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Huffpost asked Siskinds class action lawyer Daniel Bach how the proposed Bill 161 will effect potential litigation against long-term care homes, and what that means for those looking for justice.

Daniel also spoke to The Morning Show with Stafford & Supriya on Global News Radio to discuss the effect of Bill 161 on class actions. The interview can be heard here.

Emma Paling  ·  Huffpost  ·  Posted: Jun 17, 2020 4:05 PM ET

An Ontario bill will make it harder to launch class action lawsuits like the ones accusing nursing homes of negligence during the COVID-19 pandemic, lawyers and advocates say.

“If Bill 161 is law, our most vulnerable citizens, seniors in long-term care homes overrun with COVID, will not be able to use class actions to get justice,” Siskinds LLP lawyer Daniel Bach told MPPs at a Queen’s Park committee Thursday.

“If we can’t have class actions in these sorts of mass tragedies, only some of those people will be able to afford to do it individually.”

Class actions make a claim and seek damages on behalf of a group so that plaintiffs don’t have to hire lawyers and file lawsuits individually. One recently filed class action, alleging that negligence let COVID-19 spread rampantly at nursing homes owned by Revera Inc., has more than 1,000 plaintiffs.

Bill 161, the Ontario’s government’s omnibus Smarter and Stronger Justice Act, could go to a final vote in coming weeks. It’s a wide-ranging bill that makes changes to legal aid, civil proceedings, juries and who can perform marriages. The law would also add new certification tests for class action lawsuits. 

Plaintiffs will have to show that their common issues “predominate” their individual issues and that a class action is “superior” to other means of seeking justice.

“To be clear, this is not just about long-term care homes. This same predomination and superiority provisions will make cases about institutional abuse, like this country’s shameful history of residential schools or systemic racism and gender discrimination, harder to bring,” Bach said. 

He said that in the U.S., similar rules have stopped important class actions like one that alleged Walmart was systematically denying its female employees promotions and equal pay.

Both he and Jana Ray, chief membership officer for the Canadian Association of Retired Persons (CARP), told MPPs that those tests could keep future lawsuits against negligent long-term care homes out of court. 

The predominance test may be hard for plaintiffs in that type of lawsuit to pass, Ray said, because each alleged victim would have different health issues. But she said the class actions are needed because the “blanket issue” would be that the home didn’t have a plan to stop the novel coronavirus from spreading.

The superiority test could let corporations argue that plaintiffs should be given refunds or take complaints to a tribunal instead of suing en masse, Bach said.

“Like all these things, we’re going to have to see what the courts do with it. But the concern is the superiority requirement will let defendants design their own justice.”

For example, a corporation that injured patients with faulty pharmaceuticals could offer refunds and argue that’s a “superior” means justice than a ruling through a class action, Bach explained.

‘Adult orphanages’

Ray said it’s important for Ontarians to be able to bring class actions against nursing homes, especially if there is a second wave of COVID-19.

“I’ve been on tours of long-term care homes and I have to tell you, they range from not-so-bad, modern facilities run by a city, all the way to, honestly, an adult orphanage straight out of ‘Annie.’ It’s terrible,” she said. 

At some homes, residents live four to a room with very little space between them, she said. 

“How can you control the spread of infection when you have facilities like this?”

Attorney General Doug Downey declined HuffPost Canada’s interview request. 

Bill 161 will modernize Ontario’s justice system and let Ontarians resolve legal disputes more quickly, Downey’s spokesperson Jenessa Crognali told HuffPost in an email statement.

“These improvements will address issues that clog the system and slow down justice for everyone … The proposed changes would not preclude individuals from seeking redress from other remedial avenues, but rather, these changes would ensure that a class action is the most appropriate procedure to obtain that redress,” she said.

Crognali noted that many of the measures in Bill 161 came from recommendations made by the Law Commission of Ontario (LCO), an independent law reform agency.

But the LCO’s 2019 report on reforming Ontario’s class action system specifically says there is no reason to adopt something like the United States’ Rule 23, which includes predominance and superiority provisions. 

However, two stakeholders did recommend during the LCO’s consultations that Rule 23 be brought to Ontario: the Canadian Bankers Association and the Canadian Life and Health Insurance Association.

The two associations said in a joint submission that the current certification test is too lax and allows cases to move forward, even if they aren’t well suited to class proceedings.

Premier Doug Ford suggested Tuesday that his government might do more to protect health-care providers and other organizations from lawsuits related to COVID-19. His cabinet will discuss some type of civil immunity this week, Ford said. 

At least 10 class actions have already been filed against Canadian long-term care providers since the COVID-19 pandemic began.

One executive of a private long-term care company recently lost her job after she was reportedly overhead complaining about “blood-sucking” class action lawsuits.

Eighty-two per cent of the people killed by the disease in Canada have lived in long-term care, according to research by the International Long Term Care Policy Network

Four times more people have died in privately-run homes than those run by municipalities, the Toronto Star reports. There have also been a disproportionate number of deaths in homes that were never upgraded to 1998 safety standards, which limited homes to a maximum of two residents per room, according to CBC News. 

$30-million lawsuit

In a $30-million class action against Southbridge Care Homes, plaintiffs allege the company failed to isolate residents properly and to provide staff with personal protective equipment (PPE) to stop the spread of COVID-19 at its Pickering, Ont. home, Orchard Villa. The home sent automated voice messages to residents’ families assuring them that everything was under control without mentioning that people there were dying of COVID-19, the lawsuit claims.

Seventy-eight people have died with COVID-19 at Orchard Villa as of midday Wednesday, according to Durham Region data.

Lawyer Gary Will of Will Davidson LLP, who represents the families at Orchard Villa, said the lawsuit will soon be amended also to name Extendicare, a separate company that manages the home, as another defendant. 

The conditions in the home were “totally unacceptable,” Will told HuffPost. 

He said everyone who reads it is shocked by the Canadian Armed Forces report, which said soldiers at Orchard Villa found staff was not using PPE properly and the home was infested with flies and cockroaches, among other problems. 

“As a society, we just can’t tolerate that,” Will said. “These individuals are very vulnerable. Many of them have severe physical difficulties; they are totally reliant on the care that’s provided to them in the home; many of them have issues of dementia and they can’t advocate for themselves.”

“They are totally reliant on the owners of these facilities to provide proper care. And that was breached in a fundamental way and can’t be allowed to continue.”

His firm has been in touch with about 30 families. He said it’s “very important” for them to be able to participate in a class action lawsuit. 

“What these people most want is … answers about what happened and what’s going to happen in the future. They don’t want to see another family have to go through this again.”

Both Ray and Bach said this law would benefit companies like Sienna Senior Living.

Sienna recently cut ties with an executive after she was caught allegedly mocking residents of one of the company’s long-term care homes and complaining about “blood sucking” lawsuits.

Ray said the government is too focused on saving the justice system time and money. 

“We’re talking about it as saving the justice system … we’re not talking about making sure people actually get justice.”