Through a class action, the plaintiffs alleged the gross negligence of the Government of Ontario (i.e., the Minister of Long-Term Care and the Chief Medical Officer of Health) in managing the spread of the pandemic, ultimately resulting in the death of thousands of elderly residents in provincially-regulated long-term care (“LTC”) homes.

Specifically, the plaintiffs advanced three causes of action, namely negligence/gross negligence, breach of fiduciary duty and breach of Section 7 of the Charter of Rights and Freedoms. In this regard, they submitted that, while knowing from the outset that the frail and the elderly residing in LTC homes were the most vulnerable to the effects of COVID-19, the Government did not exercise its regulatory powers under the Health Protection and Promotion Act (HPPA) and the Long-Term Care Homes Act (LTCHA) to protect them and when action was finally taken it was too late.

By preliminary decision on procedural grounds of 20 December 2022, the Ontario Superior Court of Justice certified the proposed class action, although only with regard to the negligence/gross negligence basis. In particular, the Court first recalled that the Supporting Ontario’s Recovery Act (SORA), enacted in 2020, provides that no Covid-related lawsuits may proceed against any defendant, including the provincial government, unless there are allegations either of bad faith or gross negligence. Accordingly, in suing public authorities, plaintiffs must show that the defendant breached a specific duty of care.

In this regard, the existence of a duty of care must be determined according to the two-part test set out by the House of Lords in Anns v. Merton London Borough Council. According to the test plaintiffs are required to establish (i) the foreseeability and proximity, and (ii) the absence of any policy consideration that would negate the imposition of a duty of care. In the case at stake, with regard to the “foreseeability” requirement, the Court found that there was sufficient evidence that the losses alleged were reasonably foreseeable to the defendant. As per the “proximity” requirement, the Court considered that “proximity” exists only if there is a relationship of “sufficient closeness” between the government and the impacted individuals so that it would be “just and reasonable” to impose an obligation on the government to take reasonable care of such individuals (so-called ‘private law duty of care’). The sole available means to establish such private law duty of care is to assess the specific language used in the applicable statutes.

On such grounds, the Court found that a private law duty of care can only be established under the LTCHA and with respect to the Minister of Long-Term Care. More specifically, the LTCHA provides that the provincial government – hence the Minister - “recognizes the responsibility to take action where standards or requirements under this Act are not being met or where the care. Safety, security and rights of residents might be compromised”.

Based on the above, the Court concluded that an alleged breach of a private law duty of care on the part of the Minister of Long-Term Care is genuinely arguable, and that the negligence/gross negligence cause of action has at least a chance of success on the merits.

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