'Independent commission' into long-term care has legal experts guessing

By Jessica Smith Cross and David Hains

The Doug Ford government's announcement that it is conducting an "Independent Commission into Long-Term Care" — but not a public inquiry — has legal experts guessing about what exactly it intends to do.

Nevertheless, the debate has taken over Queen's Park, with the government resisting demands by the opposition to call a public inquiry into the systemic problems in long-term care, as well as the ongoing tragedy of the pandemic. The premier and Minister of Long-Term Care Merrilee Fullerton have responded by saying public inquiries take too long, and long-term care residents can't wait.

Meanwhile, the minister has suggested the commission will fall under the Public Inquiries Act.

"The Public Inquiries Act includes commissions and public inquiries," she said in Question Period Wednesday. "The commission will be independent. It will be non-partisan. It will have public hearings. It will include public reporting. The public will have input. That is the desired transparent effort that we know Ontarians deserve. That is what we will do."

However, her office could not immediately say how it will legally differ from a public inquiry held under that legislation, saying more information will be available when it launched in September.

This has prompted some speculation about what the government is intending.

"I had the same conversation with my colleagues yesterday because we too are confused," said Jane Meadus, who was counsel to the Ontario Council of Residents' Associations in the recent Long-Term Care Homes Public Inquiry, which dealt with the Elizabeth Wettlaufer murders. "The government really needs to clarify what the government is intending, because if it's under this legislation it is a public inquiry — but they seem to be wanting to somehow limit it."

To understand what the government's options are under provincial law, QP Briefing spoke with four lawyers experienced with public inquiries in Ontario, including Meadus. Two spoke on background only, because of their legal work.

All of the experts who spoke with QP Briefing said public inquiries can proceed very differently based on the terms set out by cabinet. Who cabinet appoints to lead the inquiry — a judge, a panel of subject matter experts, or anyone else of their choosing — determines the course of the inquiry.

However, once established, the Public Inquiries Act puts significant authority behind the inquiry.

"The point of doing it under the Act is the commissioner would have the same power a court would have...to demand witnesses show up to testify, and to demand the production of documents from the province whether they're privileged or not," said one of the legal experts who requested to speak on background. "That's kind of the guts of what a proper independent inquiry is."

That source also noted that if the government is indeed planning to appoint a commission as defined by the Public Inquiries Act, their work would legally be a public inquiry, whether it includes a public process or not.

The current legislation dates back to 2009, when the Liberal government of the day was frustrated with how long some inquiries — including the four-and-a-half year Cornwall Inquiry — had taken, and updated the process laid out in the Public Inquiries Act, he said.

According to the legislation, the premier and cabinet set the terms of reference for the public inquiry and any special provisions, as well as the date for the delivery of the commission’s report. The commission — a single commissioner or a small group appointed by cabinet to conduct the public inquiry — determines how to proceed within the terms set by cabinet. The commission can do research and interviews behind closed doors and hold public hearings, and have the power summon witnesses and documents.

The difference is illustrated in the two most recent public inquiries held in Ontario — The Long-Term Care Homes Public Inquiry and the Independent Commission of Financial Inquiry, which concluded in 2019 and 2018, respectively.

The former was led by an Ontario Court of Appeal judge — Justice Eileen Gillese (pictured right) — and included extensive research and public hearings over two years. The latter was led by a commission of three subject matter experts, chaired by B.C. Premier Gordon Campbell, and consisted of closed-door research with no public hearings. It took less than two months.

While the Campbell commission is not generally referred to as a public inquiry — and only the final report was made public — it is a public inquiry under the legislation, according to the legal experts.

"There's the law, and then the spirit of the law," said Meadus. "Doing something like that when they're behind closed doors, you don't know who they're talking to, and they're not open and public — while it is, under this legislation, I don't think it truly is a public inquiry in the way the legislation intended."

The government has another option, according to the legal experts. It can call an inquiry under another piece of legislation, such as the Health Protection and Promotion Act. That law allows the minister of health to appoint someone to hold an inquiry to investigate the causes of any disease or mortality. In this case, the Public Inquiries Act sets out the powers available to the inquiry. Even though the process is not referred to as a "public inquiry," it also has the power of summons.

An example of that is the SARS Commission, an investigation led by Justice Archie Campbell the Ontario Superior Court, who demanded production of documents and examined witnesses in private. There were six days of public sessions where the public and organizations to address the commissioner, but no court-like public hearings.

"If the government says we're going to do an independent review, and doesn't equip it with the power of summons, it's a lot weaker," said one lawyer who spoke on background is. "As long whatever the government is contemplating is under the Public Inquiries Act, the commissioner has tonnes of power."

Brian Gover, a Stockwoods LLP lawyer with experience in multiple public inquiries and commissions, said that based on public comments the "SARS Commission is clearly what they have in mind," he said, which means less transparency and public input in the process compared to a full-fledged public inquiry.

With the government's emphasis on speed, public hearings are likely to be limited. "If you want to move really fast, you don't want public hearings and a tonne of people with standing," said one of the lawyers who spoke on background.

Pursuing a review — outside of the Public Inquiries Act entirely— could be faster as well, Gover said. Public inquiries take longer in part because there is the potential for findings of legal misconduct by players involved. That means notices of misconduct would have to be issued, and the formal legal process to give adequate opportunity for responses extends the time horizon of the proceedings. Not having the potential for findings of legal misconduct not only decreases the potential time for a review, but also means that both government staffers and industry stakeholders have fewer liabilities, and would not be on the hook for significant potential legal costs.

Those notices of misconduct could be a very real concern in the case of long-term care homes, Gover added. He offered the potential parallel between the lack of water inspections in the Walkerton inquiry and the dramatic reduction in comprehensive inspections at long-term care homes. Such an issue might be worthwhile for a commissioner to investigate to see how the decision was made and who was involved.

In a review the commissioner might be more likely to balance systemic evaluations with individual responsibility, Gover explained. One of the concerns of the commissioner would be to avoid staying out of court with a legal challenge to the findings, because that would just prolong the proceedings.

The legal experts said the government wouldn't be precluded from taking action to improve long-term care as a public inquiry progressed, and noted that they often issue interim reports early into their mandates when there is a pressing issue the government should move quickly on.

According to Meadus, the fact-finding that occurs in public hearings — the lengthy kind, where many people have standing to testify — will be key to understanding that the tragedy that continues today, beyond what is already known. With out that, the industry, which is well-organized and well-funded, would likely have the most powerful voice.

"It's so important that this include all of those public pieces," she said. "We don't have people giving testimony about what is going on, what is happening, what the effect is on residents, a lot of that is only going to come out in a public inquiry, and it has to be broad enough to look at the government's actions as well."

(Photo by Andrew Francis Wallace / Toronto Star)

Clarification: This story has been updated to say that that the SARS Commission included six days of public sessions.