( Disponible en anglais seulement )
The Ontario Superior Court of Justice released a decision on April 23, 2020, Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467, granting an interlocutory injunction requiring four Long-Term Care (“LTC”) homes to act in accordance with Directive #3 and Directive #5 (together the “Directives”) issued by the Chief Medical Officer of Health for Ontario (“CMOH”). Below we provide a brief overview of the case and highlight key issues for health sector employers.
The application was brought by the Ontario Nurses’ Association (“ONA”) on behalf of members employed at four LTC home experiencing COVID-19 outbreaks. ONA had brought grievances against the homes based on the collective agreement, but requested that the court grant an injunction requiring immediate compliance with the Directives.
The CMOH issued the Directives pursuant to section 77.7 of the Health Protection and Promotion Act (Ontario) (“HPPA”). Directive #3 set out required precautions and procedures for LTC homes, including requirements relating to staff and resident cohorting. Directive #5 applied to both LTC homes and hospitals and set out required precautions and procedures relating to the supply and use of Personal Protective Equipment (“PPE”), including the use of N95 respirator masks.
Compliance with the Directives varied significantly among the four Ontario LTC homes named in this litigation. For example, the Court found that at one LTC home only nurses in contact with patients with confirmed cases of COVID-19 received the N95 masks. Another LTC home prohibited nurses from wearing N95 masks “on the basis of a point-of-care risk assessment” where there was disagreement between the nurse and LTC home as to whether this was reasonable and appropriate. Counsel for the LTC homes characterized the restricted access as a measure to address the allocation of scarce resources, in particular the availability of PPE. The evidence led by ONA also suggested that the LTC homes in question were also not using proper isolation and cohorting procedures as stipulated by Directive # 3.
Both ONA and the LTC homes retained expert witnesses to address the efficacy of PPEs such as N95 masks. The court found that the varied evidence given by the respective experts simply “demonstrates that the expert community is still trying to come to grips with the complexities of the COVID-19 virus”. The court specifically noted that due to the unknown dangers and rapid threat of contagion in LTC homes, Directive # 5 provided that the final decision regarding use of PPEs, including use of a fitted N95 mask was based on the assessment and professional judgment of the point-of care nurse(s) that such measures were appropriate. Furthermore, the court emphasized that the duty under Occupational Health and Safety Act (Ontario) (“OHSA”) to “take every precaution reasonable” in order to protect employees. This precautionary principle also binds the CMOH when “issuing Directives in the event of an outbreak of infectious disease.”
In determining that the test for injunctive relief was met, the court held that there was no prejudice suffered by the Respondent LTC homes that would outweigh the irreparable harm to the health care providers if the Directives were not followed. The court concluded that “the balance of convenience favours those measures that give primacy to the health and safety of the medical personnel and those that they treat.”
In conclusion, the point of care nurses were empowered under the Order to require their LTC home employers to provide access to fitted N95 facial respirators and other appropriate PPE as determined appropriate by the nurse in circumstances consistent with Directive #5. The Respondents were also ordered to implement administrative controls such as isolating and cohorting of residents and staff during the COVID-19 crisis, as set out in Directives #3 and #5 issued by the CMOH.
The court’s Order shall be in effect until the grievances against the Respondents “in respect of these and related matters under their collective agreements, or until further Order of this court”.
Takeaways for LTC homes and Hospitals
LTC homes must implement and maintain appropriate isolating and cohorting protocols for staff and residents throughout the duration of the COVID-19 pandemic.
OHSA requires employers to proactively take every precaution reasonable for the safety of employees. Recognizing that Directive #5 applies to public hospitals and LTC homes, it is important to consider the implications for both LTC home and hospital employers.
As set out in Directive # 5, a point-of-care risk assessment (PCRA) must be performed by every health care worker before every patient or resident interaction in a public hospital or LTC home. Further,
[i]f a health care worker determines, based on the PCRA, and based on their professional and clinical judgement, that health and safety measures may be required in the delivery of care to the patient or resident, then the public hospital or long-term care home must provide that health care worker with access to the appropriate health and safety control measures, including an N95 respirator. The public hospital or long-term care home will not unreasonably deny access to the appropriate PPE.
The court’s finding raises considerable challenges for LTC homes and hospitals, and specifically, that the nurse at the point of care has the final say as to whether specific health and safety measures or PPE, including N95s, are required. The LTC home must facilitate access to whatever is required, as determined by the nurse, however, this does not take into consideration current realities, including the fact that certain forms of PPE such as N95 masks are limited and are in demand across the world.
It is important to ensure that this decision is considered within the full context of Directive #5, which attempts to achieve a balance in the respective rights and obligations of hospitals, LTC homes, health care workers and governments during this pandemic. This includes:
- Hospitals, LTC homes, and health care workers must engage in the conservation and stewardship of PPE
- Hospitals and LTC homes must provide all health care workers and other employees with information on the safe utilization of all PPE and all health care workers and other employees must be appropriately trained to safely don and doff all PPE
- Hospitals and LTC homes must assess the available supply of PPE on an ongoing basis and explore all available avenues to obtain and maintain a sufficient supply of PPE
- In the event that the supply of PPE reaches a point where utilization rates indicate that a shortage will occur, the government and employers, as appropriate, are responsible for developing contingency plans, in consultation with affected labour unions, to ensure the safety of health care workers and other employees.
Miller Thomson is closely monitoring the unprecedented measures being taken by the federal and provincial governments in response to COVID-19 to ensure that we provide our clients with the appropriate support in this rapidly changing environment. We have written on a variety of topics to help identify the pertinent issues, understand the legal implications, minimize risk exposure and manage legal obligations. For articles, information updates and firm developments, please visit our COVID-19 Resources page.