‘Unreasonable, unjust, and wrong’: Ombudsman investigation highlights Ontario’s long-term care system collapse during pandemic 

When the ominous new coronavirus emerged in early 2020, many believed confining to our homes for a few weeks would “flatten the curve,” before we would return to our regularly scheduled programming. That optimism soon faded.

Within the first month of Ontario’s state of emergency there were 131 outbreaks reported in long-term care facilities and other settings where seniors were housed. There were 573 confirmed deaths, while 2,287 residents and 1,089 employees at these facilities tested positive. Two years later, by April 2022, more than 4,000 long-term care residents and 13 staff members had died from the virus — accounting for one-third of Ontario’s COVID-19 death toll, despite long-term care residents only representing a tiny fraction of the population.

By the time the World Health Organization declared an end to the global emergency on May 5, 2023, the pandemic had claimed the lives of more than 15,000 Ontarians.

As acute care beds in Peel breached capacity and pressures on staffing in the healthcare sector mounted, a lack of resources available to meet the surging demand coupled with a burnt-out workforce prevented critical support systems from staying afloat. The most vulnerable were hit the hardest. 

Long-term care homes — pillars of support for the aging population — were left to confront a problem that Ontario had shown it was completely unprepared to handle.

This lack of readiness led to a lawsuit against the provincial government for failing to implement protective measures in a timely manner. Last month, it was announced Ontario's Court of Appeal is allowing a class-action lawsuit to proceed against the minister of long-term care for alleged negligence regarding the government's response to COVID-19 after the Appeal Court upheld a previous decision from the Superior Court that certified the class action against the minister of long-term care but didn't allow it to proceed on several other grounds. The Province has appealed that certification and the plaintiffs also appealed the decision not to certify a class action on the other grounds, including against the minister of health and chief medical officer of health.

On February 6, the Appeal Court noted the mandate of the Ministry of Long-Term Care is arguably distinguishable from that of the Ministry of Health and the Chief Medical Officer of Health, which is aimed at protecting long-term care residents. The court added, “it would be inappropriate at this stage to definitively conclude that the appellants’ argument is certain to fail,” concluding that the court is “therefore of the view that the motion judge correctly found that the appellants’ claim that the MLTC owes a duty of care to LTC home residents when exercising statutory powers is not certain to fail, notwithstanding the MLTC’s responsibility to act in the general public interest.”

The four lead plaintiffs, who lost their parents to COVID-19 or related complications in 2020, allege in their lawsuit that while the Doug Ford provincial government knew by the end of January 2020 that residents of long-term care homes “would be at the greatest risk from the virus,” it “blatantly ignored and downplayed the risk,” and failed to enact protections until it was too late. The plaintiffs argue in their appeal the PCs’ lack of intervention was “high-handed and callous, demonstrating a wanton and reckless disregard for the safety of residents of LTC homes.” They go on to allege that thousands of deaths could have been prevented had the government acted more swiftly. The claims have not been proven in court. 

The pandemic had an irrevocable impact on long-term care homes across Ontario as the virus devastated communities and hospitals while the Ministry of Long-Term Care stood idly by. The neglect at the hands of the Ministry was detailed in a scathing 156-page report in September from Ontario Ombudsman Paul Dubé, which revealed “the Ministry took limited steps to enforce compliance with legislative requirements during the first wave of the pandemic.”

Dubé’s investigation into the Ministry of Long-Term Care’s oversight of long-term care homes through inspection and enforcement during the COVID-19 pandemic revealed that during the critical initial weeks of the first wave, the Ministry’s Inspections Branch — responsible for receiving and inspecting complaints about long-term care homes — stopped conducting on-site inspections. It revealed for seven weeks there were no inspections of long-term care homes from mid-March 2020 to early May, and no inspection reports were issued during those two months.

The Ministry is responsible for licensing the homes, receiving complaints, conducting compliance inspections, and taking enforcement action if a home is not complying with legal requirements. 

“Tragically, it was unprepared and unable to ensure the safety of long-term care residents and staff during the pandemic’s first wave. It is my opinion that this was unreasonable, unjust, and wrong,” he stated, noting further in the report “it is crucial that the Ministry fully understand and learn from the failure of the Inspections Branch to adequately and quickly respond to the emergency that arose in the long-term care sector in March 2020.”

