Long-Term Care Law Newsletter: Summer, 2018

Class Actions in the Long-term Care Sector

Earlier this year, class-action lawsuits were launched against two separate long-term care organizations in Ontario. These actions allege that residents at these facilities suffered from “systemic negligence”. Following a number of recent incidents in Nova Scotia, there are now concerns that a similar class action involving long-term care facilities might be launched here.  This newsletter will set out some background to class-action lawsuits.

What is a Class Action?

A class-action lawsuit is a civil suit where an individual or a small group of plaintiffs (the “Representative Plaintiffs”) bring an action against a defendant or a group of defendants (the “Defendants”) on behalf of a much larger group of individuals (the “Class”). The purpose of the combined action is to avoid the time and expense of separate individual lawsuits.  In a class action, the Representative Plaintiffs and the members of the Class must have suffered a similar cause of action or loss.

If the class action is successful at trial or there is a settlement, all members of the Class share in the damage award or settlement.

A class-action lawsuit is generally a slow-moving process. Once a class action is filed, the action must be certified by a court.  Section 7 of the Class Proceedings Act, RSNS 2007, c. 28, sets out five factors that must be satisfied in order for a class action to be certified.  These factors are:

  1. The documents filed with the court (the “pleadings”) disclose a cause of action;
  2. There is an identifiable class of two or more people who have suffered a similar loss;
  3. The claims of the class raise a common issue;
  4. A class-action would be the preferable procedure for the fair and efficient resolution of the dispute; and
  5. There is a representative party who can fairly and adequately represent the interests of the class.

The certification process is largely procedural; the facts of the case are not determined at this point. The question at the certification stage is not whether the claim will succeed, but rather whether the claim should proceed as a class proceeding. Canadian courts, including the Supreme Court of Canada, have set a relatively low bar that a class action has to meet in order to be certified.

During a certification hearing, a key issue is whether there is a common issue between all members of the Class. It is not required that the Class members have identical claims against the Defendants. Instead, the Class members’ claims or the loss they incurred must share a ‘substantial common ingredient’ to justify a class action.

If the Court certifies the class action, the Court will then determine the scope of the class action. Specifically, the Court will certify the common issues that must link each member of the Class.  Typically, the narrower the scope of the action, the smaller the Class.

It is only after a class action is certified that there is argument on the merits of the actual claims of the Representative Plaintiffs. If the action is not certified, then each member of the Class must file a separate action and prove their claim individually.

Class-Action Suits in the Long-Term Care Sector

In early 2018, two separate class-action lawsuits were filed in Ontario, one against Extendicare Inc. and the other against Leisure World (now Sienna Senior Living). The plaintiffs in these matters claim that the defendants provided substandard care to the residents in their respective facilities.

In the claim against Sienna Senior Living, the representative plaintiff alleges that the company was “systemically negligent” in caring for his father, Jose Novo.  Mr. Novo suffered bedsores so deep that the bone was exposed.  In the claim against Extendicare Inc., the representative plaintiff claims that her mother suffered an infected leg wound that became infested with fly maggots. Both actions seek general damages of $50 million and aggravated and punitive damages of $100 million.

A third legal action in Ontario against Revera Long Term Care Inc. is pending.  The monetary claim in this case has not been disclosed.

None of the above class actions have been certified yet.

Class Actions in Nova Scotia

There have been several recent incidents at long-term care facilities in Nova Scotia where allegations of negligence have been raised. These incidents have increased concern that a class-action lawsuit may be launched against long-term care facilities within the coming year in this province.

In order to avoid becoming involved being named in a class action or any legal proceeding (or seeking to limit liability) we recommend that long-term care facilities take the following steps:

  1. Ensure that all provincial and professional standards with regard to resident care are met;
  2. Establish best practice guidelines;
  3. Provide ongoing education sessions so that staff are reminded of the standards they are to meet; and,
  4. Maintain and enforce clearly defined performance standards.

If a class action is filed against your facility, we recommend that you contact your lawyer, check for any insurance coverage and if you have insurance be sure to notify the insurer and be sure to keep any relevant documents in a secure location.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are urged to consult their professional advisers before taking any action on the bases of information contained in this newsletter.

If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.