Unchartered Grounds: Covid-19 and Class Actions

• Author: Spencer Nestico-Semianiw
• Position: Is a 2021 graduate of the University of Toronto Faculty of Law
• Pages: 91-125

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Unchartered Grounds: COVID-19 and Class Actions

Spencer Nestico-Semianiw

: For nearly two years, the COVID-19 pandemic has brought

unprecedented disruption to those living in Canada and around the

world. To curb its spread and mitigate its impacts, all levels of government

have taken drastic measures to limit movement and social gathering. This

has prompted plaintif‌fs to launch class proceedings alleging unjustif‌iable

violations of Charter rights and to claim awards in damages. This paper

examines whether these proceedings are likely to be successful, and ultim-

ately determines that they will not. This paper then argues that the status

quo which supports this result is defensible and just.

To estimate their likelihood of success, it f‌irst surveys the history

of Charter class actions in Canada and then considers several that have

emerged from the COVID-19 context. It then reviews the certif‌ication test,

particularly the cause of action, common issues, and preferable procedure

stages, and f‌inds that it is reasonable to expect courts to certify at least

some of these class actions.

However, since these proceedings will likely be denied damages, this

would in turn reduce the likelihood of future certif‌ication at the prefer-

able procedure stage. Specif‌ically, the Supreme Court of Canada outlined

in Vancouver (City) v Ward that courts may refrain from granting damage

awards where they would frustrate good governance. This is the main

barrier to COVID-19 class actions, as liability in damages would dissuade

governments from acting in the best interests of Canadians.

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UNCHARTERED GROUNDS: COVID-19

AND CLASS ACTIONS

Spencer Nestico-Semianiw*

A. INTRODUCTION

The COVID-19 pandemic continues to pose signif‌icant challenges to pub-

lic health. With more than 400 million infections and 5.9 million deaths,1

it has overwhelmed health systems and placed healthcare professionals

under enormous strain. States have responded by taking various measures

to control the virus, attempting to curb its spread through the use of travel

restrictions, enforced social distancing, and limited religious gatherings.2

While these strategies have led to varied success, there is little doubt that

the pandemic will endure in some respect for the foreseeable future.

In Canada, the situation is no dif‌ferent. Both the federal and provin-

cial governments have taken unprecedented steps to mitigate the ef‌fects of

the virus, leading to a decidedly (and perhaps inevitably) mixed response.

While governments initially received praise for their swift and decisive

* Spencer Nestico-Semianiw is a 2021 graduate of the University of Toronto Faculty of

Law. His favourite memories include working at the International Criminal Court

during his 1L summer and participating in the Jessup International Law Moot dur-

ing his 2L year. He plans to complete his articling requirement by June 2022, and he

continues to foster his interest in class proceedings. Spencer received his Bachelor

of Arts & Science from McMaster University, after which he interned in the legal

department of a f‌inancial services company. He would like to extend a sincere thank

you to Michael Rosenberg, one of his teachers in Class Actions Law and Practice, for

his invaluable support during the writing and editing of this paper.

1 Johns Hopkins University & Medicine, COVID-19 Dashboard by the Center for Systems

Science and Engineering (accessed 25 February 2022), online: https://coronavirus.jhu.

edu/map.html.

2 International Monetary Fund, Policy Responses to COVID-19, online: www.imf.org/

en/Topics/imf-and-COVID19/Policy-Responses-to-COVID-19.