The Ombudsman’s investigation revealed the pandemic “completely overwhelmed” the Ministry of Long-Term Care’s already overburdened inspection regime.

(Government of Ontario) 

While the inspection regime was already strained prior to the pandemic, the challenges brought on by COVID-19 “completely overwhelmed it,” according to the evidence gathered in Dubé’s report, which uncovered problems with nearly every aspect of the Inspections Branch’s processes during the first wave of the pandemic. It notes the Ministry had no plan or guidelines for how to conduct inspections amid a pandemic. It revealed infection prevention and control or personal protective equipment usage were not inspected in a timely manner, or at all, and that the Inspections Branch did little, or often nothing when homes did file reports about COVID-19 outbreaks. 

The Ombudsman’s report notes that even when inspections resumed and violations were found, the Inspections Branch often took the least severe enforcement action available, even in severe situations. Homes were given many months to fix significant issues that posed a serious risk of harm to residents, while others were not penalized to the extent they could have been, despite repeated findings of non-compliance, and any action taken was often documented in confusing and poorly written reports. The Ministry’s oversight resulted in an absence of protection for residents and staff, and a lack of accountability for the system.

Meanwhile, according to the report, which stems from the “first wave” of the COVID-19 pandemic that devastated hospitals and long-term care homes, nearly 80,000 vulnerable long-term care residents rely on the Ministry of Long-Term Care’s oversight to ensure their homes are safe and secure. 

“While each loss of life is a tragedy, certain high-risk and vulnerable populations were disproportionately impacted by the virus, including those working and living in Ontario’s long-term care homes,” the report stated.  

According to Dubé, as the first wave of the pandemic unfolded and COVID-related deaths surged in the sector, the Ombudsman office — which does not directly oversee long-term care homes but does have jurisdiction over the Ministry — received 269 complaints and inquiries from families of long-term care residents, employees of long-term care homes and other stakeholders in the sector.

Canadian Armed Forces personnel were deployed in the early days of the pandemic to assist a number of Ontario long-term care homes that were experiencing a crisis, and shortly after, it was reported in May 2020 that those deployed to these homes had witnessed “shocking living conditions,” according to the report. 

As the “grave situation” in the long-term care sector persisted, becoming increasingly evident, Dubé initiated his own investigation into the Ministries of Health and Long-Term Care’s oversight of the sector during the pandemic in June 2020. As his authority does not extend to individual long-term care homes, their staff, or public health units, Dubé’s investigation focused on how the two ministries ensured the safety of long-term care residents and staff, as well as the systemic changes and improvements necessary to ensure the province’s long-term care sector is better prepared “when future crises arise.” 

Through an investigation of more than 1.2 million documents and over 90 interviews, the Ombudsman uncovered “an oversight system that was strained before the pandemic, and proved to be wholly incapable and unprepared to handle the additional stresses posed by COVID-19. When the pandemic hit, the Ministry’s oversight mechanisms largely collapsed, with one Ministry employee describing it as ‘a complete system breakdown.’”

“The Ministry put little thought into how its standard triage risk system would assess COVID-related complaints, resulting in a failure to categorize serious allegations as ‘high-risk’” the report explained. “It also took a narrow approach to its mandate and we discovered that extremely serious COVID-related issues — such as infection prevention and control or personal protective equipment usage — were not inspected in a timely manner, or at all.”

In some cases, family members filed complaints about the staffing shortages of personal support workers in long-term care homes, which they said resulted in/led to residents not being fed, cleaned or given their medications. When the complaints were brought forward, one case said the Ministry inspector “reassured” them and then closed the file without taking action. Thirty-three residents died at that long-term care home during the first wave, the report noted, adding “It’s impossible to know what might have happened if the Ministry inspectors had diligently followed up on complaints.” 

The COVID-19 crisis in Peel became so dire that the Canadian Armed Forces were brought in to help at a Brampton long-term care home, along with a handful of others that were in crisis across the province.

(Image from Canadian Armed Forces) 

Alongside the province, the Region of Peel and its lower-tier municipalities were also ill-equipped to deal with the staggering healthcare crisis, and by April 2020 — less than a month since the world had closed its borders and shut down, the COVID-19 pandemic in Peel was beyond desolate. It was foreshadowing what would become one of the worst hit areas in Canada.

