This blog is co-written by our former articling student, Janet Son. 

Long-term care homes (“LTC homes”) remain particularly vulnerable in the country’s fight against COVID-19. Reportedly, LTC homes are connected to 79% of COVID-19 related deaths in Canada.

The Ontario Nurses Association (“ONA”) sought an interlocutory injunction to order the following LTC homes: Eatonville Care Centre, Anson Place, Hawthorne Place and Henley Place, to stop breaching Directives issued by the Chief Medical Officer of Health for Ontario (“CMOH”) under the Health Protection and Promotion Act (HPPA).

Directive #5 states that if a health care worker determines that an N95 respirator is required in the delivery of care to a patient or resident, the LTC home must provide and not unreasonably deny access to appropriate Personal Protective Equipment (“PPE”). Moreover,  Directive #3 makes it clear that LTC homes must use staff and resident cohorting to prevent the spread of COVID-19, which involves ensuring residents are separated by at least 2 meters and designating staff to care for either ill or healthy patients.

On April 23, 2020, the Ontario Superior Court of Justice released its decision ruling in favour of the ONA, granting the injunction and speaking to the urgency of this life or death matter.

In these four facilities, over 110 residents contracted COVID-19 with at least 54 dying from the illness and this number is growing every day. At least 7 nurses who worked at these facilities also contracted COVID-19, with one needing to be hospitalized.

Eatonville Care Centre

According to affidavit evidence of Regina Borkovskaia, a nurse at Eatonville, nurses were denied N95 respirators even when caring for residents diagnosed with COVID-19.  Management claimed that “there were not enough N95s to go around, and that in any case, they were unnecessary”.  Borkovskaia believes the decision to downgrade PPE was because of short-term economic expediency rather than to protect workers and patients. There were over 25 publicly confirmed deaths and 49 cases of COVID-19 at this facility, though the ONA believes the death count is closer to 43 rather than 25.

Anson Place

As of April 14, 2020, 69 residents of Anson Place tested positive for COVID-19.  Only nurses providing nose swab testing to residents were allowed an N95 respirator. Nurses were told to remove their N95 respirators and to use surgical masks instead despite providing care for patients that were actively contagious.  Furthermore, residents diagnosed with COVID-19 were not segregated into separate rooms and were less than 2 meters away from other residents in the same rooms, along with being treated by the same nursing staff.

Hawthorne Place

As of April 12, 2020, there were six diagnosed cases of COVID-19 and one death at Hawthorne Place. When staff demanded access to N95 respirators, limited supply was made available and nurses were given one to use for their entire shift. They were kept under lock and key by management and some nurses deposed they were denied the N95 though they were working in wings with active outbreaks.  Furthermore, while COVID-19 test results were pending, the residents and the nurses were not directed to self-isolate.  Rather, they were forced to return to work.

Henley Place

On March 29, 2020, a resident tested positive for COVID-19. The ONA requested that N95 respirators be provided to staff interacting with residents diagnosed or suspected of having COVID-19. This request was denied and the nurses were advised to use surgical masks even when caring for patients with a confirmed diagnosis.  Furthermore, staff had to go through a lengthy bureaucratic process before being approved to receive an N95 respirator.  The affidavits submitted detailed examples of nursing staff who were required to perform emergency procedures on COVID-19 patients without the use of N95 respirators.

The Labour Dispute and the Precautionary Principle

The ONA has filed grievances regarding these practices and a hearing had not yet been expedited. As a result, the ONA felt they had no choice but to request emergency relief from the Superior Court.

In the court’s decision, Justice Morgan highlighted Article 6.06 of the Collective Agreement between ONA and the LTC homes entitled “Health and Safety”, which states that “When faced with occupational health and safety decisions, the Home will not await full scientific or absolute certainty before taking reasonable action(s) that reduces risk and protects employees.” Further, under section 25(2)(h) of the Occupational Health and Safety Act, employers are to “take every precaution reasonable” for the protection of the worker.

In the context of COVID-19 where the modes of transmission of the virus are not yet fully known, Justice Morgan found the precautionary principle applied to support a requirement for nurses to be provided with N95 respirators when providing care to a confirmed or suspected case of COVID-19.

Furthermore, Justice Morgan found that the LTC homes’ argument that N95s are in short supply and on-demand access by nurses would impact the availability to others, “sorely miss[ed] the mark”, in particular since the nurses were sacrificing their personal interests and safety to serve the residents of these homes. The test for injunctive relief was met and compliance with Directive #5 ordered.

If you find yourself with similar concerns about adequate access to PPE at the workplace, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options.