Pandemic class actions against the provinces

Class actions over COVID-19 handling of long-term care and nursing homes could follow different scripts in Canada's two largest provinces, the most affected by the pandemic.

Already, Ontario has passed legislation to shield itself from lawsuits for negligence arising from legislative and policy actions taken in good faith. 

It is also on the verge of enacting a bill that would change the nature of class-actions in their province.

Margaret Waddell, a partner at Waddell Philips PC in Toronto, says that Ontario's Crown Liability and Proceedings Act 2019 will create a significant hurdle to bringing lawsuits against the government for its role in the oversight of long-term care facilities. "And on top of that, the government is also considering putting into place specific legislation to exempt long-term care homes, and I would assume, also itself from lawsuits for how they've dealt with the COVID issues," she says.

Meanwhile, sweeping changes to the Class Proceedings Act proposed in Bill 161, which is expected to pass third reading and receive royal assent at any time, would narrow the criteria for the certification of class actions.

"They're going to be changing the test for certification to add in two concepts that they are importing out of the U.S. called 'superiority and predominance,'" says Waddell. "You need to prove that a class-action is superior to any other mode of resolving the dispute, and also that the common issues predominate over individual issues, which is a much higher burden than under the current test."

Many plaintiff-side groups advocated against the changes, even pointing to long-term care as an area adversely impacted by the changes, Waddell says. The concern is that a court could rule that individual issues predominate over a finding that there was a systemic problem at any particular facility, particularly once co-morbidity and rogue staff issues come into play.

"An individual issue in the context of a long-term care home is something like what health effects did a person suffer as a result of the systemic negligence," says Alex Dimson, a partner with Siskinds, which is not currently involved in any of these class-actions against homes. "Typically, the fact that that it was an individual issue would have to be determined by a court after the termination of common issues. Historically, that has not been an obstacle, but may become one as a result of Bill 161."

Dimson cites a 2009 Ontario Superior Court ruling in Glover v. Toronto (City) as an example of a class-action involving an outbreak at a long-term care home. In that case, the court acknowledged the existence of significant individual issues, but given the vulnerability of the population of the residents, it made sense to grant certification.

"I take from the fact that that case was certified prior to Bill 161, those types of cases would be able to proceed to trial," says Dimson. "In some cases, they would unfold in a manner that is not too different from what you'd see in a product liability case where the court looks at the systemic issues."

It's also possible, says Waddell, that some firms will have to handle claims against long-term care facilities as mass actions – individual claims brought on behalf of the various residents and their families. But those won't capture everyone in the same way that a class-action would.

According to its managing partner, Arthur Wechsler, Kugler Kandestin LLP in Montreal is representing plaintiffs in a class-action against the management company of a private care facility in Quebec that was hard-hit by the virus as a result of staff walking off the job.

"We're saying that you have a contract of service – a written agreement between the resident and residence – and that says you're going to take care of me, and you're going to have an obligation," says Wechsler. "We've sued on behalf of all of the residents or their families."

The class has yet to target the government of Quebec and its hospital networks, says Wechsler, even though other actions have been launched against them. The plaintiffs are  waiting for evidence that would shed light on the government's implication in running those facilities before they were placed under trusteeship.

"Our case is trying to be focused," says Wechsler. "We've tried to distinguish ourselves by saying you abandoned us. You vacated your post, and left the most vulnerable in a horrible state until the government stepped in, and when they did, the damage had already been done. Ours is a case of negligence and abandonment. If the government is found later on to have been responsible, we will possibly amend and add them."

Wechsler says that the investigations by the Quebec government, the police, and the coroner can help his case by pointing to where the evidence can be found. 

"Our case is not purely a COVID-case," says Wechsler. "Our case is an abandonment case which has been exacerbated by the COVID situation. We're suing on the basis of the contract and in the failure to respect the covenants to these elderly people."