FAQ

Residents, Visitors, and families of people who suffered from COVID-19 and other related harms, at certain Ontario LTC homes brought multiple proposed class actions which were eventually combined into eight separate lawsuits against the owners and operators of the LTC homes. The allegations include gross negligence, specifically involving the Defendants’ response to the pandemic.

The lawsuits allege that the vast majority of COVID-19 related deaths and infections in Ontario’s LTC homes could have been prevented if the Defendants had prepared and implemented timely and proper infection prevention and control (“IPAC”) procedures and pandemic plans.

The lawsuits seek to recover damages for the physical harm, suffering and death of LTC home Residents and certain Visitors, as well as related damages for the loss of care and companionship suffered by Family Class Members.

The Court has certified the six Certified Actions on behalf of the following Class Members:

(a)   “Residents”, “Resident Class” and “Resident Class Members” mean all persons who contracted COVID-19 and who were Residents in, or received care at, the Defendants’ LTC homes at any time between January 25, 2020 and May 5, 2023, or, where the person is deceased, the estate of that person.

(b)  “Visitors”, “Visitor Class” and “Visitor Class Members” mean all persons who contracted COVID-19 at any of the Defendants’ LTC homes as part of the homes’ volunteer programs or to visit Residents at any time between January 25, 2020 and May 5, 2023, or, where the person is deceased, the estate of that person.

(c)   “Family Class” and “Family Class Members” mean all persons including, but not limited to, spouses, children, parents, and other relatives who, on account of a personal relationship to any one or more Resident Class Members and Visitor Class Members, who have a derivative claim for damages under s.61 of the Family Law Act.

If you were a Resident, Visitor, or Family Class Member in one of the homes listed in Appendix A, you are a Class Member. If you do NOT see your LTC home listed in Appendix A, you are NOT a Class Member and any claim that you may have is NOT being advanced in one of the Certified Actions.

As a result, class membership in the Certified Actions is restricted to Residents and certain Visitors who contracted COVID-19 at the Defendants’ LTC homes during the Class Period, along with their family members. Residents and Visitors who did NOT contract COVID-19 ARE NOT INCLUDED as Class Members in the Certified Actions and their claims and those of their family members are NOT being advanced.

IF YOU ARE NOT A CLASS MEMBER but you wish to advance a claim against one or more of the Defendants in the Certified Actions in relation to care at your LTC home, you should contact legal counsel and inform yourself of your rights, including any limitation period that may apply to your claim.

The Court began by hearing the certification motions for the eight class actions together in one hearing. On March 7, 2024, the Court released its decision, certifying as class actions the following six actions: the Chartwell Action, the Extendicare Action, the Responsive Action, the Revera Action, the Schlegel Action and the Sienna Action. As a result, each of these six lawsuits can move forward as class actions that will advance the claims of all Class Members relating to COVID-19 infections in these LTC homes.

The Court determined that the following four “Common Issues” can be decided on behalf of all Class Members in each of the six Certified Actions:

1. Did the Defendants, or any of them, owe a duty of care to the members of the Classes related to COVID-19 outbreaks in their long-term care (“LTC”) homes in Ontario?
2. If the answer to 1) is “yes”, what was the applicable standard of care?
3. If the answer to 1) is “yes”, did the Defendants, or any of them, breach the duty of care they owed to all or any of the members of the Classes? If so, when and how did the breach(es) occur?
4. If the answer to 3) is “yes”, did any or all of the Defendants’ breach(es) amount to gross negligence?

This means that, in each of the six Certified Actions, each of these Common Issues will be determined once on behalf of Class Members, unless you opt out of the action.

To be clear, the Court has not yet answered these Common Issues, and the Defendants deny any liability in relation to the Certified Actions. The Court has not yet decided the likelihood of the Class Members receiving compensation or made any decision on the merits of the claims or defences asserted.

If you are a Resident or Visitor Class Member and you want to participate in the Certified Actions, you are automatically included and do not need to do anything at this time.

If you participate, you will be bound by all orders of the Court, as well as the terms of any settlement or judgment, whether favourable or not, and will not be able to start your own individual action against any of the Defendants in the Certified Actions related to COVID-19 infection.

If you do nothing and remain a Class Member, you are not required to pay legal costs or other expenses, even if the class action is unsuccessful at the common issues trial. Similarly, if you participate in a Certified Action, and it is unsuccessful, you will not be permitted to commence your own lawsuit against the Defendants regarding the subject matter of the Certified Actions.

If your action is successful or settles, you may be entitled to share in the amount of any judgement or settlement benefits as ordered or approved by the Court. In addition, if the Common Issues are decided in favour of the Class Members, issues of causation will be determined on a home-by-home basis, by way of mini-trials or another process directed by the Court. It is important that you preserve any records, including medical records, you have regarding your (or your family member’s) COVID-19 infection within the LTC homes.

