An Overview of Class Actions and Covid-19 in Ontario’s Long-Term Care Facilities

This article examines the complex considerations that confront those pursuing class action lawsuits against Ontario’s long-term care (LTC) homes in response to the COVID-19 pandemic’s devastating impact on the residents of those facilities and their families. I present an overview of the contexts and circumstances in which Ontario’s LTC facilities responded to the pandemic. The discussion of several critical issues associated with the operation of LTC residences is intended to provide information about the appalling conditions in those facilities and the Ontario government’s concomitant failures, while also identifying some of the obstacles confronting plaintiffs. The interaction of historical, political, economic, and social considerations, associated with the operation of Ontario’s LTC homes, attests to the complexity of the contexts and circumstances in which the duty and standard of care in those facilities, during a pandemic, must be assessed. The challenges involved in establishing causation with respect to COVID-19 deaths in LTC facilities are integrally related to the “complex, multifaceted, and polycentric” * The Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System (Toronto: Ministry of the Attorney General, 2019), online: https://longtermcareinquiry.ca/en/final-report/ . nature of well-documented, enduring systemic problems, as well as residents’ age and frailty. The paper examines Ontario’s recent controversial legislative initiatives in terms of the issues presented by the adoption of “made-in-America” certification tests, and the retroactive imposition of a prohibitive standard of negligence.