Superior Court certifies class action about long-term care home with multiple COVID-19 outbreaks

In a case alleging gross negligence in the operation of a licensed long-term care home during the COVID-19 pandemic, the Ontario Superior Court certified the plaintiffs’ class proceeding, designated them as representative plaintiffs, and appointed their lawyers as class counsel. 

In Estate of Brauch v. Maryban Holdings Ltd., 2026 ONSC 1616, the defendant owned and operated the care home. 

In their proposed class action, the plaintiffs alleged serious and preventable harm due to the defendant’s deficient, delayed, piecemeal, reactive, reckless, and arbitrary – rather than proactive and effective – response to the pandemic in the care home. 

The plaintiffs asserted that the defendant opted for such a response despite: 

• the knowledge of the long-term care sector and the medical community regarding the nature of COVID-19, its specific risks to the elderly, and the importance of the precautionary principle when tackling COVID-19 and other respiratory outbreaks 
• its recognition of its obligations to adhere to the proper guidance and best practices to avoid exposing the elderly to infection and death 

The plaintiffs contended that the defendant departed from the standard of care for infection prevention and control (IPAC) and the delivery of care to elderly and vulnerable residents.

According to the plaintiffs, due to the defendant’s conduct, the care home experienced at least three COVID-19 outbreaks from Dec. 21, 2020, to Mar. 30, 2023, resulting in at least 93 residents infected and at least 35 residents deceased due to COVID-19. 

The plaintiffs claimed that the care home could have prevented the outbreaks and saved lives if the defendant had abided by its common law obligations to the class members in the years before and during the pandemic. 

The plaintiffs added that the care home was susceptible to outbreaks due to long-running chronic deficiencies, including: 

• an outdated, neglected, overcrowded, and understaffed facility 
• insufficient IPAC training and protocols 
• systematic failures to inspect and oversee compliance with the relevant regulatory and industry standards 

The plaintiff sought to certify this action under s. 5(1) of Ontario’s Class Proceedings Act, 1992 (CPA). The defendant consented to certification. 

Class action certified

First, the Ontario Superior Court of Justice ruled that the claim advanced a reasonable cause of action for gross negligence that satisfied the requirement for a cause of action for certification under s. 5(1)(a) of the CPA. 

Second, the court found a workable, not unduly vague, and readily identifiable class that met the criteria for a certifiable class under s. 5(1)(b) of the CPA. The class included definitions of the following: 

• residents, the resident class, and resident class members 
• visitors, the visitor class, and visitor class members 
• the family class and family class members 

The class period was from Jan. 25, 2020, to May 5, 2023, when the Public Health Agency of Canada issued a statement reflecting the World Health Organization’s announcement that COVID-19 no longer amounted to a public health emergency of international concern. 

Third, the court held that the plaintiffs’ proposed common issues regarding gross negligence, causation, damages, and remedies satisfied the commonality requirement in s. 5(1)(c) of the CPA. These common issues included: 

• Did the defendant owe the class members a duty of care relating to COVID-19 outbreaks at the long-term care home? 
• Did the defendant’s breaches cause or contribute to any harms suffered or losses incurred by the class members? 
• Were the class members entitled to general damages based on gross negligence, the disgorgement of any benefits and profits the defendant had received, as well as aggravated, exemplary, and/or punitive damages? 

Fourth, the court considered a class action the preferred way to proceed because the plaintiffs’ action met the requirement in s. 5(1)(d) of the CPA. The court saw a good reason to favour a class action as a way to resolve the issues. 

The court explained that the alternative would be the class members’ or their estate representatives’ individual actions, which would be costly and cumbersome and would fail to fulfill a class action’s goals of access to justice and judicial economy.

Fifth, the court determined that the plaintiffs, who provided a workable litigation plan, satisfied the requirements for certification in s. 5(1)(e) of the CPA. The court found some factual basis to support that the representative plaintiffs: 

• could and would fairly and sufficiently represent the class interests 
• could instruct counsel on the class members’ behalf 
• had no interest in conflict with the class interests 

The court appointed the plaintiffs’ counsel, who were from Rochon Genova and Will Trial Lawyers, as class counsel.