Residence accused of gross negligence amid COVID-19 outbreak with over 70 deaths
The Ontario Court of Appeal has upheld the certification of the common issues in a class proceeding alleging systemic gross negligence against a long-term care residence that experienced a COVID-19 outbreak from Jan. 8, 2021 to Feb. 18, 2021.
At Roberta Place, 129 residents and 105 staff members tested positive for COVID-19, with 73 residents passing away, 71 of whom tested positive before their deaths. The residents who contracted COVID-19, the estates of those who died of COVID-19, and their families sought to bring a class proceeding.
The proposed class action asserted that those responsible for Roberta Place – the appellants in Head v. 859530 Ontario Inc., 2026 ONCA 231 – failed to properly plan for and respond to the COVID-19 pandemic and failed to properly implement institutional policies and procedures to prevent the mass spread of the virus.
Roberta Place accepted that it owed a duty of care to mitigate infectious outbreaks by following public health and infection prevention and control measures. In the event of certification, Roberta Place agreed to the following common issues: duty of care, standard of care, and whether the breaches constituted gross negligence.
The claimants also wanted to certify the issues of causation, aggregate damages, and punitive damages.
On Aug. 21, 2025, Justice Susan Healey of the Ontario Superior Court of Justice certified the action – including the common issues of causation and punitive damages – as a class proceeding under Ontario’s Class Proceedings Act, 1992 (CPA). The motion judge refused to certify aggregate damages.
The judge saw some factual basis to determine a common standard of care for members of the residents and estates classes. She also saw some factual basis to find a breach of the standard of care, amounting to gross negligence or a failure to abide by laws and guidelines on COVID-19.
The judge considered a class proceeding the preferable procedure under s. 5(1)(d) of the CPA because it would be superior to other reasonable options for determining the classes’ entitlement to relief.
On Nov. 27, 2025, the judge issued a cost order. Roberta Place appealed the certification of causation and punitive, exemplary, or aggravated damages as common issues, as well as the cost order.
The Court of Appeal for Ontario dismissed the appeal and denied leave to appeal costs. The appeal court fixed the all-inclusive appeal costs at $25,000, and the all-inclusive costs for the motion for leave to appeal the cost award at $10,000.
First, the appeal court upheld the motion judge’s certification of causation as a common issue.
The appeal court rejected the argument that the claimants in this case failed to establish a norm with which to compare Roberta Place’s infection rate, unlike in Levac v. James, 2023 ONCA 73.
The appeal court saw no error in the judge’s findings that there was no basis to distinguish this case from Levac, as the claimants here presented the same methodology, with some factual basis, as advanced in Levac.
The appeal court ruled that the judge properly resisted Roberta Place’s effort to turn the certification stage, which did not need definite proof of an available norm for comparison in the risk ratio analysis, into a merits determination.
Second, the appeal court affirmed the judge’s certification of punitive, exemplary, or aggravated damages as a common issue.
The appeal court rejected Roberta Place’s argument that its conduct was not malicious, reprehensible, or deliberate so as to warrant punitive damages. The appeal court explained that punitive damages could extend to gross negligence, depending on the facts.
The appeal court also disagreed with Roberta Place’s assertion that the judge failed to acknowledge that punitive, exemplary, or aggravated damages were ancillary to compensatory damages.
The appeal court saw no base against which to refer punitive, exemplary, or aggravated damages, as the judge did not certify compensatory damages, an issue that individual trials could address.
Third, the appeal court upheld the judge’s cost award for the certification motion. The appeal court held that the detailed costs award tackled the legal principles, including the obligation to consider the paying party’s reasonable expectations and the award’s size.
