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BRIEFING NOTE: COVID-19 in Long-Term Care Litigation & Legal Actions

Posted: September 16, 2020

(September 16, 2020)

Click here for printable version of the briefing note found below.

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There have been at least two dozen legal actions as a result of the conditions in long-term care and the responses to the spread of the virus, exposed during the first wave of the COVID-19 pandemic in Ontario, including filing of class action suits, an injunction, a request for criminal investigation, and the filing of several statements of claim. The following is a summary of the cases that we have been able to find. Please note: descriptions of the cases are based on court filings, media releases and media reports. Details and updates should be checked with the law firms in question directly.

Ontario Nurses’ Association v. Rykka & Primacare

In April, the Ontario Nurses’ Association (ONA) filed for an injunction in the Superior Court of Ontario against three Rykka homes: Eatonville Care Centre, Anson Place, Hawthorne Place. They alleged that the Rykka-operated homes did not follow a mandatory order issued by Ontario’s chief medical officer of health stating that long-term-care homes must use staff and resident “cohorting to prevent the spread of COVID-19.” The request for an injunction was also filed against Henley Place, operated by Primacare Living Solutions, located in London, Ont. On Thursday April 23, the Superior Ontario Court issued a ruling, ordered the operators of the homes to provide nurses with access to PPE (including N95 masks) in accordance with their clinical judgement and their point of care assessments and ordered the homes to follow directives regarding cohorting and isolation of COVID-positive residents and staff to immediately rectify the safety concerns.

Class Action against Revera Inc.

In April, Toronto-based law firm, Diamond and Diamond Lawyers, filed an application for a $50 million class-action lawsuit on behalf of Peter Masucci and Tonino Ricci, against Revera Inc. over the company’s response to the pandemic. “The plaintiffs allege that the facilities lacked proper sanitation protocols as well as adequate testing,” according to their press release. The class action has been filed on behalf of all persons who have lived, or are currently living, at one of the Revera retirement living residences in Ontario. The time period referenced within the suit is January 1, 2020 to “the end of the pandemic”, a date which is currently unknown at this time. The class also includes the families of these individuals who may seek appropriate damages. None of the allegations have been proven in court. A statement of defence has yet to be filed.

Class Action against Chartwell

Neinstein Personal Injury Lawyers, announced the filing of a class action lawsuit in May against Chartwell Retirement Residences and Long Term Care Homes for their alleged failures in outbreak planning, precautions and response relating to COVID-19 resulting in preventable resident deaths and unnecessary suffering for their family members, according to their press release. The lawsuit is filed on behalf of Albino Pugliese, who lost his mother Teresa Pugliese who died after contracting COVID-19 in a Chartwell home; they are represented by lawyer Rose Leto. The proposed class action is brought on behalf of all persons who live or lived at a Chartwell Home from January 10, 2020 to the end of the pandemic date, which is currently unknown. The proposed class members also include the family members of those residents.

Class Action against Responsive Group & Subsidiaries (inclu. Rykka)

Mike McCarroll is the lead plaintiff in a proposed class-action lawsuit filed against Responsive Group Inc. and its subsidiaries. Rose Annie McCarroll, the plaintiff’s mother, died of COVID-19 related complications on March 30. Responsive Group Inc., owns three long-term care homes in Toronto named in the suit (Eatonville Care Centre, Vermont Square, and Hawthorne Place Care Centre) along with Cooksville Care Centre in Mississauga, Anson Place Care Centre in Hagersville, and Earls Court Village in London. According to Responsive Group’s website they own 14 long-term care homes and 18 retirement communities in Ontario, including more than 2,300 long-term care beds. Responsive Group also reports it is the operating partner of Rykka Care Centres which currently includes nine long-term care homes. Rykka manages Anson Place, Eatonville, Hawthorne Place, and Cooksville Care Centres. The lawsuit was filed Friday May 1 in the Ontario Superior Court of Justice by lawyer Pinta Maguire from the law firm Tyr LLP. The lawsuit has not yet been certified as a class action, and its allegations have not been tested in court. They are seeking $15 million in punitive damages.

