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Long-Term Care Homes - Investigations. The Governing Council of the Salvation Army in Canada v. Patient Ombudsman
In The Governing Council of the Salvation Army in Canada v. Patient Ombudsman (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal from a JR which "quashed the appellant’s proposed investigation into long-term care homes":[1] The Patient Ombudsman appeals, with leave, from the decision of the Divisional Court that quashed the appellant’s proposed investigation into long-term care homes. The Divisional Court found that s. 13.3(5) of the Excellent Care for All Act, 2010, S.O. 2010, c. 14 (the “Act”) prohibited the investigation. That section prohibits the patient ombudsman from commencing an investigation in connection with a matter that is already the subject of a proceeding.
[2] The appellant originally asserted eight errors in the Divisional Court’s decision but four of those were abandoned. None of the remaining errors that are asserted are made out. In particular, the appellant now does not dispute the Divisional Court’s conclusion that, at the time that the appellant commenced its investigation in October 2020, there were at least four other proceedings extant.
[3] We do not agree that the Divisional Court erred in applying the reasonableness standard. The enunciation of that standard by the Divisional Court was correct as was its conclusion that the appellant had unreasonably concluded that its investigation was not covered by s. 13.3(5), for the reasons that follow. This is especially so given the appellant’s very recent concession that its investigation was commenced after these other proceedings.
[4] We also do not agree that the appellant’s investigation was not in connection with a matter that was the subject of these other proceedings. The language used in s. 13.3(5), namely, “in connection with” is very broad – see Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29 at p. 39. The appellant’s attempt to compartmentalize the subject matter of these other proceedings so as to separate them from the subject matter of its investigation fails to recognize the breadth of that language. The overlap between at least some of these proceedings is evident.
[5] Finally, we do not quarrel with the important role that the Patient Ombudsman may fulfill. However, we do not accept the appellant’s assertion that the Divisional Court’s decision will lead to the “absurd” result that the appellant will not be able to undertake the very types of investigation that the Act permits it to do. If the appellant’s concern is that the decision unduly restricts its mandate, then its remedy lies with having the government amend the Act to narrow the existing restriction. There is no error in the Divisional Court’s interpretation of that restriction in the Act as it currently stands. . Governing Council of the Salvation Army in Canada v. Patient Ombudsman
In Governing Council of the Salvation Army in Canada v. Patient Ombudsman (Div Court, 2022) the Divisional Court allowed a judicial review of a Patient Ombudsman's investigation of long-term care homes, as there were several other valid proceedings afoot and the Excellent Care for All Act, 2010 (ECFAA) barred investigations while the subject matter of the investigation was "within the jurisdiction of another person or body or is the subject of a proceeding" [ECFAA 13.3(5)]:Disposition
[24] In my view, the Respondent unreasonably concluded that s. 13.3(5) of the Act did not prevent it from proceeding with an Investigation. Given the facts and the terms of the Act, the Investigation is clearly “in connection with” a matter that is the subject matter of other proceedings, namely, the Commission, the Class Proceedings and the Ontario Ombudsman investigation.
[25] The modern approach to statutory interpretation requires that the words of a statute be read in their entire context and in their grammatical and ordinary sense, harmoniously, with the scheme of the act, the object of the act, and the intention of the law makers: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. The Court does not have the benefit of reasons from the Respondent that justify the decision to pursue the Investigation, given s. 13.3(5). Accordingly, this Court must engage in the exercise of statutory interpretation without the benefit of such reasons and only the limited justification provided in the October 27, 2020 letter referenced to above at paragraph 12.
[26] In addition to investigating patient complaints under s. 13.3(4) of the Act the Respondent has discretion to investigate, on its own initiative, actions or inactions of one or more health sector organizations that relate to the patient care or health care experience provided by the organization where the Respondent “believes that the matter should be investigated.” That discretion, however, is circumscribed by s. 13.3(5), which states that the Respondent “shall not” investigate in connection with a matter that is within the jurisdiction of another body or is the subject of a proceeding.
[27] Reading s. 13.3 of the Act in conjunction with the functions of the Patient Ombudsman in s. 13.1(2), the legislature has recognized the important role to be played by the Patient Ombudsman in investigating complaints or initiating investigations in order to make recommendations to health sector organizations. However, the express limitation in s. 13.3(5) on the Respondent’s discretion to investigate demonstrates a legislative balancing between the Respondent’s functions and the burden that a multiplicity of proceedings relating to the same matter could pose to health sector organizations and actors. It is within this statutory context that the sections are to be applied.
