In Ontario Nurses’ Assn. v. Chief Medical Officer of Health (Ontario), 2021 ONSC 5999, the Ontario Nurses’ Association (“ONA”) sought an order requiring the Chief Medical Officer of Health (“CMOH”) to amend provisions of two CMOH Directives issued under the Health Protection and Promotion Act (“HPPA”), or alternatively, for the Directives to be quashed. For the reasons outlined below, the Divisional Court did not agree and dismissed ONA’s application.
The Directives
Directive #1, revised on March 30, 2020, applies to health care providers and health care entities as defined under the HPPA. Directive #5, amended on October 8, 2020, applies to public hospitals and long-term care homes. Both directives address safety precautions to be taken with respect to patient interactions where COVID-19 is suspected or confirmed, and the use of personal protective equipment (“PPE”). Directive #5 is more comprehensive than Directive #1 and prevails in case of any conflict between the two. Both Directives require that:
- A point-of-care risk assessment (“PCRA”) must be performed by every regulated health care professional (or every health care worker) before every patient or interaction;
- At a minimum, contact and droplet precautions must be used by regulated health professionals and other health care workers for all interactions with suspected, presumed or confirmed COVID-19 patients, including the use of surgical/procedure masks; and
- Greater precautions be taken in relation to when aerosol-generating medical procedures (“AGMPs”) are planned or undertaken on patients with suspected, presumed or confirmed COVID-19 in order to protect against the possibility of airborne transmission of the virus.
The October 8, 2020 amendment to Directive #5 specifically provided for a greater scope for health professionals to require an N95, including the prohibition of employer denials of N95 on any basis where a PCRA determined that an N95 was necessary. The October 2020 version of the Directive #5 also provides that a nurse may take into consideration their proximity to a patient or resident and the mere fact of their interaction with one another in deciding whether an N95 respirator is required.
ONA’s Application
ONA argued that the Directives failed to take proper account of the risk of asymptomatic and aerosol transmission of COVID-19, instead focusing on contact or droplet transmission. ONA alleged that the CMOH did not take into account the precautionary principle, which states that “reasonable steps to reduce risk should not await scientific certainty.” The result of this, ONA claimed, was that health professionals were being denied N95 masks or discouraged from using them, even where PCRAs had determined their necessity. ONA argued that this constituted a breach of the right to life and security of the person under s. 7 of the Charter.
The Court’s Decision
The Court did not agree with ONA. The Court found that the CMOH had considered the precautionary principle, as the Directives referred to it. The Court also found that the CMOH had considered the possibility of the aerosol spread of COVID-19. Even if the Directives only recognized limited transmission by aerosol, they also allowed health professionals to take precautions against more widespread transmission, such as by allowing them to have an N95 any time they believed one was required. The Court found that this was an application of the precautionary principle.
The Court had concerns with ONA’s evidence, such as hearsay and lack of clarity in the accounts of alleged employer denials of N95s, to the extent that there was insufficient evidence of interference with N95 access. Additionally, the Court commented that any issues with access to N95 respirators were matters of labour law that can and should be addressed through remedies available in that context, and did not support ONA’s arguments that the Directives themselves were unreasonable. Since the Court did not accept that the Directives were the reason for any nurses being denied N95s or that a change to the language would resolve such a problem, ONA’s Charter claim also failed.
In Our View
The Court’s decision noted that the wording of the Directive contains enough flexibility to provide health professionals with the right to request N95s in any situation where they determine that their use is advisable. The Court concluded that the concerns raised by ONA were, in fact, addressed in the Directive including the concern relating to any heightened risks associated with airborne transmission of the virus. The Court’s conclusion that the Directive properly addressed health and safety concerns will support employers who have formulated health and safety protocols on the basis of the guidance contained in the Directive.
For more information, please contact Lynn Harnden at 613-940-2731 or Porter Heffernan at 613-940-2764.