Class Action against Revera and Sienna

In a statement of claim, six representative plaintiffs, including Tracey Rowley, Melody Germain, Sally Acker, Scia Shortliffe, and Angele Mansfield, represented by law firm Diamond and Diamond, are seeking $100 million in damages for negligence and breach of contract against Revera Inc. and its subsidiaries and Sienna Senior Living. This is an expanded lawsuit that now includes Sienna in addition to Revera and its subsidiaries. “We expect there to be hundreds more Plaintiffs to be added,” said Darryl Singer, Head of Commercial and Civil litigation at Diamond and Diamond Lawyers. The class action is brought forth on behalf of all persons who have lived, or are currently living, at one of the Revera Retirement Living or Sienna Senior Living residences in Canada. The class also includes the families of these individuals who may seek appropriate damages. The estimated size of the class is upwards of 1000 Plaintiffs.[1]

Lawsuit against Orchard Villa

On May 11, Southbridge Care Homes’ Orchard Villa, had a $1.5 million lawsuit against them filed by Howie, Sacks and Henry LLP[2] on behalf of family of former resident Paul Parkes who died April 15. There are 39 allegations, including that Parkes died from negligence.[3] [4]

Lawsuit against Orchard Villa

A lawsuit was filed on Friday May 15 against Southbridge Care Homes’ Orchard Villa, claiming $1 million in damages, by lawyer Melissa Miller from Howie, Sacks and Henry LLP. In the 10-page statement of claim, obtained by CTV News Toronto, June Morrison, the daughter of former resident George Morrison, alleged that his death occurred as a “direct result” of negligence and breach of contract. The claim made a series of allegations, including that the Pickering, Ont. home failed to follow proper procedures to protect residents, failed to properly care for George Morrison and failed to communicate with his family about his condition. [5] [6] This is the second lawsuit by Howie, Sacks and Henry against Orchard Villa.

Lawsuit against Orchard Villa

A class-action lawsuit filed at the Ontario Superior Court on Tuesday May 26 by Will Davidson LLP against Southbridge Care Homes and its 308-bed Orchard Villa long-term care and retirement home, alleged that the facility’s actions were “callous and arrogant” and its negligence led to its mass and deadly COVID-19 outbreak. It was on behalf of all residents and family members of Orchard Villa, and the class-action’s representative plaintiff Sylvia Lyon, whose 80-year-old mother died of COVID-19 at the home. They claim negligence, breach of contract and wrongful death.[7] [8]

Sylvia is represented by Gary R. Will and Gordon A. Marsden of Will Davidson LLP, and seeks $30 million in compensatory damages, $10 million in punitive damages, the costs of insured health services provided by the Ontario Health Insurance Plan, pre- and post-judgment interest, costs and other relief the court deems just. The Orchard Villa Class Action Lawsuit is Sylvia Lyon v. CVH (No. 6) LP, et al., Case No. CV-20-00001409-00CP, in the Ontario Superior Court of Justice, Canada. [9] Will Davidson LLP have filed at least 4 separate legal challenges against long-term care homes in response to the COVID-19 pandemic.

Lawsuit against Lundy Manor

Toronto law firm Will Davidson LLP filed a statement of claim against Lundy Manor, Niagara Falls (run by Oxford Living) on May 6. At least 10 families in class-action lawsuit. The claim included $10 million in compensatory damages for negligence, breach of contract, and wrongful death and $10 million in punitive and exemplary or aggravated damages. They accused Lundy Manor officials of failing to implement social distancing protocols in a timely manner. The class action lawsuit included everyone who has contracted COVID-19 at Lundy Manor or became ill after coming into contact with someone who caught the virus at the facility. The families are represented by lawyers Gary Will and Gordon Marsden. [10] [11] [12] This law firm has filed at least three legal challenges against other long-term care homes in addition to this one.

