Ready, Fire!, Aim”.

    There is little doubt, in any thinking mind, anywhere, that long term care facilities and processes will improve significantly as the boomer generation shuffles through this final stage. If for no other reason, there is a huge economic opportunity here along with an equally huge political liability if things go sideways.

    Of course, the conservatives generally and the UCP specifically are totally fixated on and committed to existing business models that rely on historic back-room dealmaking and gov’t subsidies, in other words, corruption. It’s just not going to work when 30% or more of the population is going to be exposed to this. People will want and eventually demand a minimal level of competence and responsibility in the care of their elders in their society.
    Even in Alberta.

    Reply
  6. Dave

    April 23rd, 2021

    Isn’t this a typical thing faltering strongmen in authoritarian regimes do? They offer immunity or amnesty to supporters, benefactors or most importantly themselves in a bid to protect themselves if they lose power.

    Sometimes it works – Nixon got a pardon, although that came later and sometimes not – it worked for a while for Pinochet in Chile, but crumbled in the end. Of course, the Sky Palace guard still tries to put on a brave face by saying it is two years to the next election, so there is time to turn things around. Technically this is correct, but the leadership review is in a year and a half and if the UCP rebels (who seem to be becoming braver and more outspoken lately) have their way, it could be sooner.

    If the Federal Conservatives were in power, Kenney could have an easy out – they could appoint him to some prestigious position, like High Commissioner to some place, but alas for Kenney they are not. I suspect his next best plan is to go back to Federal politics, but I doubt the Federal Conservatives before an impending election are willing to embrace him at this time.

    However, after that election if O’Toole loses, the Federal Conservatives could be in some disarray and that could be Kenney’s chance. However, that Federal election also keeps getting pushed back and the risk is the UCP rebels could over run the Sky Palace bunker before Kenney gets to the Edmonton airport to fly back to Ottawa. Also, disconcertingly on a related note, Brian Jean keeps on popping up these days, no doubt interested in reclaiming the leadership he feels Kenney stole from him with dirty tricks.

    So the political landscape is rather treacherous for Kenney at this time. Such laws to protect the government and it allies may not work, but perhaps will help temporarily soothe Kenney’s growing unease.

    Reply
    • Mike J. Danysh

      April 23rd, 2021

      All true Dave, what Kenney is doing now is called “running scared.” Unfortunately for Alberta, Kenney is even more stubborn than he is scared. He may think of this as a tactical withdrawal toward a stronger defensive position (though I can’t imagine what that might be).

      Here’s a thought. Another CPC has-been, Andrew Scheer, still has US citizenship (last I heard, anyway). If worse (for Jason) comes to best (for Canada), maybe Jason could get Andy to adopt him. They could retire to some secluded bungalow(s) in the heart of Trumpland to write their memoirs. They could console themselves by telling the world how unfair it is, that those mean Canadians didn’t respect them.

      Reply
  7. Abs

    April 23rd, 2021

    I don’t like to swear before lunch, so let me say this. If the Titanic (2021 version “Satanic”) were sinking, Kenney and crew would be throwing the elderly passengers overboard to the sharks. This is after they set women and children adrift in lifeboats without oars. Think of it: they could have the ship all to themselves. And who would want it? Even the rats would jump, facing that prospect. Some say there are no rats on the “Satanic”, but it depends on your definition of a rat. Some rats tuck their tails between their legs.

    Reply
  8. Neil Lore

    April 23rd, 2021

    This is so strange to me – from what I can tell, the long-term care situation is kind of like the pandemic risk right before COVID – anyone who follows the news has read dozens of articles about how bad it is over at least a 10 year period and nothing has ever changed. Pretty obvious that long-term care would be regulated by the provinces, so anything that takes place there is the responsibility of the province. How do you hide something that has been right out in the open for years?
    Their best defense is the same principle at play in “Brave New World” – sure the truth is out there, but it’s boring and tedious. Wouldn’t you rather do some soma and go to an orgy than listen to all that talking?

    Reply
  9. A.O.

    April 23rd, 2021

    “The proposed legislation would ensure those delivering health services in good faith, according to public health guidance, cannot be held liable for damages due to Covid-19 spread or exposure.”

    Public Health guidance?

    Hmm……..guidelines like those given by dr. deena hinshaw in mid November of 2020 that granted permission to at least “25 sites to allow staff to travel from site to site, even though that increased the infection risk.”? It was announced during one of her many ‘presentations’ to Albertans after numerous ‘sites’ complained they were having difficulty hiring more staff. It was also well after it had been confirmed that ‘staff’ especially ‘staff that worked at more than one site’ were responsible for spreading the infection to residents in both Ontario and Quebec. To the best of my knowledge the permission she extended has never been rescinded.

    Could kenneys steadfast refusal to strengthen guidelines as cases mounted during the second wave be regarded as dereliction of duty?

    By September of 2020 there were nine new outbreaks in continuing care facilities which had grown by 27 more facilities in October of 2020. In November of 2020, while kenney was busying himself with other items on his ‘to do’ list, another 60 care facilities had outbreaks. As kenney dawdled, it became apparent that contact tracing had completely broken down, covid testing results could take up to 5 days and AHS staff had to provide teams to provide care in numerous facilities.

    Kenney also made it a priority to repeal legislation passed in Alberta so that workers in care homes had the right to refuse to be vaccinated. In March of this year, there was an outbreak of a covid-19 variant in the Carewest Dr. Vernon Manning Centre because two staff members exercised their right to decline to be vaccinated. Residents who had already received both of their doses became infected with the variant.

    Now, in the third wave kenney claims he has reintroduced Stage One restrictions when in fact, he has introduced a much looser version of Stage One Re-opening rules. He has frequently bragged on camera that Albertans have NEVER been subjected to a ‘real’ lockdown, so it is no wonder that his followers refuse to follow any restrictions suggested by this carpetbagger.

    Both hinshaw and kenney are responsible for counseling Albertans to show endless understanding and compassion to certain religious, anti-masker, anti-anyone-else-having-rights-not-to-be-infected groups who flagrantly disregard any and all guidelines. It also has been seen that Alberta has a most peculiar justice system, as only a very select few of those who have been ticketed, even have to appear in court (the most egregious offender, the gracelife pastor had his fine forgiven)

    I digress. Since Bill 70 was very quickly assembled for consideration after the Alberta Continuing Care Association (ACCA) registered as a lobbyist in January to push for legal liability legislation, I suspect the kenney ucp regime welcomed the opportunity to include itself and its advisors and minions among those who will be immune to lawsuits. While gotfried insists Bill 70 is about ‘holding people to account’ this bill ensures that having to prove ‘gross’ negligence will be almost impossible unless those who have actually provided the ‘guidelines’ under which the care facilities operate are FIRST held to account. The lobbying by the ACCA simply occurred at a convenient time so that the premier and his ministers also received immunity from prosecution.

    This pandemic was unexpected and many mistakes were made. I do not expect that certain provincial governments would drop everything else in order to save the lives of their citizens. The focus of right wing governments is the well being of international corporations, business and their donors.

    There is such a thing as a ‘learning curve’ – but to continue to show indifference and even contempt for certain segments of the populace during a pandemic is reprehensible. When a government uses a pandemic as cover to ram through bills which are unconstitutional while making deals in back rooms that they hide from the public as long as possible, these are not the hallmarks of a government that has any regard for the citizens that actually live in the province.

    The focus of this ucp government appears to ensure that a ‘scorched earth’ policy will be pursued with respect to Alberta.

    Reply
  10. Jimmy

    April 23rd, 2021

    Comments Minister Shandro?

    Reply

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