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

• Author: Jordan Assaraf
• Pages: 51-92



An Overview of Class Actions and COVID-19 in

Ontario’s Long-Term Care Facilities

Jordan Assaraf

: This article examines the complex considerations that con-

front 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 pro-

vide 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 histor-

ical, political, economic, and social considerations, associated with the

operation of Ontario’s LTC homes, attests to the complexity of the con-

texts 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 facili-

ties are integrally related to the “complex, multifaceted, and polycen-

tric”* nature of well-documented, enduring systemic problems, as well as

residents’ age and frailty. The paper examines Ontario’s recent controver-

sial 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.

* 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/.

CCAR 16-2.indb 51CCAR 16-2.indb 51 2021-01-20 2:30:48 PM2021-01-20 2:30:48 PM

CCAR 16-2.indb 52CCAR 16-2.indb 52 2021-01-20 2:30:48 PM2021-01-20 2:30:48 PM



AN OVERVIEW OF CLASS ACTIONS AND

COVID-19 IN ONTARIO’S LONG-TERM

CARE FACILITIES

Jordan Assaraf**

A. INTRODUCTION

The impact of COVID-19 on Canadians has been devastating in its reach

and its consequences. In their earliest pronouncements about the dan-

gers posed by the pandemic, federal and provincial public health ocials

identif‌ied seniors as being especially vulnerable to the coronavirus and

issued guidelines intended to protect the elderly. There was not, how-

ever, a corresponding recognition that residents in long-term care (LTC)

facilities constituted an especially vulnerable subset of the senior cit-

izen cohort and that residences were especially dangerous sites for viral

spread. Tragically, multiple outbreaks in LTC facilities during the f‌irst

three months of the pandemic — especially in Ontario and Quebec —

revealed that those homes were COVID-19 hotspots. Due to their age and

their inf‌irmity, LTC residents accounted for almost half of the deaths in

Ontario during the f‌irst three months of the pandemic.1

** Jordan was called to the bar in 2013, and soon assumed his current position of

associate lawyer at Gluckstein Lawyers. Jordan’s practice is devoted to all areas of

Personal Injury litigation on behalf of plaintif‌fs, including class action and mass tort

litigation, occupier’s liability claims, product liability claims, medical malpractice,

and motor vehicle accident claims.

1 Alex Ballingall & Rob Ferguson, “Risk of COVID-19 Is ‘Skyrocketing’ in Long-Term

Care Facilities. Advocates Say Governments Aren’t Doing Enough” Toronto Star (13

April 2020), online: www.thestar.com/politics/federal/2020/04/13/risk-of-covid-19-

is-skyrocketing-in-long-term-care-facilities-advocates-say-governments-arent-doing-

enough.html.

CCAR 16-2.indb 53CCAR 16-2.indb 53 2021-01-20 2:30:48 PM2021-01-20 2:30:48 PM