Government sitting on documents that would explain its pandemic decisions: Long-term care commission

The independent commission investigating the crisis in Ontario's long-term care homes is pushing back against the Ford government in a dispute over the release of key documents, telling QP Briefing it's still waiting for records that would explain the rationale for government decisions concerning COVID-19.

The Ford government struck the commission at the end of July and gave it just nine months to investigate and report on how COVID-19 spread within long-term care homes and to provide guidance for the future. To date, more than 2,300 long-term care residents have died from COVID-19.

QP Briefing reported Friday that the Ford government has delayed the release of documents to the commission, "impeding" and negatively impacting its work, based on a statement from the commission's spokesperson.

In response, the Ministry of Long-Term Care issued a statement saying it is fully co-operating with the independent commission and that the province and its agencies have conducted 17 briefings with the commissioners and "produced over 47,460 records."

That message was repeated by the premier's press secretary, who characterized QP Briefing's report as misleading, and by Long-Term Care Minister Merrilee Fullerton in Question Period Monday.

It's ridiculous to imply we are delaying releasing documents when our officials have already produced nearly 50,000 records, including more than 5,000 since the end of October, and continue to work around the clock to get the Commissioners what they need to complete their work. https://t.co/zkVaeRlrgw

— Ivana Yelich (@yelich_ivana) November 27, 2020

But, in a new statement to QP Briefing on Monday afternoon, the commission disputed the government's claim — pegging the number of documents released at less than a third of the government's figure.

"To clarify, the government has advised that it has provided approximately 48,000 documents; however, 26,101 were duplicates and 6,550 were not documents but placeholders for documents to be provided in the future. As such, there have been 15,532 unique documents produced to date," the commission spokesperson said.

The commission was told early on that the government had two terabytes of data to sort through and "that there would be a considerable number of relevant documents culled from that data," the spokesperson said.

The spokesperson went on to say that the recently released auditor general’s report made it clear the relevant documents exist and are available.

"We appreciate the government is addressing and responding to the second wave of the pandemic but the continual delay in producing documents has negatively affected the commission’s execution of its mandate," the spokesperson said.

While the commission has the power to compel the production of documents, there is an exception for documents that are covered by legal privilege and the commission spokesperson said that is one of the issues causing the delay.

"Discussions on this topic have been ongoing since September," the commission spokesperson said. "Regardless of the reason, it is evident that the commission is still awaiting many documents explaining the rationale for the decisions made in preparation for and in responding to the COVID pandemic."

The commission's comments are a red flag, according to Jane Meadus, staff lawyer at the Advocacy Centre for the elderly, especially considering their source.

"This is a commission who is headed by a judge who would definitely be knowledgeable in these areas," she said, referring to lead commissioner Justice Frank Marrocco, associate chief justice of the Ontario Superior Court, who led the recently concluded Town of Collingwood Judicial Inquiry and was counsel to the Ontario government in the Walkerton Inquiry.

"He's been appointed by the government and if the commission is saying that they're not getting the documents that they need in order to move forward, I think that's really concerning about what the outcome of this is going to be," said Meadus. "Is this commission just for show? Or does the government really want to understand and learn from what happened?"

QP Briefing has reached out to the office of the Minister of Long-Term Care Merrilee Fullerton for an explanation of the discrepancy concerning how many documents have been released and to ask if she intends to claim privilege and withhold any documents from the commission, but did not receive a response.

Meanwhile, Deputy Premier and Health Minister Christine Elliott, who spoke to reporters Monday, indicated that some documents could be withheld. She said that her ministry has given the commission what it has asked for, "but if there are some documents that have to be kept confidential because of cabinet confidentiality, we have to do that."