CITATION: Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563
DIVISIONAL COURT FILE NO.: 310/21
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Stewart, Nishikawa JJ.
BETWEEN:
The Governing Council of the Salvation Army in Canada and the Salvation Army Isabel and Arthur Meighen Manor
Applicants
– and –
Patient Ombudsman
Respondent
Marina Sampson and Meredith Bacal, for the Applicants
Elyse Sunshine and Emma Gardiner, for the Respondent
HEARD at Toronto (by videoconference): July 13, 2022
REASONS FOR DECISION
NISHIKAWA J.
Overview
[1] In 2020, following the outbreak of the COVID-19 pandemic, the Respondent, Patient Ombudsman, initiated an investigation of long-term care homes in Ontario, pursuant to s. 13.3(4) of the Excellent Care for All Act, 2010, S.O. 2010, c. 14 (the “Act”). The investigation is focused on residents’ care and health care experience at long-term care homes (“LTCHs”) that experienced a COVID-19 outbreak (the “Investigation”).
[2] The Applicants, the Governing Council of the Salvation Army in Canada and the Salvation Army Isabel and Arthur Meighen Manor, seek judicial review of the Respondent’s decision to initiate the Investigation. The Applicants submit that the Respondent does not have jurisdiction to investigate them and in doing so is in breach of the Act. Specifically, the Applicants take the position that the Respondent is precluded from investigating by s. 13.3(5) of the Act because there were already other proceedings in connection with the same subject matter. The Applicants seek an order in the nature of certiorari quashing the decision to investigate. They also seek the following declarations: (i) that the Respondent’s Investigation into their long-term care home is null and void for lack of jurisdiction; and (ii) that the Respondent’s Investigation contravenes s. 13.3(5) of the Act.
Issues
[3] The application for judicial review raises the following issues:
(a) Was the Respondent entitled to commence the Investigation or was it precluded from investigating by s. 13.3(5) of the Act because the Investigation was in connection with a matter that is the subject of a proceeding?
(b) Alternatively, did the Respondent breach the duty of procedural fairness by failing to give adequate notice of the Investigation to the Applicants?
Background
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.
The Commission of Inquiry, Ontario Ombudsman Investigation and Class Proceedings
[14] As noted above, other investigations or proceedings relating to the handling of the COVID-19 pandemic by LTCHs have been commenced. The Applicants point to the investigations or proceedings described below as pre-dating the Investigation and thus precluding the Respondent from conducting its Investigation.
The Long-Term Care COVID-19 Commission of Inquiry
[15] On May 19, 2020, the Ontario government announced that it was launching an independent commission to investigate the spread of COVID-19 within LTCHs (the “Commission”). On July 29, 2020, the province appointed commissioners and outlined the Commission’s terms of reference. The Applicants were invited to submit written responses to a list of questions and they did so. The Commission released its final report on April 30, 2021.
The Ontario Ombudsman Investigation
[16] On June 1, 2020, the Ontario Ombudsman launched an investigation into the oversight of LTCHs by the province’s Ministry of Long-Term Care and Ministry of Health during the COVID-19 pandemic. As of the hearing of this application, the investigation was ongoing.
Class Proceedings
[17] On April 27, 2020, the law firm, Koskie Minsky LLP, announced that it served notice on the province of Ontario that it was commencing a class proceeding on behalf of Ontario residents of LTCHs. The statement of claim was issued on June 29, 2020.
[18] On June 1, 2020, Rochon Genova LLP, along with two other law firms, stated that it was investigating a potential class action involving several LTCHs in Ontario and their handling of the COVID-19 outbreak. The statement of claim was issued on July 28, 2020. The Applicants are named defendants in this proceeding. On September 30, 2020, class counsel issued a statement of claim for a proposed class action against the City of Toronto.
Analysis
Jurisdiction and Standard of Review
[19] The Respondent’s decision to initiate the Investigation pursuant to s. 13.3(4) of the Act is an exercise of a statutory power, as defined by s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). The Divisional Court thus has jurisdiction to judicially review such decision under ss. 2 and 6 of the JRPA.