If you are a Resident or Visitor Class Member and do not want to participate in the Certified Actions and/or you wish to pursue your own individual lawsuit related to the subject matter of the Certified Actions, you must formally exclude yourself by OPTING OUT.

Opting out means that you will not be involved in the Certified Actions, you will not be entitled to any compensation that may become available as part of the resolution of the Certified Actions, either through settlement or a judgment, but you will be able to commence your own individual lawsuit (or continue any lawsuit you have already brought).

Family Class Members do not have an independent right to opt out and are bound by the decision made by their related Resident or Visitor Class Member about whether to opt out or not.

If you want to commence or continue your own lawsuit, you MUST opt out. If you do opt out, you must abide by all applicable limitation periods and should consult a lawyer.

If you want to opt out of the Certified Actions, you must deliver an opt out form ot the Notice Administrator no later than <DATE>. 

If you want to opt out of the Certified Actions, you must deliver an Opt-Out Form to the Notice Administrator through the online portal submission at www.LTCClassActions.com or by mail to P.O Box 3355, London, Ontario, Canada (N6A 4K3) by no later than <DATE>.

Please note that you cannot deliver an Opt-Out Form by email.

Please note that your Opt-Out will only be considered valid if you receive an e-mail confirmation from the Notice Administrator. If you do not receive an e-mail confirmation from the Notice Administrator, your Opt-Out was not received and is not valid.

You may also opt out by downloading and mailing an Opt-Out Form to the Notice Administrator at the address below. All such Opt-Out Forms must be postmarked by <DATE>.

The next significant step after the certification motion in the Certified Actions will be the discovery process, which will involve the sharing and review of documents related to the lawsuit and the examination of the Representative Plaintiffs and the Defendants’ representatives. This part of the Court process may also involve one or more motions to decide any issues that arise between the parties.

Once the discovery process is completed, each of the Certified Actions will proceed to a determination of the Common Issues. The result reached at the conclusion of the Common Issues determination will be binding on all Class Members associated with that Defendant group.

If the parties to any of the Certified Actions reach a settlement at any point, that result will also be legally binding on all Class Members. If the Plaintiffs achieve success in court or through a settlement, Class Members may then be entitled to compensation in accordance with the judgment or the settlement terms.

Class Members will receive notice of any major steps in the litigation, including any judgment or proposed settlement. If the action is settled, you will have an opportunity to “object” to the settlement and the amount of Class Counsel’s fees if you do not think it is appropriate.

The Defendants in the Chartwell, Extendicare, Schlegel and Sienna Actions brought motions seeking the Divisional Court’s permission (called “seeking leave”) to appeal certain portions of the Certification Order. The Defendants in the Responsive and Revera Actions did not seek leave to appeal.

On August 26, 2024, the Divisional Court denied the Defendants’ motions for leave to appeal. The decision is posted on the Ontario Long-Term Care COVID-19 Class Actions website.

All of the Certified Actions will now proceed to discoveries.

As noted above, the Court’s decision on March 7, 2024 did not certify the following two lawsuits as class actions:

• McDermott v. ATK (Court File No. CV-20-00644726-00CP) (“Independently-Owned Action”); and
• McVeigh v. Toronto (Court File No. CV-22-00687579-0000) (“Municipal Action”).

The Court has allowed these actions to be discontinued without paying adverse costs, and noted that new standalone claims against each of the originally-named Defendants could be brought.  At this time, the proceeding against the Defendant, ATK Care Inc. (related to the River Glen Haven Nursing Home) is not being discontinued and certification will be pursued. Similarly, the proceeding against the City of Toronto (related to Cummer Lodge, Kipling Acres, Lakeshore Lodge, Seven Oaks, Wesburn Manor and Fudger House) is not being discontinued and  certification will be pursued. Any new lawsuits must be launched by <DATE>.

Further information relating to the discontinuance of the Municipal Action and the Independently-Owned Action may be found at LTCClassActions.com.

The list of homes included in the Municipal Action and the Independently-Owned Action against which claims are being discontinued is located at Appendix C. Please read Appendix C carefully to see if the LTC home you or your family member attended is included on that list.

If you have a potential claim related to one of the LTC homes listed in Appendix C, the limitation period applicable to your claim will recommence running as of <DATE>. As such, you should  take steps to protect your legal rights and either retain your own lawyer to commence your own lawsuit or contact Class Counsel. PLEASE CONSULT LEGAL COUNSEL TO ENSURE YOUR RIGHTS ARE PROTECTED – CLASS COUNSEL IS AVAILABLE TO ASSIST IN THIS PROCESS.