Judge allows class action against Ford government on COVID-19 long-term care deaths

Crosses are displayed outside a long-term care centre marking the deaths of multiple people that occurred during the COVID-19 pandemic. THE CANADIAN PRESS/Nathan Denette

A proposed class action against the Ontario government alleging “gross negligence” in preventing COVID-19 long-term care deaths and serious infection may be able to proceed to trial, pending a possible appeal from the province.

It’s not common for private citizens to sue the government and have their day in court.

In his Dec. 20 motion of certification, Justice Edward Belobaba said he believes there is enough legal analysis “to support at least an arguable chance of success for the tort claim against the (Minister of Long-Term Care) MLTC.”

In making the decision, Belobaba referenced a report by the Long-Term Care Commission that found the province “demonstrated a lack of urgency” and delayed implementing several key measures. He also quoted microbiologist Dr. Dick Zoutman, who suggested that 3,836 long-term care COVID-19 deaths—as well as 23,000 infections—were “largely preventable.”

While the plaintiffs, which includes four Ontario residents whose parent died of COVID-19 in long-term care, have had no direct interactions with the minister, Belobaba argues the preamble in the Long-Term Care Home Act could provide a basis for the tort claim.

“Preamble does say that the government (arguably the MLTC) has a duty to ‘take action’ in circumstances ‘where the care, safety, security and rights of residents might be compromised,’” he wrote.

Belobaba argues it would be “just and reasonable” to “impose a duty on the MLTC to take action without delay when the lives of long-term care residents are clearly at risk.”

The Justice also found that by alleging “gross negligence” the plaintiffs could circumvent the Supporting Ontario’s Recovery Act, which prevents COVID-19-related lawsuits.

At the same time, Belobaba noted the class action would be “challenging at best.”

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Joel Rochon, a lawyer representing the four plaintiffs, argued that both the government and private sector actors had “common responsibilities to protect the elderly residents.”

He said that historically, the government is protected from liability, meaning that litigation such as this has a “higher bar to reach than other proceedings.”

“There is recognition that not all government conduct can and should be shielded from legal consequences; it is not only at the ballot box that government will be held accountable,” he said in a written statement to CTV News Toronto.

“This decision is certainly an important addition to the canon of law that allows plaintiffs to hold the government to account through civil litigation, particularly for grossly negligent conduct that resulted in the unnecessary loss of life of over 5,000 of our most vulnerable citizens.”

Seniors were by far the hardest-hit demographic during the COVID-19 pandemic, with nearly 4,000 people dying prior to the release of a 322-page report by the Long-Term Care Commission on April 30, 2021.

The report cited a lack of adequate testing and personal protective equipment, as well as improper cohorting an a general failure to recognize the risks posed by COVID-19.

The minister of long-term care said at the time the government worked as fast as it could to prevent the spread of infection.

“You know, I think the government measures and processes, we were trying to move fast [..] and COVID-19 was moving faster,” Merrilee Fullerton said in May 2021.

Rochon said the government has filed notice that it intends to appeal the decision, which could add another six to 10 months to the class action’s timeline.

“If the court decides that there will not be an appeal, we proceed with the next steps in litigation, which will involve what will likely be a lengthy documentary and oral discovery process,” he said.

The government confirmed it sent its notice of appeal on Jan. 4.

Speaking to reporters Wednesday afternoon, Ontario Premier Doug Ford said his government is pushing back because they disagree with the claims in the lawsuit.

“Everyone pitched in. Every business, every person, every health-care worker. We gave it our all, 1,000 per cent,” Ford said. “Did we have some challenges? Sure we did, like the whole world did.”

“Did we perform extremely well through the pandemic….we were phenomenal, if you want to do comparisons across the world.”

With files from CTV News Toronto's Siobhan Morris