Lawsuit alleges gross negligence in outbreaks linked to at least 1,966 infections and 244 deaths
The Ontario Superior Court of Justice has certified a class action against GEM Healthcare Group Limited and Downsview Long-Term Care Centre Limited over allegations of gross negligence in their response to COVID-19 outbreaks at Downsview Long-Term Care Centre.
In Graham v. GEM Healthcare Group Limited, 2026 ONSC 6036, the court granted certification with the defendants' consent. The plaintiffs allege that the defendants' gross negligence contributed to numerous COVID-19 outbreaks between January 25, 2020, and May 5, 2023, resulting in at least 1,966 residents contracting the virus and at least 244 dying from COVID-19.
The plaintiffs represent individuals who allegedly suffered serious and preventable harm because of the defendants' delayed, ad hoc and inadequate response to the pandemic.
The certified proceeding includes three classes. The resident class covers individuals who contracted COVID-19 while residing at or receiving care at Downsview during the class period. The visitor class includes visitors who contracted COVID-19 during that period. Both classes include estates of deceased individuals.
The family class covers individuals with derivative damages claims under s. 61 of Ontario's Family Law Act, including spouses, children, parents and other relatives of resident or visitor class members.
The plaintiffs allege that longstanding deficiencies made the facility vulnerable to outbreaks. These included overcrowding, inadequate staffing, insufficient infection prevention and control training and protocols, and failures to oversee compliance with regulatory, legal and industry standards.
They further allege that the defendants adopted reactive and delayed infection control measures that failed to reflect existing knowledge about COVID-19 and its risks to elderly residents.
The Superior Court found some basis in fact to support these allegations for certification purposes, including the claims that the outbreaks were preventable and that lives would have been saved had the defendants not breached their common law obligations.
The court noted that the pleaded gross negligence claim followed the cause of action recognized in Pugliese v. Chartwell, 2024 ONSC 1135, which also addressed COVID-19 claims against long-term care homes.
The certified common issues include whether the defendants owed class members a duty of care, breached the applicable standard of care, and engaged in gross negligence. They also address causation, damages, disgorgement of benefits and profits, and potential aggregate damages assessments.
The court found that a class proceeding was preferable given the number of class members, the need for expert evidence and the economics of pursuing individual claims.
It concluded that the requirements under s. 5(1) of the Class Proceedings Act were satisfied and certified the action.