Lawsuit against Altamont Care Community

A $20 million class action lawsuit was issued by Stephen Birman and Lucy Jackson of law firm Thomson Rogers against Sienna Senior Living Inc., which owns Altamont Care Community, on Monday June 1 on behalf of residents of the Toronto long-term care home and their families. During the COVID-19outbreak, the lawyers alleged that the home “failed to implement screening measures of its staff and basic social distancing practices, including the separation of infected and non-infected residents following Ontario’s declaration of a state of emergency on March 17.” Birman and Jackson are now collecting information for their case and intend to pursue certifying the lawsuit as a class action.[13] [14]

Lawsuit against Ontario Government

Court documents filed in Ontario’s Superior Court of Justice on Monday June 29 accused Premier Doug Ford’s government of discriminating against seniors’ homes and being “willfully blind” to the risks the highly infectious virus posed to senior citizens whose care is entrusted into care homes. Toronto law firm Koskie Minsky filed the lawsuit on behalf of proposed lead plaintiff Doreen Nisbet, an 89-year-old former resident of Orchard Villa who contracted the virus while living in the home in Pickering, Ont. The lawsuit alleged that the province’s failures in overseeing nursing homes have resulted in “widespread and avoidable illness, suffering and loss of life” and also alleged the province breached the Canadian Charter of Rights and Freedoms.[15] [16] [17] Lawyer Kirk Baert is involved in the lawsuit, which is asking for $500-million plus punitive damages.

The province filed their defence Monday August 31, saying it should not be held legally or financially responsible because there is no long-term care “system” it controls, and because it does not “act as a guarantor of [long-term care] residents’ health or safety.” It said that licensed operators, some for-profit, others run by municipalities or non-profits, are responsible for ensuring homes are safe and secure for residents.[18]

Lawsuit against Sienna Senior Living Inc.

A $15 million class-action lawsuit on behalf of residents and their families issued on Monday June 15 against Sienna Senior Living Inc alleged that an Ontario nursing home, Woodbridge Vista Care Community in Vaughan, Ontario, failed to protect residents during the COVID-19 pandemic, claiming that “inadequate preventative and responsive measures” led to staff shortages, neglect and contributed to the mass spread of the disease. This is the second class-action issued by the law firm Thomas Rogers against Sienna Senior Living Inc.[19]

Lawsuit against Sienna Senior Living Inc., City of Toronto & Provincial Government

A class-action lawsuit was launched by Rochon Genova LLP, Himelfarb Proszanski, and Cerise Latibeaudiere Law Professional Corporation on behalf of residents at 96 long-term care homes and their families, who are seeking damages over alleged negligence, breaches of fiduciary duty and charter rights to life, liberty and security of person. It is uncertified as of July 30 2020. Sienna Senior Living Inc. and the City of Toronto are named as proposed representative defendants. The government of Ontario will be added as a defendant once the 60-day notice period expires. There are 9 proposed representative plaintiffs, including Innis Ingram, and are represented by lawyers Joel Rochon and Golnaz Nayerahmadi. The full list of LTC homes included in the claim can be found on Rochon Genova’s website. They are seeking $500 million in general damages, and an additional $100 million in punitive damages.[20]

Charter Challenge and Lawsuit against Ontario Government

The Justice Centre for Constitutional Freedoms announced on July 17 that it would file a Charter challenge against the Ontario government and various Long-Term Care Homes (LTCH) for their infringement of residents’ Charter rights to life, liberty and security of the person. The Justice Centre served a legal demand letter on Premier Doug Ford, the Chief Medical Officer of Health Dr. David Williams and the Minister of Long-Term Care Dr. Merrilee Fullerton, outlining the concerns of their clients and a proposal to avoid litigation. The government did not respond. [21] [22]  On August 25, a potential lawsuit against the government of Ontario was filed on behalf of Mafalda Maione and Barbara Mills, both elderly residents of long-term care homes, and their daughters who are their caregivers. Lawyer Lisa Bildy said that “The Ford government is violating our clients’ Charter rights. They are causing more harm than good by confining them in their rooms and keeping them from their loved ones.”[23] [24]

Lawsuit against Weston Terrace Care Community

The law firm Thomson Rogers has issued at least 4 separate class-action lawsuits against long-term care homes. On June 16, they issued a lawsuit on behalf of Jocelyn and Tara Barrows, the representative plaintiffs, for Tara’s late grandmother Dorritt Paul against Weston Terrace Care Community, which is owned by Sienna Senior Living Inc. The lawsuit alleged Sienna Senior Living failed to implement screening measures of its staff and basic social distancing practices. It also claimed, since the outbreak, there was severe understaffing at Weston Terrace and a failure to provide the basic care to the residents, resulting in neglect, illness and death. They are asking for $15 million in damages.

