As the COVID-19 situation is developing, more incidents are coming to light involving the handling of residents in Canadian nursing homes during the pandemic. These incidents may subject nursing home management and employees to both criminal and civil legal action if they are found to be responsible for an unnecessary death or injury of a resident. 

In this article, we will discuss the legal implications of COVID-19 handling in nursing homes and explore what criminal charges may be laid in these cases. 

Could Nursing Homes Face Criminal Charges Over COVID-19 Negligence?

Yes, it’s possible that a manager, employee, or long-term care organization could face criminal negligence charges as a result of their handling of the COVID-19 situation which results in personal injury or death of a resident.

While criminal charges against managers and employees are rare, individuals and corporations have been convicted in situations where their actions in the workplace resulted in personal injury and death to others. 

What Criminal Charges Could An Employee or Organization Face?

The most likely charges that a person working for a nursing or long-term care home could face as a result of the COVID pandemic is criminal negligence.

Section 219(1) of the Criminal Code defines the offence of criminal negligence. This offence occurs when, in doing anything, or in omitting to do anything that it is a person’s duty to do, the person shows wanton or reckless disregard for the lives or safety of other persons. In this case, duty means a duty imposed by law. 

Section 216 to 217 of the Criminal Code lists some examples of where a duty may be imposed by law: 

  • Section 216 imposes a legal duty on every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. 
  • Section 217 imposes a legal duty on those directing work to ensure they take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

In 2003, the Criminal Code was amended to extend criminal liability to organizations so that an organization may be held liable for the actions of a director, partner, employee, member, agent or contractor of the organization.

What Are The Potential Penalties For Criminal Negligence?

A person found guilty of criminal negligence which results in the death of another person may be sentenced to imprisonment for life. If the criminal negligence results in bodily harm, the person may be subject to a term of up to 10 years imprisonment if the Crown proceeds by way of indictment, or up to six months imprisonment for a summary conviction offence. 

Criminal Negligence in the Workplace

The 2012 Ontario case of R v Metron Construction Corp. demonstrates the potential consequences to individuals and corporations when their actions in the workplace result in death. In Metron, a manager was supervising the renovation of a concrete balcony of an apartment building in Toronto. The manager, Fazilov, and five other workers boarded the swingstage, designed for two workers, to the 14th story balcony. As a result of the excess weight, the swing stage collapsed and four of the individuals died. Only one of the workers was secured by the two available lifelines, and this individual survived.

Metron Construction Corp. plead guilty to criminal negligence. It was agreed by the parties that Fazilov had failed to take reasonable steps to prevent bodily harm and death by: (1) directing and or permitting six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; (2) directing and/or permitting six workers to board the swing stage knowing that only two lifelines were available; and (3) permitting persons under the influence of a drug to work on the project.

What Actions Could Constitute Negligence WIth COVID-19?

If it is discovered that the actions of a nursing home organization, supervisor, employee, or contractor resulted in the bodily injury or death of a resident, it is possible that criminal charges could be laid in this case. These actions could also subject a registered professional such as a nurse to discipline with their regulatory body and civil lawsuits as well. 

In finding criminal negligence, a court will consider the relevant legislation governing a particular act or profession as well as professional standards. 

The type of actions which could result in criminal negligence may include:

  • Failing to provide or utilize required Personal Protective Equipment (PPE)
  • Performing actions outside of an individual’s scope of practice
  • Failing to monitor the health and safety of residents or staff
  • Failing to properly train staff on PPE usage or other safety protocols

The College of Nurses of Ontario has released practice information to help nurses navigate what their obligations and responsibilities may be amidst the COVID-19 pandemic. These resources are a helpful guide for organizations to understand how they may follow best practices during these unprecedented times. 

As well, in the Emergency Management and Civil Protections Act, the government reiterated that the Occupational Health and Safety Act prevails during any conflict with other directives, so the health and safety of staff and patients remain paramount during these times. 

What Should An Individual or Organization Facing Criminal Negligence Charges Do?

If you are concerned about criminal negligence charges as a result of COVID-19, your first step should be to contact an experienced criminal defence lawyer. At Toronto Defence Lawyers, we can help you navigate these challenging times and determine the best legal plan for your particular circumstances. 

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