6 Ontario long-term care homes failed to follow COVID-19 public health advice, lawsuit alleges

Long-term care residents with COVID-19 kept in the same spaces as healthy residents.

A refusal to accept the province's offer of a "SWAT team" of healthcare workers to help manage an outbreak.

Staff told not to wear surgical masks because it "would scare the residents."

Those are just a few of the allegations against six for-profit long-term care homes in Ontario, as outlined in a proposed class action lawsuit, CBC News has learned.

The lawsuit comes amid a rising death toll in long-term care, with more than 570 elderly residents killed so far as the new coronavirus continues spreading through more than 130 facilities housing some of the province's most vulnerable residents.

"Premier Ford described the situation occurring in long-term care and retirement homes as a 'wildfire,'" said Pinta Maguire, partner and head of the medical malpractice section at Toronto-based Tyr LLP, the law firm behind the proposed class action.

"And the core of this claim is that this is a fire that should never have started."

A statement of claim filed on Friday through the province's Superior Court focuses on three long-term care homes in Toronto — Eatonville Care Centre, Vermont Square, and Hawthorne Place Care Centre — along with Cooksville Care Centre in Mississauga, Anson Place Care Centre in Hagersville, and Earls Court Village in London. 

All the homes are owned, operated or managed by for-profit retirement and long-term care provider Responsive Group Inc. or one of its subsidiaries, the statement of claim alleges.

Although the claim has been filed, a judge has not yet certified the claim as a class action and the allegations have not been tested in court.

The claim alleges that the homes — where more than 70 residents have died from COVID-19 — failed to plan for the pandemic.

It also alleges the facilities did not have adequate staff to care for residents safely, didn't communicate properly — or at all — with families of residents, and failed to comply with public health guidance regarding outbreak planning, supply and access to personal protective equipment (PPE), screening procedures, and testing of both residents and staff.

In a statement to CBC News, Responsive Group said it "continues to work closely with government, public health units and our health-care partners to accelerate testing, initiate outbreak protocols, and comply with all directives."

The company also noted that a court still has to determine whether the claim merits certification as a class action.

The filing of the lawsuit follows a judge's decision Thursday to grant an injunction to the Ontario Nurses Association ordering four Ontario care homes associated with Responsive Group to comply with provincial infection control and health standards.

Hawthorne Place employees told not to wear masks

At Hawthorne Place in North York, where there have been nine deaths and at least 47 cases of COVID-19, the claim alleges workers had limited access to personal protective gear.

Employees were limited to one gown each shift, told to return surgical masks for reuse, and said N-95 respirators were kept "under lock and key," the allegations continue.

Staff at Hawthorne were even directed by one manager "not to wear even a surgical mask as it would scare the residents," according to the statement of claim.

A personal support worker who currently works at Hawthorne — whose identity CBC News is protecting due to concerns about their job security — backed up the allegations about staff members having limited access to PPE.

"We're only allowed one mask for eight hours," she said. "If you want to get another mask, you have to hope the band bursts, or break it yourself, or just go and take one."

The worker also said she knows directly of seven colleagues who have tested positive for COVID-19 so far, and believes the true count could be higher (her own test came back negative).

The statement of claim alleges that in one instance, residents and staff at Hawthorne Place were placed in "extreme peril" after a resident was tested for COVID-19 — and later confirmed to have the respiratory illness — but was not isolated before the results came back, and continued to have access to shared areas during that time.

"If we don't feel safe, how can we make the residents feel safe?" questioned the personal support worker during her interview with CBC News.

Military sent to 2 homes in lawsuit

Hawthorne Place is one of five long-term care homes in Ontario where the military was called in to provide support Friday. And it's not the only facility in the class action getting that additional help. 

The Canadian Armed Forces are also going to Eatonville Care Centre, a long-term care home in Etobicoke that's under fire for alleged deficiencies related to testing, resident care, and communication with families in the lawsuit. 

"At Eatonville, despite knowledge of an outbreak at the Facility, residents exhibiting symptoms of COVID-19 were not tested for several days, reportedly due to the lack of testing swabs," the claim alleges.

More than 140 Eatonville residents have officially tested positive for the virus and 37 of them have died from COVID-19-related complications.

In one of those cases, the family of a resident received a call from management of the home because the resident was complaining of being neglected, including not being adequately cleaned after soiling himself, according to the claim.

The resident later died. His family alleges they found out he had suffered from COVID-19 only when the funeral home provided them with his death certificate. 

The statement of claim also makes pointed allegations about a third facility, roughly 40 kilometres southwest of Hamilton, in Hagersville, Ont.

Anson Place refused staffing offer from province

At Anson Place, the claim alleges "minimal PPE was provided to staff" during an outbreak, that the facility did not separate COVID-19 positive residents from healthy residents, and that it was among the homes with a "staffing crisis."

And yet, the claim continues, the home didn't take steps to fix the situation.

"For example, Anson Place received an offer from the province of Ontario to supply a 'SWAT team' of hospital workers to help manage its COVID-19 outbreak," the claim alleges.

"Anson Place refused the Province's offer, saying that with its current staffing levels, it was 'comfortable that we are currently able to meet the care needs of our residents.'"

Speaking to reporters on Wednesday, Premier Doug Ford condemned that decision.

"Anyone who makes that judgment call, I wonder why they're even in charge over at that home," said Ford. "When you have those many deaths, and those many positive cases of COVID-19, why wouldn't you [accept help]?"

The allegations against Anson Place hit home for one former resident's son.

When Mike McCarroll visited his dying mother in hospital late last month, he assumed the 95-year-old was dying of natural causes — not complications from COVID-19. 

"That wasn't something I even considered," McCarroll told CBC News. "We didn't know [the virus] was in Anson Place."

Ruby McCarroll had lived in the facility's retirement residence for five years when she was sent to hospital on March 23. Four days later her son was told by a nurse that the retired teacher had tested positive for COVID-19. 

Three days after that Ruby McCarroll died. 

She's one of 27 Anson Place residents who have succumbed to the disease caused by the new coronavirus. A quarter of the home's 101 residents have died of complications related to COVID-19, according to the statement of claim.

"Our family members go into these homes, we expect to get good care for our family members, said McCarroll. "In this case, I don't believe that's happened."

McCarroll is the lead plaintiff in the proposed class-action, and hopes the lawsuit brings him — and the loved ones of other residents — answers about how COVID-19 was able to spread through the home.

"We can't bring them back," McCarroll said. "So it's about making sure this never happens again."

Lauren Pelley can be reached at lauren.pelley@cbc.ca