Toronto.com reached out to Sienna Senior Living Inc. for comment and received the following statement: “We are aware of the proposed class action. We intend to respond in due course through the appropriate court processes,” company spokesperson Swaraj Mann said in a July 27 email.[25] [26]

Lawsuit against Altamont Care Community

The second lawsuit by the law firm Thomson Rogers is a class-action lawsuit that was issued Monday June 1 on behalf of all residents of Altamont Care Community, owned by Sienna Senior Living Inc., and their families. Two of the lead plaintiffs are Vasuki Uttamalingan and Pahirathan Pooranalingam, who are claiming $20 million in total. They are represented by lawyers Stephen Birman and Lucy Jackson. [27] [28]

Class-action against Woodbridge Vista Care Community

The third lawsuit by the law firm Thomson Rogers is a class-action that was issued Monday June 15 for plaintiffs Lucia Fracassi (for her mother Carmela Colalillo, who died May 25), and John Bilottais (for his mother Carmela Bilotta) on behalf of residents and their families of Woodbridge Vista Care Community, owned by Sienna Senior Living Inc. They are claiming $15 million in damages. [29] [30]

Lawsuit against Carlingview Manor

The fourth lawsuit by the law firm Thomson Rogers was issued Wednesday August 12 for plaintiff Stephen Hannon, whose father died in May, against Carlingview Manor, in Ottawa. The lawsuit, claiming $25 million, alleged Carlingview Manor failed to upgrade its facilities to align with updated 1998 guidelines for care homes mandating a maximum of two residents per bedroom. A June 10 directive from Ontario’s chief medical officer of health also put a temporary prohibition on long-term care homes placing newly admitted residents in three- or four-bed rooms. The suit claimed these conditions “caused and/or contributed to the mass spread of COVID-19 at the home.” Lawyer Stephen Birman is involved. [31] [32]

Lawsuit against Erin Mills Lodge

The third lawsuit from Will Davidson LLP is on behalf of Viet Do (for his father Minh Do, who died April 24) against Erin Mills Lodge, owned by Schlegel Villages. They are claiming $20 million for negligence and wrongful death, and alleging the company failed to keep residents and staff safe during the COVID-19 pandemic. It was filed in Ontario Superior Court by August 5, and it is unclear if a statement of defence has been filed. The lawsuit also claimed that Schlegel Villages failed to comply with the provincial directives to provide staff with personal protective equipment and to isolate infected individuals.[33] [34]

Statement of Claim against Erin Meadows

The fourth legal challenge from Will Davidson LLP is on behalf of Rossana Carnevale and her mother Giuseppina Carnevale, who was a resident of Erin Meadows before her death in April. Gary Will is lead counsel for the plaintiffs, who are claiming $20 million in the June 25 statement of claim. Gary Will said in an interview on Thursday June 25 that Schlegel Villages has not been served with the statement of claim yet, and that he intends to move the lawsuit as a class action if it proceeds.[35]

Legal Claim against Lundy Manor

Howie, Sacks and Henry LLP state on their website as of September 16 that they are bringing a claim against Lundy Manor Retirement Residence (in Niagara), owned by Oxford Living. No other details can be found.

 

[1] NetNewsLedger. $100 Million Class Action Law Suit Launched Over COVID-19 Long-Term Care Homes. May 25 2020. http://www.netnewsledger.com/2020/05/25/100-million-class-action-law-suit-launched-over-covid-19-long-term-care-homes/

[2] COVID-19 Related Deaths in Long-Term Care & Retirement Homes in Ontario. Howie, Sacks and Henry LLP. https://www.hshlawyers.com/expertise/nursing-home-negligence/covid-19-nursing-home-deaths-ontario/

[3] Katawazi, Mirium. Family files $1.5M lawsuit against Ontario’s worst-hit long-term care home for alleged neglect. Toronto CTV News. May 11 2020. https://toronto.ctvnews.ca/family-files-1-5m-lawsuit-against-ontario-s-worst-hit-long-term-care-home-for-alleged-neglect-1.4934931

[4] Bucher, Anne. Southbridge Care Homes Facing Multiple Nursing Home Neglect Lawsuits. Top Class Actions LLC.May 20 2020. https://ca.topclassactions.com/lawsuit-settlements/coronavirus-covid-19/southbridge-care-homes-facing-multiple-nursing-home-neglect-lawsuits/