[28] The term “proceeding” is defined broadly in s. 13.2(5) of the Act to include proceedings before a court, tribunal or commission, among other things. Moreover, the words “in connection with a matter” in s. 13.3(5) are also broad in scope and contain no limiting language. In Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39, the Supreme Court of Canada stated that the words “in respect of” are “words of the widest possible scope,” importing meanings such as “in relation to” or “in connection with[.]” The language used in s. 13.3(5) suggests that once a “matter” is the subject of a proceeding or within the jurisdiction of another person or body, the Respondent is prohibited from initiating an investigation.
[29] The Respondent characterizes the Investigation as a “systemic investigation into the resident and caregiver experience at Ontario’s LTCHs that experienced outbreaks of COVID-19.” The Respondent submits that the focus of the Investigation is different from the other proceedings because: (i) the focus of the Commission is the prevention of the spread of disease and the protection of public health; (ii) the focus of the Ontario Ombudsman investigation is provincial government oversight; and (iii) the focus of the Class Proceedings is government actions and finding fault or liability with the LTCHs.
[30] While each of the other proceedings may have a slightly different focus, they all relate to the LTCHs handling of the COVID-19 pandemic and the impact on patients and their families. In my view, given the use of the broad terms “in connection with a matter” that is the subject of a proceeding, it would be contrary to the legislative intent behind s. 13.3(5) of the Act to carve out a narrower area for investigation by the Respondent where there is significant overlap in the subject matter of the Investigation and the other proceedings. Moreover, to date, the Investigation had involved only six out of 626 LTCHs in Ontario, and is far from systemic in nature.
[31] The Commission, the Ontario Ombudsman investigation and the Class Proceedings all relate to, and are therefore in connection with, the experience of LTCHs during the COVID-19 pandemic. All of those proceedings consider or will consider the care provided by LTCHs during the pandemic, including from the perspective of patients and their families. For example, the Commission’s terms of reference include how the pre-COVID state of the LTCH system contributed to the spread of the virus within homes including how residents, staff, visitors and family were impacted. (Emphasis added.) In fact, the Commission’s final report made at least five recommendations directed at LTCHs.
[32] I do not accept the Respondent’s position that the Investigation predated the Commission and the Class Proceedings. By June 2, 2020 when the Respondent made its announcement, those proceedings had already been commenced. The Commission was announced on May 19, 2020 and the Class Proceedings were announced on April 27 and June 1, 2020. I reject the Respondent’s submission that the Commission was not commenced until July 27, 2020 when the commissioners were appointed or that the Class Proceedings were not commenced until the Statements of Claim were served or issued, on June 29 and September 30, 2020. By that logic, the Respondent’s position that it commenced the Investigation on June 2, 2020 when it posted a generic announcement on its website would also not be tenable.
[33] In any event, the notice on the Respondent’s website stated that specific LTCHs would be notified if they were going to be investigated. Subsection 13.3(6) of the Act requires that notice be given “before investigating[.]” The Applicants were unaware of the Investigation until they received the Notice on October 9, 2020. On cross-examination, the Respondent’s representative admitted that they had not informed the Applicant of the Investigation before October 9, 2020. As a result, the Investigation did not commence until that date and was thus initiated well after all of the other proceedings.
[34] The Respondent’s position also fails to address the fact that the Ontario Ombudsman investigation was announced on June 1, 2020, a day before the Respondent’s announcement. The Ontario Ombudsman investigation alone is a proceeding in connection with the subject matter under s. 13.3(5) and would preclude the Investigation.
[35] Moreover, although knowledge is not a relevant factor under s. 13.3(5), the Respondent’s representative admitted on cross-examination that when it commenced the Investigation the Respondent knew about the Ontario Ombudsman investigation, the Commission and the Class Proceedings. The Respondent does not challenge the authority of the Ontario Ombudsman to launch an investigation, nor does it challenge the authority of the Ontario government to launch a Commission of Inquiry.
[36] Accordingly, the Investigation is in connection with a matter that is the subject of multiple proceedings – the Commission, the Ontario Ombudsman investigation and the Class Proceedings. The Respondent is precluded under s. 13.3(5) from proceeding with the Investigation.
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