Senior homes have been the target of multi-million dollar class action lawsuits across Canada related to COVID-19, including an action recently commenced in Alberta. The proposed classes include both residents and their families and the claims are largely grounded in negligence for failure to conduct regular testing to prevent the spread of COVID-19; failure to implement adequate protocols for infected residents; and failure to isolate infected residents. Common heads of damages include pain and suffering, emotional distress and loss of consortium. Additionally, the regulatory regime in which senior homes operate may not be considered significant mitigating factors.

As the COVID-19 pandemic carries on, senior homes should expect this trend in class actions will continue. It is not only senior homes that may be named in these lawsuits – government agencies may also be accused of failing in their stewardship role. Here we will examine the issues that impact British Columbia and Alberta in these types of claims both at the certification stage and beyond. We will also review the relevant British Columbia and Alberta legislation, regulations and public health orders which may impact the course and nature of these types of class proceedings.

Certification and beyond

At the certification hearing, the plaintiff has the onus to show “some basis in fact” for each of the certification requirements other than the first requirement that the claim as pleaded discloses a cause of action. Assuming that the pleaded claims do not diverge far from common law negligence, it is likely that this part of the test will be met. The contested grounds for certification will likely relate to the other parts of the test: namely, that there is an overly broad class definition, lack of evidentiary basis for the proposed common issues, and a failure to demonstrate that a class action is the preferable procedure.

The public nature of the issues involved, and governmental responses to same, may provide some interesting and complex arguments on the certification criteria. In demonstrating an identifiable class of individuals who were infected with COVID-19, plaintiffs are likely to rely on public health investigations conducted by provincial authorities, who may themselves be defendants. Detailed expert testimony, by epidemiologists and other medical experts, may be necessary for the defendants to refute the proposed size and scope of the class as well as its temporal aspects. Similarly, proposed common issues around exposure of class members to COVID-19 and the response plans that were implemented in regards to each resident may be highly technical in nature and require expert evidence to properly define. The involvement of such experts may have collateral benefits too. In Wilson v Depuy International Ltd¹ the Court stated that the ability of counsel to consult with medical experts may assist the parties in reaching a reasonable settlement, rather than proceeding to an expensive class action trial.

While expert involvement at the certification stage may be beneficial in defining the issues, it will not be weighed to determine those issues. As noted by the Alberta Court of Appeal in Warner v Smith & Nephew Inc:²   “[t]he existence of a scientific controversy, particularly at the certification stage, is not determinative of the merits of the claim. … [U]ncertainty in the expert evidence does not mean that the claim will necessarily be unsuccessful.” Defendants may however use expert evidence to support arguments that the nature and complexity of the individual issues outweigh the common issues, and that the goals of class proceedings, including behaviour modification, are addressed by alternative means such as a public health inquiry.

If a proposed class proceeding is certified, there will likely be additional hearings to determine the notice to be issued to the class and the administration of the notice. While many class actions settle prior to the determination of common issues via trial, more and more class claims are reaching the trial stage. Parties (including operators) should therefore consider at an early stage the type of trial evidence that may be required, including evidence on the nature of the COVID-19 infection, as it pertains to care practices and to each known class member.

The regulatory regime

Any proposed class proceeding brought against senior homes and/or government must also be considered in the context of the applicable regulations. A defendant to a potential class action in Alberta should consider relying on section 66.1 of the Alberta Public Health Act to argue that no action for damages may be brought against an organization acting under the direction of the Crown or medical officers for good faith health conduct directly or indirectly related to a public health emergency. However, the British Columbia situation is different as under section 10(1) of the British Columbia Emergency Health Services Act, only appointed or authorized persons have protections against liability. Further, statutory limitations on liability do not extend to senior homes in British Columbia unless future public health orders or legislative amendments provide such a defence. These may prove to be significant distinctions between Alberta and British Columbia claims.

Another consideration from a class action perspective is that both Alberta and British Columbia have laws requiring senior homes to have representative councils made up of family members to represent the interests of the persons in care. In Alberta, this obligation arises under the Resident and Family Councils Act and in British Columbia it is the Residential Care Regulation under the Community Care and Assisted Living Act. As a result, class proceedings may include family members as a proposed class, or sub-class, and allege these regulations give rise to additional duties of care. Senior homes should make all efforts to comply with obligations under these statutes throughout the COVID-19 pandemic, even if the interactions must be carried out electronically through video or audio conference. Councils created and taking action in good faith pursuant to this legislation are protected from liability, though they may become subject to administrative penalties or fines where conduct is made in bad faith, or contravenes specific sections of the legislation or a facility’s licence agreement.³

Alberta legislation may present an additional area of liability risk for operators. As part of an operator’s obligation to support a resident and family council under the Alberta Resident and Family Councils Act, the operator must “make space within the residential facility available, to the extent reasonably practicable, for meetings of resident and family councils.” A failure to do so could be framed as a contributing factor to COVID-19 related injuries, particularly pain and suffering. To meet this requirement during COVID-19, operators may want to hold virtual meetings as frequently as they would hold in-person meetings, and ensure that the virtual meetings meet the same needs as the in-person meetings. Alberta operators are further required under this Act to “take all requests, concerns and proposed solutions expressed by a resident, a member of a resident’s family or a resident and family council into consideration when making decisions that affect the residents.” The Residential Care Regulation imposes very similar obligations in British Columbia arising under section 59. As with any situation where litigation may be a risk, it is important for operators in both provinces to establish ways to demonstrate that they have considered the request, concerns, and proposed solutions.

Future considerations

Class proceedings against senior care facilities and government can be expected to proliferate throughout the COVID-19 pandemic due to the vulnerable population of care residents. Operators and public authorities can prepare for such proceedings and limit risk exposures by following best practices during a health emergency and documenting such practices in detail. Keeping open and clear lines of communication with residents and their families regarding all efforts to respond to the pandemic may be of particular importance. Documenting and storing all relevant records of such efforts (in accordance with applicable legislation), along with consistent and informative interactions with individual residents and family members, will help demonstrate the compliance efforts made at each stage of the response. Where internal investigations into outbreaks or preventative measures are required, these should be completed under the guidance and supervision of legal counsel.

In the event that an operator is faced with a class action, it should promptly take proactive steps to preserve and maintain all relevant records, both hard copy and electronic, that relate to the operator’s conduct, or that of any staff member, resident, or resident family member. These records will be critical to demonstrating regulatory and legislative compliance.

Dentons lawyers have a breadth of experience in advising clients in the long-term care sector and in defending class proceedings. Where class action risks are identified, Dentons is well placed to provide practical and helpful advice to minimize exposures and to defend claims that may be advanced.

Authored by Tom O’Leary, Kelly Osaka and Salima Shivji.

1. 2018 BCSC 1192 at paragraph 68.↩
2. 2016 ABCA 223 at paragraph 38.↩
3. See section 7 of the Resident and Family Councils Act which, in Alberta, protects the Minister, any inspector or any other person acting in good faith pursuant to the Act. The Act is silent on administrative penalties or offences, and does not contemplate bad faith actions.
   See section 21 of Community Care and Assisted Living Act which, in BC, protects a person or group acting in good faith under the Act, but contemplates liability and penalties for actions taken in bad faith, or in contravention of specific sections of the Act or specific terms of any applicable licences. The Residential Care Regulation contemplates liability insurance for operators respecting the greater degree of obligations arising under the Community Care and Assisted Living Act, as compared with Alberta’s narrower Resident and Family Councils Act. ↩