[5] Katawazi, Mirium. Another million-dollar lawsuit filed against Ontario’s worst-hit nursing home for alleged neglect. Toronto CTV News. May 15 2020. https://toronto.ctvnews.ca/another-million-dollar-lawsuit-filed-against-ontario-s-worst-hit-nursing-home-for-alleged-neglect-1.4942292

[6] Bucher, Anne. Southbridge Care Homes Facing Multiple Nursing Home Neglect Lawsuits. Top Class Actions LLC. May 20 2020. https://ca.topclassactions.com/lawsuit-settlements/coronavirus-covid-19/southbridge-care-homes-facing-multiple-nursing-home-neglect-lawsuits/

[7] Katawazi, Mirium. $40M class-action lawsuit alleges Ontario long-term care home did not follow provincial COVID-19 orders. CP24. May 26 2020. https://www.cp24.com/news/40m-class-action-lawsuit-alleges-ontario-long-term-care-home-did-not-follow-provincial-covid-19-orders-1.4955784

[8] Follert, Jillian. Timeline: How the deadly COVID-19 outbreak at Orchard Villa unfolded. DurhamRegion.com. June 11 2020. https://www.durhamregion.com/news-story/10000869-timeline-how-the-deadly-covid-19-outbreak-at-orchard-villa-unfolded/

[9] Bucher. Anne. Orchard Villa Facing Class Action Lawsuit After Residents Die of COVID-19. Top Class Actions LLC. June 1 2020. https://ca.topclassactions.com/covid-19-coronavirus/orchard-villa-facing-class-action-lawsuit-after-residents-die-of-covid-19/

[10] Knox, Shelby. Statement of Claim Filed in Lundy Manor Class Action Lawsuit. NewsTalk610 CKTB. May 6 2020. https://www.iheartradio.ca/610cktb/news/statement-of-claim-filed-in-lundy-manor-class-action-lawsuit-1.12344736

[11] Drevfjall, Ludvig. Relatives preparing to launch class-action lawsuit against Lundy Manor. ThoroldNews.com. April 30 2020. https://www.thoroldnews.com/coronavirus-covid-19-local-news/relatives-preparing-to-launch-class-action-lawsuit-against-lundy-manor-2315050

[12] Class Action lawsuit against Lundy Manor related to COVID-19 deaths. https://www.scribd.com/document/460224420/Class-Action-lawsuit-against-Lundy-Manor-related-to-COVID-19-deaths#from_embed

[13] Goodfield, Kayla. $20M class-action lawsuit filed against Scarborough long-term care home that was part of military report. CP24. June 1 2020. https://www.cp24.com/news/20m-class-action-lawsuit-filed-against-scarborough-long-term-care-home-that-was-part-of-military-report-1.4964609

[14] Troops could be called to testify in lawsuits against long-term care homes. LethbridgeNewsNow. June 7 2020. https://lethbridgenewsnow.com/2020/06/07/troops-could-be-called-to-testify-in-lawsuits-against-long-term-care-homes/

[15] Howlette, Karen. Lawsuit alleges Ontario government failed to protect long-term care residents from COVID-19 pandemic. The Globe and Mail. June 29 2020. https://www.theglobeandmail.com/canada/article-lawsuit-alleges-ontario-government-failed-to-protect-long-term-care/

[16] Goldfinger, Daina. Class action to be launched against Ontario alleging negligence in long-term care oversight. Global News. June 11 2020. https://globalnews.ca/news/7049819/ontario-class-action-long-term-care/

[17] Ontario Long Term Care Home Negligence Class Action. Koskie Minsky LLP. June 25 2020. https://kmlaw.ca/cases/ontario-long-term-care-home-negligence-class-action/

[18] Fine, Sean. Ontario government does not guarantee the health or safety of residents in long-term care homes, legal document says. The Globe and Mail. August 31 2020. https://www.theglobeandmail.com/canada/article-ontario-government-does-not-guarantee-the-health-or-safety-of/

[19] DeClerq, Katherine. Staff shortages, inadequate procedures led to spread of COVID-19 at Ontario nursing home, $15M lawsuit alleges. Toronto CTV News. June 15 2020. https://toronto.ctvnews.ca/staff-shortages-inadequate-procedures-led-to-spread-of-covid-19-at-ontario-nursing-home-15m-lawsuit-alleges-1.4985307

