By Florence Loyie, Edmontonjournal.com
Alberta's high court has ruled a class-action lawsuit can proceed against the government over fees charged to residents in long-term care homes.
The Alberta Court of Appeal ruled unanimously Friday against a bid by the province and nine regional health authorities to block a class-action challenge by the Elder Advocates of Alberta Society filed in 2005. The lawsuit relates to the accommodation fee increase charged by long-term care facilities that took effect in 2003.
The society claims the province overcharged some 14,000 seniors more than $128 million over a two-year period. The essence of the lawsuit is that while there was a 40-percent increase in long-term care fees charged to nursing home residents, the government reduced health-care funding for nursing homes.
When the increases were announced, a government news release said the higher fees would provide $58 million annually for operators of nursing homes to improve their services. The increases were not for health-care services, for which the government is responsible, but to cover the increased costs of room, board and housekeeping services, the release said.
The Elder Advocate Society maintained this did not happen and the government acted in bad faith, and with careless disregard for long-term care residents.
The organization's lawyer, Alan Garber, said the appeal court's decision is a victory for the province's long-term care residents, the vast majority of whom are elderly, disabled and do not have the resources or ability to individually sue the government.
Garber said the appeal court's ruling actually strengthens the society's lawsuit because when Court of Queen's Bench Justice Sheila Greckol certified the class action, she struck out certain causes of action, one being "breach of fiduciary duty."
The Court of Appeal said in its ruling that this claim should be allowed to proceed.
Garber said this is important because governments have only been held to owe fiduciary duties to status Indians and war veterans.
The Alberta Court of Appeal has now opened the door to governments owing fiduciary duties to a vulnerable class of people--elderly disabled seniors in long-term care, he said.
"This is the first case of its kind in Canadian history where a group of people has said to a government you are charging for something that is an insured service under our legislation and you shouldn't be doing it. This is a legal precedent for all of Canada," Garber said.
Alberta Justice officials could not be reached for comment.