According to reporting from The Pointer during the early days of the pandemic, by April 24, 2020, there had already been 27 deaths in Peel’s long-term care homes, representing over one-third of the 70 COVID-19-related deaths in the Region at the time. At Brampton’s Grace Manor, one of Ontario’s worst-hit long-term care homes, men and women dressed in green and khaki uniforms descended from military vehicles as the Canadian Armed Forces needed to step in and keep the facility running as it became devastated by the virus.  

The pandemic was an eye-opener to the general public when the reality of the horrific treatment of seniors inside long-term care homes was laid bare for the world to see. 

Inspection reports from the Ministry of Long-term Care into Camilla Care Community in Mississauga in November 2022 found a staff member put residents inside the home at risk when the unnamed staffer received a positive COVID-19 test result during their shift. Instead of immediately leaving the premises, they pulled the results from the fax machine, tore it up and continued to work. Reports dating further back to December 2020 identified a lack of documentation when residents tested positive for COVID-19 and, in some instances, a failure to seek medical attention when symptoms persisted. In one case, no contact was made with the physician until the resident’s death. 

In September 2022, an inspection of Cooksville Care Centre in Mississauga found the home failed to ensure it carried out personal protective requirements when interacting with suspected cases of COVID-19 when on one occasion, a personal support worker did not wear an N95 respirator prior to entering in a resident’s room who had COVID-relate symptoms. These are just a few examples of the neglect inside the walls of Peel’s long-term care homes. 

The mistakes made during the pandemic and the harsh reality that the province was ill-equipped to handle a crisis of this scale are not new. 

In 2003, an independent Commission to Investigate the Introduction and Spread of Severe Acute Respiratory Syndrome (SARS) was created by the provincial government to investigate how the SARS virus came to the province, how the virus spread and how it was dealt with. The results of the investigation, released in 2006, looked at all aspects of the outbreak, including measures taken to protect the public and health workers. The report’s findings revealed the Ontario government needed to repair its long-term care sector before an outbreak of this nature happened again. But as the revelations laid out in Dubé’s investigation make clear the province’s long-term care sector was left nearly entirely in the dark, it’s evident the PC’s and the elected governments before them did not learn from the three-year investigation into the SARS virus.

“There is no longer any excuse for governments and hospitals to be caught off guard, no longer any excuse for health workers not to have available the maximum reasonable level of protection through appropriate equipment and training, and no longer any excuse for patients and visitors not to be protected by effective infection control practices,” the 2006 report stated. “SARS showed that Ontario’s public health system is broken and needs to be fixed.”

But in the nearly two decades since the report was commissioned, elected politicians have failed to mend the broken structure. 

The findings revealed in Dubé’s report are not the first signal that the Province has been failing its healthcare sector. Although the results of the last nearly four years have been a clear indication that the PC government needs to step up to the plate to keep Ontario’s healthcare system in check, Premier Doug Ford and Minister of Health Sylvia Jones have done little to acknowledge the ongoing crisis. This was evident when a report, released by the Financial Accountability Office of Ontario in March 2023, revealed the province’s health sector spending plan will create an even bigger shortfall of $21.3 billion by 2027/2028.

Health Minister Sylvia Jones; a review from the Financial Accountability Office of Ontario into the Province’s healthcare spending in the 2023 budget revealed that, at the current rate, the health care sector will continue to see a funding shortfall.

(X/Twitter) 

The 2023 report analyzed the Province's health sector spending plan in five priority areas, including long-term care. According to the FAO, the government allocated roughly $87.8 billion to be spent on health care by 2028 in its 2023 budget, despite indications that spending needs are expected to grow to around $93.8 billion, leaving the province in a shortfall, having neglected to allocate sufficient funds to support existing health sector programs and announced commitments.

Since taking office in 2018, the PC government has touted the strides made to improve access to healthcare, maintaining Ontario can no longer accept the “status quo.” It's a disconnected narrative from the reality that the Ford government has been drastically underspending in the midst of a healthcare crisis and a global pandemic that devastated hospitals and long-term care homes. 

In the spring of 2021, while Brampton’s test-positivity numbers were multiplying at alarming rates, Ontario’s former health minister Christine Elliott claimed the city had received “significant” assistance and that residents in Peel’s hotspots were getting all the help they are “entitled to.” Her thoughtless remarks came as Brampton was reporting a COVID test positivity rate of almost double that of the province.

