A Superior Court judge has ruled that nurses have the right to decide which personal protection equipment is needed when working in long-term-care homes with COVID-19.

Justice Edward Morgan of Ontario Superior Court sided with the Ontario Nurses’ Association in its application for an injunction that would allow nurses in long-term-care homes, including Eatonville Care Centre in Etobicoke, to err on the side of caution.

“Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat,” Morgan wrote in his judgment released late Thursday.

The emergency injunction has a second public health directive that deals with infection control measures, which ONA alleged were not properly implemented in the homes. That included keeping residents with COVID separate from those who were not infected to stop the spread of the virus, said Kate Hughes, of Cavalluzzo LLP, who argued the case for ONA. The injunction will remain in place until the outcome of an arbitration hearing, Hughes said.

ONA president, Vicki McKenna, said the association is “thrilled” that nurses in the homes will have access to proper protective equipment and homes will be forced to follow infection-control procedures.

“It is truly a huge relief to know that after exhausting all other avenues, the Ontario Superior Court has agreed with ONA that these employers must follow health and safety practices to prevent the spread of infection among long-term care residents and the registered nurses and health professionals who care for them,” McKenna said in a statement.

In his ruling, Morgan highlighted the precautionary principle — to err on the side of caution and take all reasonable measures to keep workers safe — that the late Justice Archie Campbell used in his 2003 report on SARS.

The hearing was held on Wednesday. ONA filed an application for the injunction last week, asking the Superior Court to order three nursing homes to stop “breaching” directives from Ontario’s chief medical officer meant to protect vulnerable seniors and the staff who serve them. Those three homes are Eatonville, Anson Place in Hagarsville and Hawthorne Place in North York. All homes have had outbreaks of COVID-19.

On Thursday, Responsive Group, which manages the homes for Rykka Care Centres, said it is, “comfortable with the decision,” saying it confirms that the directives from Ontario’s chief medical officer of health are appropriate to protect staff in long-term care.

Linda Calabrese, spokesperson for Responsive Group, said she is hoping to move to the arbitration process quickly, “so we can confirm our compliance” with the chief medical officer’s directives.

“All staff across all of our homes have had access to the necessary PPE as outlined by the very stringent safety requirements from the experts at Public Health and the Ministry of Health. We are committed to providing a safe environment for our staff,” Calabrese wrote.

Several infectious disease experts appeared at the hearing, but they disagreed on sound practices.

Justice Morgan wrote, “The only real conclusion I can draw from these battles of experts is that the evidence regarding the transmission of the COVID-19 virus ‘continues to evolve,’ as they say.”

At least 57 seniors have died at the three sites. Last week, the Star reported at least 31 residents at Eatonville Care Centre in Etobicoke had died. On Thursday, Eatonville’s executive director Evelyn MacDonald said in an emailed statement that the facility has seen a total of 37 deaths related to COVID-19. At Anson Place in Hagersville, at least 19 residents have died.

ONA contended the Rykka-operated homes did not follow a mandatory order issued by Ontario’s chief medical officer of health which states that long-term care homes must use staff and resident “cohorting to prevent the spread of COVID-19.”

In a statement last week, Responsive Group, the managing partner of Rykka, said it considers its homes’ staff and residents as family and was doing “everything we can” to protect them.

“Each of our homes has been working very closely with their local public health units,” read the statement.

“Throughout this fight (against COVID), we have had all the personal protective equipment we have needed to follow the very specific directives from Public Health to protect staff and work to prevent further spread of the virus — at all our homes.”

ONA also filed a second application against Primacare Living’s Henley Place in London. They allege the home had an outbreak and staff have “not been provided with readily available access” to PPE, such as N95 respirators, when providing care to residents with confirmed or suspected cases of COVID-19.

Loading... Loading... Loading... Loading... Loading... Loading...

The judgment noted that staff said they had to go through several layers of bureaucracy in order to access N95 masks.

On Thursday, Jill Knowlton, chief operating officer of Primacare Living which owns Henley Place, said, “Nothing is more important to us than the health and safety of our residents and staff.

“We have worked hard to implement each directive (from the chief medical officer) throughout this pandemic. We will continue to comply with these directives and the order of the court.” Knowlton also said she hopes to move to the arbitration hearing “as quickly as possible” to show the home has been complying with government directives.