By Flavia Zaka
There are 626 Long Term-Care (“LTC”) Homes in Ontario, housing more than 79,000 people. By the end of the first wave of COVID-19, 55% of the LTCs had reported an outbreak. To date, 1959 residents have died from exposure to the virus.
At least 15 proposed class actions against LTCs have been filed since March 17 in Ontario (most listed here, and an additional one here). Two of them name the Provincial Government as a (co-)defendant. They vary significantly in class size, damages, and number of defendants – the largest naming Sienna Senior Living as a proposed representative of 96 LTCs, along with the City of Toronto and Provincial Government as defendants. (The action proposes a class of defendants as well as plaintiffs – a rare situation that will be the topic of an upcoming blog.)
The class definitions vary. Some include all residents, while others limit the class to those who contracted the virus. One action even includes non-residents who contracted the virus from an infected LTC resident, or a cross-infected person. Most don’t have a fixed date range, remaining open until the end of the pandemic. There are significant overlaps in classes, which may lead to carriage motions.
The most striking similarities among the class actions are the allegations against the LTCs. The expansive lists include: lack of proper sanitation protocols; failure to implement screening measures and basic social distancing practices, including the separation of infected and non-infected residents; failure to comply with public health guidance, directives and orders; as well as severe understaffing. These increased the risk of exposure to the virus, resulting in pain and suffering, and in specific cases, illness and death. These allegations surface under four recurring causes of action against the LTCs: breach of contract, negligence, breach of fiduciary duty, and breach of the Occupier’s Liability Act. Causes of action against the government include breach of fiduciary duty, negligence and breach of section 7 of the Charter.
The damages claimed range from $1.5 million to $600 million. With LTC insurance coverage for infectious disease reportedly between $5million and $10 million for such claims, it is unlikely settlements will exceed these amounts. (These insurance policies are subject to renewal at the end of 2020 – the new ones offered do not cover infectious disease.)
In order to curtail the risk of operating in a pandemic, the Conservative Government in Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020. Section 2(1) offers immunity from COVID-19 liability to any person or organization (including the Crown) that exposed others to the virus, provided that (a) they made a “good faith effort” to comply with legislative, regulatory and policy requirements, and (b) that their actions/omissions did not constitute gross negligence. “Good faith effort” has been explicitly decoupled from reasonableness, defined in the Bill as “an honest effort, whether or not that effort is reasonable.” Gross negligence is not defined. What is clear, is that this is a significantly higher legal standard than negligence. The proposed legislation would be retroactive to March 17, 2020, affecting each of the proposed LTC class actions.
Determining gross negligence requires granular engagement with the facts, but one guiding principle is that there must be “a very marked departure” from the applicable standard of care.[1] This includes an assessment of the magnitude of foreseeable risk flowing from the failure to take due care.[2] As a species of negligence, there need not be conscious wrongdoing.[3]
Can a “good-faith” failure to comply with regulatory requirements be deemed grossly negligent? If one considers that LTC homes have a far greater standard of care, than say, a gym, by virtue of being entrusted with the care of such vulnerable populations, then a failure to rigorously engage in proper sanitation protocols, knowing the magnitude of harm that it would cause, may be a very marked departure from the expected standard of care.
If Bill 218 passes as currently worded, the filed class actions would be dismissed unless amended to include gross negligence or a lack of good faith attempt to follow government directives.[4] New actions filed would be assessed under the amended Class Proceedings Act (“CPA”), that came into force on October 1st. This presents its own set of new challenges to class actions, among them, the stricter certification criteria, discussed in an earlier blog. Of particular concern would be the amended section 5(1)(d), which requires that common issues predominate over individual ones. While the question of a marked departure from standard of care of the LTCs would be a strong common thread among all class members, the defendants are likely to focus on the individual harms suffered. Whether a breach of standard of care led to the individual harm – death, trauma, lung damage, etc. – must be proven over and again. Given the size of the class, these individual issues may overwhelm the common ones. It remains to be seen how the courts will assess the predominance requirement, and if LTC class actions will even be a terrain to test the amended CPA.
[1] McCulloch v. Murray, [1942] SCR, 141 (SCC) at 145.
[2] Lapshinoff v. Wray, 2020 BCCA 31.
[3] Dagenais v Timmins (City) (1995), 31 MPLR (2d) 196 (Ont CA); Wynter v Canada 2017 FCA 195.
[4] Section 2(6) of the Bill states: “Any proceeding referred to in subsection (4) that is commenced before the day this Act comes into force is deemed to have been dismissed, without costs, on the day this Act comes into force.”
