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Darryl Singer

Largest COVID-19 class action in Canada launched against long-term care chains

Wednesday, May 13, 2020 @ 9:46 AM | By Christopher Guly

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As the COVID-19 pandemic claims the lives of older Canadians, the long-term care homes in which they reside are facing growing accusations of negligence.

One of the latest allegations, came from a woman who told the Ottawa Citizen that her father would not have died of COVID-related complications had he received better medical care and had the home — run by Sienna Senior Living Inc. in the east end of Ottawa and where nearly 30 residents have died from the virus — practised proper infection control.

The man’s family has reached out to national firm Diamond and Diamond Lawyers LLP, which on May 12 added Sienna, operator of 37 nursing homes in Ontario, to a class action lawsuit filed with the Ontario Superior Court on April 29.

It’s the largest COVID-19-related class action in Canada and seeks $120 million in damages against Revera Inc., owner and operator of 105 long-term care and retirement homes in Ontario through its subsidiary, Revera Retirement Living, and now Sienna.

In the statement of claim, the six representative plaintiffs seek $100 million in damages for negligence and breach of contract, and $20 million for exemplary, punitive and/or aggravated damages.

Darryl Singer, Diamond and Diamond LLP

The lawsuit alleges that Revera’s and Sienna’s negligence in failing to “follow acceptable practices regarding the prevention and containment of contagious respiratory illness, such as COVID-19 … to properly and adequately plan for and respond to the COVID-19 pandemic … have adequate staff” within the homes “to care for the residents in a safe and competent manner … [and] to communicate adequately with families of residents” led to the deaths of the family members of the representative plaintiffs as well as other similar fatalities in an action that could include as many as 3,000 nursing home residents and 10,000 individual family-member plaintiffs, according to Toronto personal injury lawyer Darryl Singer, head of commercial and civil litigation at Diamond and Diamond. “We’ve had two lawyers in our office doing nothing but returning calls from people about the class action,” he told The Lawyer’s Daily.

He said the firm initiated the lawsuit because it had been working on dozens of individual negligence cases against long-term care homes throughout Ontario over the past five years. While most of the lawsuits settled out of court, the claims were similar to those now levelled against Revera and Sienna.

“The allegations of negligence that we made against nursing homes in those individual cases involved people being let out of their rooms when they’re not supposed to be; people falling out of bed because the railing wasn’t up; people sitting in their own soiled diaper for 12 or 14 hours because the staff was ‘too busy,’ ” Singer explained.

“All of these things existed prior to the COVID crisis, and when COVID hit, it was no surprise, and so we jumped onto the class action against Revera.”

He said that in addition to the actions against Revera and Sienna, Diamond and Diamond has been contacted by people with family members at retirement and long-term care homes owned and operated by Chartwell Master Care LP, and could launch a class action against the Mississauga, Ont.-based publicly traded company.

“There are years and years of neglect here, and that applies to all of the chains,” Singer said. “You’ve got companies that have put profit over the person.”

He explained that Revera, which is also headquartered in Mississauga, was originally a real estate investment trust, once publicly traded until it went private in 2007. The year before, a majority stake in the company was purchased by a subsidiary of the federal Public Sector Pension Investment Board.

“The objective of a pension fund is to make as much as it can for its stakeholders,” said Singer. “I’m not suggesting they should not be entitled to a profit. But when you’re in certain types of businesses, your obligation to make a profit is tempered by your legal obligation to the people from whom you’re making that profit.”

He said the problem with major corporations running nursing homes is that they often put in place the “bare minimum” provincial requirements for staffing and resident care.

In the Revera and Sienna class action, the plaintiffs contend that the defendants breached their duty of care to residents by, in part, failing to either establish a care plan or follow it adequately, and “involve the residents/seniors and/or substitute decision-maker in the plan,” and failing to develop a program to report “incidents of deficient or incompetent treatment or care of a resident, resulting in harm or risk of harm to the resident or senior under their care.”

Last year, Revera faced about 85 lawsuits across Canada by families who alleged negligence at the company’s facilities caused or contributed to the death of residents.

In 2018, the Ontario Superior Court discontinued a proposed class action against Sienna, which in a statement at the time, said that it “expects that this will be an individual claim and any potential liability pursuant to such [a] claim will be covered by insurance and should therefore not have a material adverse impact on the business.”

Singer said that during the COVID crisis, he’s heard from employees at nursing homes that they have not been properly equipped with personal protective equipment (PPE). “They said when their management calls the head office, they’re told to figure it out themselves, leaving PSWs [personal support workers] to come up with their own safety precautions,” he said.

Last month, the Ontario Nurses’ Association (ONA) obtained a court injunction on behalf of registered nurses at four private long-term care homes that have experienced outbreaks during the pandemic and which of the date of the April 22 hearing, had lost 54 residents to COVID-19.

