Case: The Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2024 ONCA 40

Keywords: long-term care homes; COVID-19; judicial review; Patient Ombudsman

Synopsis:

Following the outbreak of the COVID-19 pandemic, the Appellant (“Patient Ombudsman”) initiates an investigation of long-term care homes in Ontario – specifically, residents’ care and health care experience at long-term care homes that experienced a COVID-19 outbreak. The Respondents bring a judicial review application as against the decision to investigate. (See Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563 (CanLII), at para. 2.)

Before the Divisional Court, the Respondents argue that the Appellant lacks jurisdiction and is precluded from investigating by s. 13.3(5) Excellent Care for All Act, 2010, S.O. 2010, c. 14. That section provides that the Patient Ombudsman “shall not commence an investigation…in connection with a matter that is within the jurisdiction of another person or body or is the subject of a proceeding”.

The Divisional Court (Swinton, Stewart, and Nishikawa JJ.) finds the matter is already the subject of proceedings, and quashes the Appellant’s investigation. (See Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563 (CanLII), at para. 41). Thereafter, the Patient Ombudsman is granted Leave to appeal. Ultimately, however, the Court of Appeal (Nordheimer, Copeland, and Dawe JJ.A.) dismisses the appeal. (See para. 6).

Importance:

The implications of the decision herein are potentially far-reaching. Does s. 13.3(5) of the Excellent Care for All Act create an investigative blind spot? For example, can a long-term care home or the Province pre-emptively avoid the consequences of a Patient Ombudsman’s investigation simply by engaging in civil proceedings or initiating an investigation first?

In this case the “matter” which the Appellant sought to investigate was the subject of the “Long-Term Care COVID-19 Commission of Inquiry” (which released its final report on April 30, 2021), an ongoing Ontario Ombudsman Investigation, and class action proceedings. (See Governing Council of the Salvation Army in Canada v. Patient Ombudsman, 2022 ONSC 6563 (CanLII), at paras. 14-18). While each of these processes touches some aspect of the Appellant’s proposed investigation, should that preclude exercise of the Patient Ombudsman’s functions?

The Court of Appeal emphasized that the language used in s. 13.3(5) is intended to be understood in “very broad” terms. (See para. 4). As authority for that proposition, the Court of Appeal cited Nowegijick v. The Queen, 1983 CanLII 18 (SCC) at p. 39. However, when one looks to the words of the Supreme Court of Canada, one does not find an explicit determination or finding as to the scope of the words “in connection with”, and certainly no context-specific interpretation of the Excellent Care for All Act. Rather, in the context of s. 87 of the Indian Act, RSC 1985, c I-5, the Court wrote:

The words “in respect of” are, in my opinion, words of the widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.

Whereas the Supreme Court of Canada clearly stated that “in respect of” is the “widest of any expression”, is it accurate to say that the words “in connection with” are perfectly coterminous with that language?

The Appellant took the position that, if the Divisional Court’s interpretation of the Act is correct, the Patient Ombudsman would “not be able to undertake the very types of investigation that the Act permits it to do”. (See para. 5). The Court of Appeal rejected that position, finding that the solution to the Appellant’s problem is not juridical, but legislative:

If the appellant’s concern is that the decision unduly restricts its mandate, then its remedy lies with having the government amend the Act to narrow the existing restriction. There is no error in the Divisional Court’s interpretation of that restriction in the Act as it currently stands. (See para. 5).

Counsel for the Appellant: Elyse Sunshine and Emma Gardiner (Rosen Sunshine LLP, Toronto)

Counsel for the Respondents: Marina Sampson and Meredith Bacal (Dentons, Toronto)

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