[20] The Applicants submit that a correctness standard of review applies because the issue is the Patient Ombudsman’s jurisdiction to investigate where other proceedings have been commenced. The Respondent submits that because none of the exceptions articulated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 apply, the standard of review is reasonableness.
[21] In my view, as will be further detailed below, the issue is not one of jurisdiction but of statutory interpretation. The question raised by this application is whether the Patient Ombudsman has authority to proceed with an investigation in the circumstances of this case or whether it is prohibited from doing so because of the existence of other proceedings. As a result, a standard of reasonableness applies, Vavilov at para. 68.
Was the Patient Ombudsman Entitled to Commence the Investigation?
The Parties’ Positions
[22] The Applicants take the position that s. 13.3(5) of the Act prohibits the Respondent from proceeding with the Investigation because it is “in connection with” a matter that is the subject of a proceeding. The Applicants submit that the Commission, the Ontario Ombudsman Investigation, and the Class Proceedings are all in connection with the LTCH experience in Ontario during the COVID-19 pandemic, and all consider the care provided at LTCHs during the pandemic from different perspectives. The Applicants submit that these proceedings were commenced before the Respondent commenced its Investigation. In particular, they argue that the Investigation did not commence until proper notice was given to them in accordance with s. 13.3(6). That notice was not given until October 9, 2020, well after the commencement of the other proceedings.
[23] The Respondent raises two arguments in response to the Applicant’s submission on this issue. First, relying on the general notice published on its website on June 2, 2020, the Respondent takes the position that the Investigation was commenced before the other proceedings, except for the Ontario Ombudsman investigation, and therefore is not precluded by s. 13.3(5). Second, the Respondent submits that the subject matter of the Investigation is distinct from the subject matter of the other proceedings. The Respondent’s position is that the Investigation focuses on how the COVID-19 outbreaks affected the care and health care experience of residents and how the actions or inactions of individual LTCHs as well as common system factors impacted residents’ care and health care experience.
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 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.
Did the Respondent Violate the Duty of Procedural Fairness?
The Parties’ Positions
[37] Alternatively, the Applicants take the position that the Respondent’s process was procedurally unfair because they were not given direct notice until after the Investigation commenced. The Applicants submit that if the purported exercise of statutory power was made in June 2020, they did not receive notice of the investigation until October 9, 2020, contrary to the requirement of s. 13.3(6) that the Respondent give notice “before investigating[.]”
[38] The Respondent’s position is that given the factors identified in Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817, informing LTCHs of the investigation by way of the general notice accords with the duty of fairness. The Respondent submits that because the end result is non-binding recommendations, they have met any procedural fairness requirements that apply. The Respondent further submits that their choice of procedure should be respected and that any potential procedural unfairness was remedied by the October 9, 2020 notice.
Disposition
[39] Given my finding that the Respondent was precluded under s. 13.3(5) of the Act from commencing the Investigation, it is not strictly necessary to address the Applicants’ procedural fairness arguments.
[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.
Conclusion
[41] Accordingly, the Application for judicial review is granted. The decision to investigate the Applicants is quashed as contrary to s. 13.3(5) of the Act.
[42] The parties agreed that the successful party would be entitled to costs of the application of $25,000, all-inclusive. The Respondent shall pay the Applicants costs of $25,000.
“Nishikawa J.”
“Swinton J.”
“Stewart J.”
Released: November 24, 2022
CITATION: Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563
DIVISIONAL COURT FILE NO.: 310/21
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Stewart, Nishikawa JJ.
BETWEEN:
The Governing Council of the Salvation Army in Canada and the Salvation Army Isabel and Arthur Meighen Manor
Applicants
– and –
Patient Ombudsman
Respondent
REASONS FOR DECISION
Nishikawa J.
Released: November 24, 2022
[^1]: Of six LTCHs that were put on a “short list” for the Investigation, the Respondent gathered evidence from three LTCHs.