As part of the 2023 budget, the PC government pledged to significantly expand home care and long-term care capacity by adding 30,000 net new long-term care beds by 2028 and spending an additional $1 billion over three years to increase the supply of home care services. But the FAO estimates that “Between 2019-20 and 2027-28… the number of Ontarians aged 75 and over will increase by 37 percent compared to the projected 34 percent increase in the number of beds,” meaning that “despite the significant increase in the number of long-term care beds by 2027-28, the FAO estimates that Ontario will still have fewer beds per Ontarian aged 75 over in 2027-28 than it did in 2019-20.” 

In 2022, ahead of the provincial election, the PC government announced a series of measures aimed at increasing the supply of nurses and personal support workers as part of its Plan to Stay Open policy document. Initiatives included addressing pay, training and regulatory barriers. The FAO estimates that 34,800 more nurses will be required by 2027 but only 31,900 will be added, resulting in a shortfall of 2,900 nurses. For PSW’s, 51,900 more employees will be required by 2027 but only 21,700 will be added, resulting in a shortfall of 30,100. The report warned these projected shortfalls “will result in the Province being unable to meet its expansion commitments in hospitals, home care and long-term care,” which will inevitably “have additional impacts on health sector service levels, including… average hours of direct care provided to long-term care residents,” among others. 

“Given that the Province's capacity expansion commitments in hospitals, home care and long-term care will not meet growth in demand for these services from Ontario's growing and aging population, the Province has not allocated sufficient funding to the health sector to support its programs and commitments, and the Province has not taken sufficient measures to supply the nurses and PSWs needed to deliver on its expansion commitments, challenges are expected to persist across Ontario's health care system,” it cautioned.  

As the PC government continues to sit under the microscope for failing to adequately invest in its healthcare sector, the Ombudsman’s report lays out 76 recommendations, 72 of which are directed to the Ministry and two that call on the provincial government to support the Ministry in carrying out its legislative responsibilities. The remaining two urge the Ministry and Province to work together to ensure the Ministry has sufficient inspectors and staff going forward.

The recommendations, which are geared towards “ensuring the province is prepared for the inevitable next pandemic,” include regular training for inspectors, securing sufficient stockpiles of personal protective equipment, and establishing clear criteria on when on-site inspections are required. Dubé recommended the Ministry always has staff with expertise in infection and control measures available for in-person inspections of long-term care homes; issue immediate compliance orders in situations where residents are at an ongoing risk of serious harm; and take a broad approach to its mandate by inspecting anything that leaves long-term care residents unsafe. He also called on the government to expand the circumstances in which homes must report critical incidents; and work with the Ministry to ensure the Inspections Branch has adequate staff.

In response to the damning unearthing of the dismantled state of Ontario’s long-term care homes, the PC government introduced the Fixing Long-Term Care Act in 2021, a new legislative tool that replaced the 2007 Long-Term Care Homes Act and focuses on staffing and care, accountability, enforcement, and transparency. As part of the updated legislation, in January the PC government announced $72.3 million to create a new Investigations Unit to be used as a “tool when escalated enforcement is needed to improve compliance and ensure resident safety.” The new unit will investigate various allegations including failing to protect a resident from abuse or neglect, repeated and ongoing non-compliance, failing to comply with Ministry inspector’s orders, suppressing and/or falsifying mandatory reports, and negligence of corporate directors.

The Ombudsman’s report recognizes that while “many significant changes have been made to shore up the province’s capacity to weather a similar emergency in future… much more needs to be done to address the serious lapses in oversight,” to ensure the province is better prepared “when future crises arise.” All of the recommendations made by Dubé have been accepted by the PC’s, and the Ministry has agreed to report back to the Ombudsman’s office every six months on its progress in implementing them.

“Policy makers must demonstrate leadership and unity to combat future public health threats,” the report states. “The people of Ontario should be able to count on their public services to learn lessons from our experience with COVID-19 and be adequately prepared for the next threat to our collective health.”

“I am hopeful that these evidence-based recommendations, aimed at building on changes already in progress and enhancing pandemic preparedness in the inspection regime for long-term care homes, will ensure that the Ministry is able to effectively meet its vital oversight responsibility during the next health crisis.”

Email: [email protected] 

Twitter: @mcpaigepeacock

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