In Ontario Nurses Assn. v. Eatonville Care Facility Inc. 2020 ONSC 2467, released two days after the hearing, Ontario Superior Court Justice Edward Morgan ordered the four nursing homes to provide nurses working there with access to fitted N95 facial respirators and other appropriate PPE as required. The application judge also ordered the facilities “to implement administrative controls such as isolating and cohorting of residents and staff during the COVID-19 crisis.”

The ONA argued that none of those measures was suitably implemented at the four facilities: Eatonville Care Centre, Anson Place, Hawthorne Place and Henley Place.

“We’ve now got a documented record from that case where the court has said that the [two] companies that own those homes are not doing enough for their employees,” said Singer.

“Employees from Revera and Sienna have said to me that because they didn’t have sufficient PPE and the home didn’t do enough to isolate patients, they didn’t want to work and were told that if they didn’t, they would lose their job.”

“These aren’t the nurses, who are unionized, well paid with great pensions. These are the PSWs who are for the most part earning minimum wage and are often the sole support for their families.”

Some nursing homes have four residents to a room, with each only separated from the others by a curtain, and isolating those who have tested positive for COVID-19 “costs money,” said Singer.

He explained that in order to move someone infected within a home might mean moving another resident, who doesn’t have the virus, out of a private room and refund the extra paid for the upgrade to that person.

“We’re not just saying that Revera and Sienna didn’t take the appropriate steps once the COVID outbreak occurred, but that they didn’t have a crisis plan in place,” said Singer. “If you’re running a long-term home, it’s reasonably foreseeable that an outbreak of an infectious disease is something that could occur and that you have to prepare for.”

Sienna did not respond to The Lawyer’s Daily’s request for comment on the class action.

But Revera did, by way of a statement widely provided to the media, in which the company said that it is “currently reviewing the class action lawsuit and will respond in due course.”

“However, we will not let it distract us from our singular focus at this time, which is to prevent further illness and loss of life,” the statement reads.

“Our homes regularly meet or exceed government standards, and we have been following government directives since the outset of the pandemic.”

However, Singer said that every long-term care home in Canada has to meet government standards or face closure. 

“We say that their obligations go above and beyond their statutory obligations,” he explained. “They have a common law duty of care and a contractual duty of care, which is at a much higher threshold than just the bare minimum government standard.”

The class action suit against Revera and Sienna states that the companies owed a fiduciary duty of care to residents, including their dependency on a home to “determine the best options for assistance, care and treatment on a day-to-day basis as a result of the COVID-19 pandemic,” and provide residents with “a safe and protected environment and to keep them safe.”

On behalf of the plaintiffs, Diamond and Diamond furthermore alleges that the injuries and deaths caused by COVID-19 to nursing home residents were caused by breach of contract, and is asking the Ontario Superior Court for damages to reflect the fatalities that resulted in Revera and Sienna failing to “properly mitigate the risk,” along with pain and suffering of both the class family members and current residents of the company’s properties.

Jasminka Kalajdzic, University of Windsor’s Faculty of Law

Punitive damages are also sought “as a result of the egregious, outrageous and unlawful conduct of the defendants and, in particular, their callous disregard for the health and lives of frail, elderly patients in Canada,” according to the statement of claim.

It alleges that while the companies promote their homes as providing “compassionate care,” they have shown “complete indifference to or a conscious disregard for the safety of residents and other senior in their care, justifying an award of punitive damages and/or aggravated damages in a sum which will serve to deter the defendants from similar conduct in the future.”

Last month, a class action lawsuit was launched against a Montreal-area, Quebec government-run nursing home where, as of late April, 88 residents had died of COVID-19 since March.

“All of these cases always come down to the facts, but as a matter of law, the class members will have to prove that there was a breach of the standard of care expected in the industry,” said Jasminka Kalajdzic, an associate professor and director of the Class Action Clinic at the University of Windsor’s Faculty of Law. “For example, if the evidence is that the nursing home did not have a pandemic plan in place that would be bad for the defendants. If the evidence is that they didn’t follow the pandemic plan or didn’t abide by the government guidelines that would also be very bad for the defendants.”

In 2009, a class action certified by the Ontario Superior Court against the Ontario government and the city of Toronto following an outbreak of Legionnaire’s disease at a public nursing home in the city four years earlier resulted in a $1.2-million settlement for 135 class members.

But the class actions filed against long-term care homes are just “the tip of the iceberg — the beginning of a trend toward litigating any COVID-related issues,” said Kalajdzic, a former civil litigator, who noted that such lawsuits have been launched in the U.S. involving insurance companies, universities and colleges regarding business and service disruptions caused by the pandemic.