By J. R. Moitessier
Will Ford’s failure to protect Long Term Care Facility Residents and Staff during the COVID-19 pandemic be his Walkerton?
Earlier posts, as well as mainstream media, have commented on the impact of budget cuts to public health funding, the significant reduction in inspections of long term care facilities, the disproportionate impact of the virus on lower socio-economic groups including front line long term care facility workers, the prior roll-back of minimum wage increases, and the significantly higher number of deaths in long term care facilities operated by for profit organizations. The crisis faced by residents of long term care facilities during this pandemic reflect the Ford government’s policies and its willingness to allow partisan dogma to trump reality and the lessons of the past.
In Orwellian fashion the Ford government – focusing on its ideology of fiscal restraint, cutbacks and efficiencies to benefit taxpayers in lieu of citizens – ignored the key findings of the inquiry by Mr. Justice Dennis O’Connor into the Walkerton water crisis of twenty years ago. In so far as the Ford government and its acolytes are concerned it is as if a “memory hole” erased Mike Harris’s Walkerton debacle and freed them from any responsibility to heed the lessons learned.
To avoid the current crisis in our long term care facilities from falling into its own “memory hole” it is essential that a public judicial inquiry with an appropriately crafted mandate is established to inquire into:
(a) the circumstances which caused thousands of long term care facility residents and staff to become ill, and over 1,200 to die as of May 12, 2020;
(b) the cause of these events including the effect, if any, of government policies, procedures and practices; and
(c) any other relevant matters that the Inquiry considers necessary to ensure the safety of Ontario’s long term care facility residents and staff,
in order to make such findings and recommendations as the Inquiry considers advisable to ensure the safety of Ontario’s long term care facility residents and staff.
The Walkerton Inquiry was designed with four principles in mind: thoroughness, expedition, openness to the public, and fairness. These considerations must govern any inquiry into the current crisis in our long term care facilities.
14.2.1 Thoroughness
Given the purpose of an inquiry, “[i]t is crucial,” as Mr. Justice Cory has said, “that an inquiry both be and appear to be independent and impartial in order to satisfy the public desire to learn the truth.” An inquiry must be thorough to realize this duty of independence and impartiality. It must examine all of the relevant issues with care and exactitude so as to leave no doubt that all questions raised by its mandate were answered and explored.
14.2.2 Expedition
To remain relevant, an inquiry should be expeditious. Some inquiries have been criticized for becoming bogged down in procedural wrangling and for taking so much time that they drift into irrelevance. Expedition in the conduct of an inquiry makes it more likely that members of the public will be engaged by the process and feel confident that their questions and concerns are being addressed. Moreover, an expeditious inquiry usually costs less. In the Walkerton Inquiry, we set timelines at the beginning, and, with few exceptions, they were met. This is a testament to the commitment and hard work of all those involved, including the parties, most of whom made a substantial contribution.
14.2.3 Openness to the Public
An inquiry should be public in the fullest sense. This means that the public must have access to the inquiry so that the story that is told can be heard. Further, to maintain public confidence, the process of an inquiry must be open to public scrutiny. On this issue, I echo the reflections of Justice S.G.M. Grange, commissioner of the Inquiry into Certain Deaths at the Hospital for Sick Children, who said:
I remember once thinking egotistically that all the evidence, all the antics, had only one aim: to convince the commissioner who, after all, eventually wrote the report. But I soon discovered my error. They are not just inquiries; they are public inquiries … I realized that there was another purpose to the inquiry just as important as one man’s solution to the mystery and that was to inform the public. Merely presenting the evidence in public, evidence which had hitherto been given only in private, served that purpose. The public has a special interest, a right to know and a right to form its opinion as it goes along.
An inquiry must also respond to the concerns of the public, especially to those individuals most affected by its raison d’être – in this case, the people of Walkerton. Mr. Justice Cory expressed this role as follows:
Open hearings function as a means of restoring the public confidence in the affected industry and in the regulations pertaining to it and their enforcement. As well, it can serve as a type of healing therapy for a community shocked and angered by a tragedy. It can channel the natural desire to assign blame and exact retribution into a constructive exercise providing recommendations for reform and improvement.
14.2.4 Fairness
The principles reviewed above all stem from the public’s interest in an inquiry. It is important to remember, however, that inquiries can have a serious impact on those implicated in the process. Thus, an inquiry must balance the interests of the public in finding out what happened with the rights of those involved to be treated fairly. As the Ontario Law Reform Commission has commented, the public benefits of an inquiry must be weighed against the costs of “interfering with the privacy, reputation, and legal interests of individuals.”
Mr. Justice O’Connor ultimately rejected the Harris government’s arguments that it bore no responsibility and made wide ranging recommendations to enhance the safety of drinking water by strengthening regulatory oversight, applying sound quality management and operating systems, protecting water sources, and adopting a cautious approach to making decisions that affect drinking water safety. He considered the impact of and made recommendations regarding, inter alia, expeditiously filling local medical officer of health positions with full time appointees, budget reductions and the failure of cabinet to conduct a proper risk assessment of such reductions, the failure to have an effective inspections regime which included both unannounced and announced inspections, and the creation of a regulatory culture in which the Harris government “discouraged any proposal to make the notification protocol for adverse water results legally binding”.
We can only speculate at to what the current situation in long term care facilities would be if the Ford government had but heeded the general conclusions of the Walkerton Inquiry and applied them to protect long term care facility residents and staff as illustrated by the following adaptation of Mr. Justice O’Connor’s report:
The risks of unsafe drinking water long term care facilities can be reduced to a negligible level by simultaneously introducing a number of measures: by placing multiple barriers aimed at preventing contaminants disease from reaching consumers residents and staff, by adopting a cautious approach to making decisions that affect drinking water safety long term care facilities, by ensuring that water providers long term care facility operators apply sound quality management and operating systems, and by providing for effective provincial government regulation and oversight.
Notwithstanding the benefits that such an inquiry would provide, and the established precedent of calling inquiries even where the number of fatalities were far less, the Ford government has refused to commit to a through, expeditious, public inquiry. Long term care facility residents, staff, and their families, as well as the media and the public deserve more.
Trent Research Group on the Pandemic 