Minister promises transparency after document dust-up with long-term care commission

After a dust-up over the release of documents to Ontario's independent commission on long-term care, the cabinet minister responsible offered assurances that her government does want it to "get to the bottom" of what has happened in the province's seniors' homes.

But speaking to reporters on Tuesday, Minister Merrilee Fullerton didn't commit to giving the commission all of the documentation it says it still needs. Though she said she understands there could be "some element of waiving" cabinet confidence in order to release some documents, she also suggested some information would be withheld because "we have to also be cognizant of, and respectful of other groups that might be affected."

She was responding to a QP Briefing report that the commission is still waiting for records that would explain the rationale for government decisions concerning COVID-19, which has killed more than 2,300 long-term care residents in Ontario so far.

The commission also disputed the government's claim to have released nearly 50,000 documents, saying 26,101 were duplicates and 6,550 were "placeholders for documents to be provided in the future," leaving only 15,532 unique records.

Asked what led to that discrepancy, Fullerton didn't give a direct answer but said her government is committed to co-operating with the commissioners. She added, "And as you can imagine, sometimes communication channels can be not as seamless as we would like."

"And we're committed to working with the commission, and the commissioners, because I think we do want to be transparent, we do want to get to the bottom of it," she said.

Fullerton attributed the delay to the multiple independent investigations into the government's handling of the pandemic and the crisis in long-term care in particular — by the auditor general, the patient ombudsman and the Ontario ombudsman.

"So we've been providing the information that they're requesting, as much as possible, within the terms of reference," said Fullerton.

But there is nothing in the commission's terms of reference that would stop the government from turning over records to it, according to a lawyer with significant experience in commissions and public inquiries. He briefed QP Briefing on the background due to his ongoing work in this area of law.

In fact, the terms enable the government to quickly release documents while keeping them privileged, the lawyer said. That is often the case with commissions and inquiries — all but the most closely guarded documents are released to the commission and then the government of the day can claw some back, prohibiting them from becoming public, while allowing the commission to do its work with a full understanding of the facts.

"It's set up contemplating that all of this information is going to be handed over and then the issue of confidence or privilege will be dealt with after the fact," he said.

While the commission has the legal power to compel documents, those that are privileged or covered by cabinet confidence are excluded, the lawyer said. Some important records, such as those that contain advice from public servants to the premier and cabinet, would be covered by that constitutional protection but the government will often waive it and disclose those records while still holding back the most sensitive records, such as the minutes of cabinet meetings.

The lawyer also said that reviewing every document before releasing it — and there are two terabytes of data in this case — could take years. He also characterized the release of 50,000 documents, as the government initially claimed, as "nothing." For context, the recently concluded Collingwood Judicial Inquiry — also led by the lead LTC commissioner Justice Frank Marrocco — involved more than 400,000 records and took over two years.

The lawyer echoed the concerns of the commission that the completion of a comprehensive report by the April deadline is now at risk and he said it would be foolhardy for the government to refuse the commission an extension.

"Because the whole point of this is to get recommendations so that we don't fall into this tragedy again," the lawyer said. "You can't fail to provide them with the documents for months and months and months, and then demand that they produce a comprehensive report."

The issue became a matter of debate at question period this week.

"Yesterday, another 112 seniors in our long-term care homes caught COVID-19, in 24 hours," said NDP co-deputy leader MPP John Vanthof on Tuesday. "While the second wave races through long-term care, the government continues to delay and obstruct the release of information to their own long-term care commission. The body is set up to fix the crisis in long-term care. As reported by QP Briefing this morning, the commission refuted the government’s claims that they were not delaying the release of documents and pointed to 'continual delay.' What information is the premier afraid to share with the commission?"

Liberal MPP Mitzie Hunter had a similar line of questioning for the minister on Monday. "Tragically, this month alone, over 250 residents in long-term care have sadly died from COVID-19, yet the commission this government created to report on how COVID-19 is spread in long-term care settings has reported that the government is withholding the documents it needs to do its work," she said. "Why is this government impeding the work of the commission by withholding requested documents? Is it because they are afraid of what they might find?"

In response, the long-term care minister said her government is committed to transparency.

"That’s why we created the process by which the independent commissioners will report," Fullerton replied. "This is absolutely essential, that we get to the bottom of what happened. We’ve been consistently transparent."