The Ontario government recently appointed a three-person Commission to investigate the spread of COVID-19 within long-term care (LTC) homes, how residents, staff and families were impacted and the adequacy of measures taken by the province and other parties to prevent, isolate and contain the spread. The Commission was appointed pursuant to section 78 of the Health Protection and Promotion Act, which empowers the Minister of Health to direct an officer of the ministry or any other person to investigate the causes of any disease or mortality in any part of Ontario. To be clear, this is not a full public inquiry, under the Public Inquiries Act, 2009.
The mandate of the Commission is broad. The Commissioners are to investigate and provide a report of findings and recommendations respecting five matters. Some of the issues within the mandate relate to the system as a whole. Others relate to how individual LTC homes responded to the pandemic. For example, the Commissioners are to look into "the adequacy of measures taken by parties, including the province, long-term care homes and other parties, to prevent, isolate and contain the spread of COVID-19, including the adequacy of existing legislative and regulatory provisions, policies, practices and specifications on infection prevention and control of infectious diseases in long-term care homes". They are also to examine "the impact of existing physical infrastructure, staffing approaches, labour relations, clinical oversight and other features of the long-term care system on the spread of COVID-19 in the long-term care homes".
It is as yet unknown how the Commissioners intend to fulfill their mandate, for example whether they will conduct informal interviews or more formal examinations of witnesses under oath, as well as how much of their investigation will be private and how much will be public. They are directed by the terms of reference to "hold such public and private (in person or virtual, as appropriate) meetings as they deem advisable in the course of investigation". Despite not being a full public inquiry, the terms of reference provide that section 33 of the Public Inquiries Act, 2009 applies to their work. It states that they may require any person by summons to give evidence on oath or affirmation at the inquiry; however they may also admit evidence not given under oath or affirmation. They also may require persons to produce in evidence at the inquiry such documents and things as they may specify, relevant to the subject matter of the inquiry, and not inadmissible in evidence. (The only type of evidence that is categorically inadmissible at an inquiry is that which would be inadmissible in court by reason of privilege.) The terms of reference state specifically that the Commissioners may request and review and consider any existing records or reports relevant to the mandate, and other medical, professional and business records, and they may do so in lieu of requiring persons to provide evidence and documents to the Commissioners through interviews or otherwise.
The terms of reference state that "The Commissioners shall conduct the investigation and make the report without expressing any conclusion or recommendation regarding the civil or criminal responsibility of any person or organization. The Commissioners shall further ensure that the conduct of the investigation does not in any way interfere or conflict with any ongoing criminal, civil or other legal proceedings or investigation, and without making any findings of fact with respect to civil or criminal responsibility of any person or organization." Despite this, LTC homes will be concerned about the reputational risk that a commission of inquiry presents to individual LTC homes and the industry in general, and the practical implementation of any recommendations made by the Commissioners and adopted by the government.
The Commissioners are expected to deliver their final report within nine months, by April 30, 2021. (They may also deliver interim reports). This is not a long time period for a mandate this extensive, and one can expect that the Commission will get down to work quickly.
In preparation for the requests that may come from the Commission, LTC homes may wish to consider taking some or all of the following steps:
- Start planning your response to questions that are within the mandate of the Commission, such as: what measures you took to prevent, isolate and contain the spread of COVID-19 within your LTC home; what legislative and regulatory provisions, policies, practices and specifications on infection prevention and control of infectious diseases either contributed to the spread or helped to contain it; and how your physical infrastructure and staffing arrangements impacted your experience with COVID-19;
- Begin collecting and reviewing documentation that is likely to be of interest to the Commission;
- Consider what recommendations you would make for mitigating future spread of disease in LTC homes;
- Consider how you would respond to tough questions that may be asked of you;
- Consult with legal counsel regarding how to ensure that privilege is maintained and protected;
- Consult with legal counsel to ensure co-ordination between responses to the Commission and positions taken in litigation; and
- Consult with legal counsel regarding how best to communicate with the Commission to ensure that the Commissioners are provided with accurate and complete industry specific information in order that recommendations proposed by the Commissioners are practical, thorough, relevant and aimed at the appropriate institutions and government actors.