[20] Class Action Launched on Behalf of Residents of 96 Ontario Long-Term Care Homes. ROCHON GENOVA LLP. July 29 2020. https://www.rochongenova.com/Current-Class-Action-Cases/Long-Term-Care-Covid-19.shtml

[21] Family members to launch lawsuit against Ford government for violating seniors’ Charter rights. The Justice Centre for Constitutional Freedoms. July 17 2020. https://www.jccf.ca/family-members-to-launch-lawsuit-against-ford-government-for-violating-seniors-charter-rights/

[22] https://www.jccf.ca/wp-content/uploads/2020/08/2020-07-17-Letter-to-Ontario-Government-re-LTC-final_Redacted.pdf

[23] Ford government sued after months of lockdown of seniors in long-term care. The Justice Centre for Constitutional Freedoms.August 25 2020. https://www.jccf.ca/ford-government-sued-after-months-of-lockdown-of-seniors-in-long-term-care/

[24] https://www.jccf.ca/wp-content/uploads/2020/08/Urgent-Notice-of-Application-for-Judicial-Review-Maione-v.-Ontario_Redacted.pdf

[25] Lavoie, Joanna. ‘Trust was broken’: Family files class action against Weston Terrace in Toronto. Toronto.com. July 30 2020. https://www.thestar.com/news/gta/2020/07/30/trust-was-broken-family-files-class-action-against-weston-terrace-in-toronto.html

[26] Weston Terrace Care Community Class Action. Thomson Rogers. July 16 2020. https://www.thomsonrogers.com/news/weston-terrace-care-community-class-action/

[27] Goodfiled, Kayla. $20M class-action lawsuit filed against Scarborough long-term care home that was part of military report. CP24.com. June 1 2020.  https://www.cp24.com/news/20m-class-action-lawsuit-filed-against-scarborough-long-term-care-home-that-was-part-of-military-report-1.4964609

[28] Troops could be called to testify in lawsuits against long-term care homes. Lethbridge News Now. June 7 2020. https://lethbridgenewsnow.com/2020/06/07/troops-could-be-called-to-testify-in-lawsuits-against-long-term-care-homes/

[29] Class Action Commenced Against Woodbridge Vista Care Community. Thomson Rogers. June 15 2020. https://www.thomsonrogers.com/news/class-action-commenced-against-woodbridge-vista-care-community/

[30] DeClerq, Katherine. Staff shortages, inadequate procedures led to spread of COVID-19 at Ontario nursing home, $15M lawsuit alleges. Toronto CTV News. June 15 2020. https://toronto.ctvnews.ca/staff-shortages-inadequate-procedures-led-to-spread-of-covid-19-at-ontario-nursing-home-15m-lawsuit-alleges-1.4985307

[31] Investigation Into Carlingview Manor Long Term Care Home COVID-19 Outbreak. Thomson Rogers. June 10 2020. https://www.thomsonrogers.com/news/investigation-into-carlingview-manor-long-term-care-home-covid-19-outbreak/

[32] Lord, Craig. Ottawa’s Carlingview Manor long-term care home targeted in $25M class-action lawsuit. Global News. August 12 2020. https://globalnews.ca/news/7269964/ottawa-carlingview-manor-class-action/

[33] Stevenson, Jane. COVID-related death triggers lawsuit against long-term care operator. The Sudbury Star. August 5 2020. https://www.thesudburystar.com/news/local-news/covid-related-death-triggers-lawsuit-against-long-term-care-operator/wcm/b1bc1834-1684-40f7-82fc-98c1113f4b9e

[34] Cornwell, Steve. Another $20M wrongful death lawsuit filed against Mississauga long-term-care home operator. Mississauga News. August 11 2020. https://www.thestar.com/news/gta/2020/08/11/another-20m-wrongful-death-lawsuit-filed-against-mississauga-long-term-care-home-operator.html

[35] Cornwell, Steve. Wrongful death suit filed against Mississauga long-term-care facility. Mississauga News. June 27 2020. https://www.mississauga.com/news-story/10053037-wrongful-death-suit-filed-against-mississauga-long-term-care-facility/

 

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