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Bill hindering COVID-negligence suits will also protect Kenney government from scrutiny

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Calgary-Fish Creek UCP MLA Richard Gotfried. Image credit: David J. Climenhaga

The Kenney government would like you to think the bill it introduced yesterday to make it hard to sue long-term-care companies for negligence causing the death from COVID-19 of anyone in their care "strikes a balance between protecting those who have dutifully followed the rules with still permitting civil action to proceed against those whose actions may have been grossly negligent."

A key government talking point to defend Bill 70, the COVID-19 Related Measures Act, is that it is similar to legislation recently introduced in other provinces, such as British Columbia and Ontario. This leaves the impression, the government surely hopes, that this is an altruistic law based on common sense and non-partisan principles identified across Canada, even by New Democrats.

It is likely, though, that the United Conservative Party government's principal goal, beyond even the desire to defend its friends in the for-profit long-term-care business, is the powerful urge to protect itself from scrutiny while not letting anything upset its privatization applecart.

The government's news release yesterday quoted Calgary-Fish Creek MLA Richard Gotfried, the bill's sponsor in the legislature and not coincidentally chair of the government's continuing-care review "advisory panel," piously explaining that "not having any provincial legislation in place to address COVID-19 civil liability protection, given the unparalleled dedication and accountability we have seen within the sector, could undermine the provision of care and services."

This, of course, is transparent nonsense.

Health Minister Tyler Shandro was quoted saying much the same thing, providing members of the fourth estate with two backup quotes for the price of one. "The proposed legislation would ensure those delivering health services in good faith, according to public health guidance, cannot be held liable for damages due to COVID-19 spread or exposure," he said.

This too the public will recognize as pish-posh.

It's presumably because they know their arguments will carry more than a whiff of self-interest that the government of Premier Jason Kenney has pulled out all the stops to sell this bill to a suspicious public.

Indeed, the news release included supportive quotes from Alberta Health Services CEO Verna Yiu, Covenant Health CEO Patrick Dumelie, Alberta Continuing Care Association Chair and AgeCare Health Services Inc. Vice-President Salimah Walji-Shivji, Christian Health Association of Alberta board member Wendy King, Greater Edmonton Foundation CEO Raymond Swonek, Bethany Care Society CEO Jennifer McCue, and Citadel Care Corp. CEO Gregg Ulveland. There was even one from Paul Boucher, the hapless president of the Alberta Medical Association, whose member physicians have just rejected the lousy contract the organization negotiated with the government on their behalf.

The key words in the news release are that the law would "extend COVID-19 civil liability protection to those in the health-care sector who have rigorously followed public-health orders and guidance throughout the pandemic." (Emphasis added.)

The government of Alberta -- and presumably those of B.C., Saskatchewan, Ontario, New Brunswick, and Nova Scotia as well -- is desperately anxious that the frightening lack of government oversight that already exists in long-term-care facilities not be exposed to public scrutiny.

As we know from bitter experience throughout the past year, terrible things happen in long-term care even when the thoroughly inadequate rules and regulations common to most Canadian provinces are followed.

What do you think private-sector long-term-care providers that suffered massive loss of life as COVID-19 ripped through their properties will argue if they're sued? They will go to court and claim -- with justice in many cases -- that they followed the rules, that everything they did was completely in compliance with the Government of Alberta's regulations.

Rules and regulations, that is, that were not up to the crisis caused by the rampaging coronavirus pandemic, that were badly enforced if they were enforced at all, and that were pathetically inadequate to protect patients and residents even from much less serious health challenges.

This at a time when the government of Alberta intends to gut the Nursing Homes Act in the name of "reducing red tape" and rid the province of what it claims are needless regulations.

This is certainly the purpose of Gotfried's panel -- readers need only watch its recommendations when they are announced to see that this is true.

The facts exposed in such court cases would reveal the truth, that the rules and regulations were already hopelessly inadequate when COVID-19 tore into Alberta, and that they need to be strengthened and extended, not the opposite as the UCP's ideology requires and its back-room promises to supporters in the industry demand.

Bill 70 is intended to be retroactive until March 2020, conveniently the time when large numbers of long-term-care residents began to die of COVID-19 in Alberta care facilities.

CTV quoted a partner in the Calgary-based Guardian Law firm arguing that "Bill 70 protects the profits of wrongdoers and their insurers at the expense of seniors." Mathew Farrell said the law would "grant care facilities a license to be irresponsible."

Arguably, they already have that licence. This will just extend it.

Interestingly, another Guardian Law partner, Jonathan Denis, a former Progressive-Conservative justice minister and attorney general, is leading a $25-million class-action negligence lawsuit against the McKenzie Towne Continuing Care Centre in Calgary. The suit alleges private-sector operator, Revera Inc., failed to follow protocols required to prevent an outbreak of COVID-19.

"We found there was a lack of preparation, there wasn't a plan to deal with the pandemic," Denis said in May 2020 of Revera's McKenzie Towne operation.

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions at The Globe and Mail and the Calgary Herald.

Image credit: David J. Climenhaga

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