|
Medical - Excellent Care for All Act, 2010 (ECFAA) - Cases. 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 considered a JR brought against a 'patient ombudsman' under the Excellent Care for All Act, 2010 (ECFAA) regarding a long-term care homes.
These present quotes set out some basics of the ECAA, and a summary of the Patient Ombudsman's investigation (to demonstrate it's process):The Legislative Scheme Under the Excellent Care For All Act
[4] The Patient Ombudsman was created under s. 13.1(1) of the Act. Pursuant to s. 13.1(2) of the Act, the functions of the Patient Ombudsman are as follows:(a) To receive and respond to complaints from patients and former patients of a health sector organization and their caregivers;
(b) To facilitate the resolution of complaints made by patients and former patients of a health sector organization and their caregivers;
(c) To undertake investigations of complaints made by patients and former patients of a health sector organization and their caregivers and to undertake investigations of health sector organizations on the patient ombudsman’s own initiative;
(d) To make recommendations to health sector organizations following the conclusion of investigations; and
(e) To do anything else provided for in the regulations. [5] Section 13.3 further defines the Patient Ombudsman’s authority to conduct investigations into patient complaints or on its own initiative. The relevant portions of s. 13.3 of the Act state as follows:Investigations on own initiative
(4) The patient ombudsman may also commence an investigation of the actions or inactions of one or more health sector organizations that relate to the patient care or health care experience provided by the organization or organizations in any case where the patient ombudsman believes that the matter should be investigated.
Restriction
(5) Despite subsection (4), the patient ombudsman shall not commence an investigation under that subsection in connection with a matter that is within the jurisdiction of another person or body or is the subject of a proceeding. [6] Subsection 13.2(5) of the Act provides a definition of “proceeding,” for the purposes of ss. 13.2 and 13.3, which states as follows:“proceeding” includes a proceeding held in, before or under the rules of a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a College within the meaning of the Regulated Health Professions Act, 1991, a committee of the Board of Regents continued under the Drugless Practitioners Act, a committee of the Ontario College of Social Workers and Social Service Workers under the Social Work and Social Service Work Act, 1998, an arbitrator or a mediator. The Patient Ombudsman Investigation
[7] In the spring of 2020, the Respondent received complaints about LTCHs relating to their handling of the COVID-19 crisis. Based on those complaints, the Respondent decided to launch an investigation on its own initiative.
[8] On June 2, 2020, the Respondent published a notice on its website advising that it intended to initiate an investigation that would focus on two issues: (1) how did the actions or inactions of individual LTCHs in response to COVID-19 outbreaks affect the care and healthcare experience of residents; and (2) what were the common system factors that influenced the actions or inactions of individual LTCHs that experienced outbreaks of COVID-19?
[9] The notice stated that the Patient Ombudsman would contact certain LTCHs directly and provide them with specific Notices of Investigation in advance of specific investigative activities directed towards individual LTCHs. Section 13.3(6) of the Act requires notice of an investigation in the following terms:Before investigating any matter, the patient ombudsman shall inform the relevant health sector organization and the patient, former patient, caregiver or other prescribed person, if any, who made the complaint that led to the investigation of his or her intention to make the investigation. [10] On October 9, 2020, the Applicants received a letter and Notice of Intent to Investigate (the “Notice”) by email from the Respondent’s lead investigator. The letter stated that the Respondent would be investigating the Isabel and Arthur Meighen Manor (“Meighen Manor”). Meighen Manor was one of four LTCHs that received a Notice of Intent to Investigate.[1] Until the Applicants received the letter, they were not aware of the Respondent’s intent to investigate.
[11] On October 15, 2020, the Applicants responded to the Notice and stated that due to the existence of other proceedings, as further detailed below, the proposed Investigation violated s. 13.3(5) of the Act.
[12] Between October 16 and 27, 2020, the Respondent sent the Applicants requests for documents and information. The Applicants continued to object to the Investigation as contrary to s. 13.3(5) of the Act. On October 27, 2020, counsel for the Respondent sent a letter to the Applicants justifying the basis for the Investigation. The letter stated that the Investigation was not precluded by s. 13.3(5) of the Act because it was commenced before the provincially-created Commission described below, which did not have terms of reference until July 2020. The letter further stated that the subject matter of the Investigation was distinct from both the Commission’s mandate and Class Proceedings that had been launched, which would only focus on the actions and inactions of LTCHs as they relate to liability.
[13] On November 2, 2020, the Applicants commenced an application in the Superior Court of Justice. Shortly after, the Respondent agreed to voluntarily stay the Investigation relating to Meighen Manor, pending the outcome of the application. The parties then agreed to transfer the proceeding to the Divisional Court and proceed by way of an application for judicial review. . 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, 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. . 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 held that a generic website posting of an investigation did not satisfy the ECFAA [s.13.3(6)] notice requirement:[40] As stated above, it is clear from the evidentiary record that the Applicants were not informed of the Investigation until they received the October 9, 2020 Notice. The posting of a generic announcement on the Patient Ombudsman’s website did not constitute notice for the purposes of s. 13.3(6) of the Act because it did not comply with the requirement that it “inform the relevant health sector organization of [the Patient Ombudsman’s] intention to make the investigation.” Of the 626 LTCHs in Ontario, only six were subject to the Investigation. The generic announcement did not inform any particular LTCH whether it was subject to the Investigation. The October 9, 2020 Notice to the Applicants, which specifically stated that it was notice pursuant to s. 13.3(6) of the Act, fulfilled the requirements of s. 13.3(6); the generic announcement on the website did not.
|
