Executive Summary: Key Legal and Evidentiary Issues

• The main issue was whether the certification of the class proceeding met the criteria under s. 7(1)(c) of the Class Proceedings Act, particularly regarding breach of standard of care and the applicable standard of care as common issues.

• Northwood challenged the certification decision, asserting the motion judge applied the incorrect legal test by not adopting a two-step commonality analysis as endorsed by the Federal Court of Appeal in Jensen v. Samsung Electronics Co. Ltd..

• The evidentiary dispute included whether the plaintiff presented a credible methodology to establish causation as a common issue, which the judge declined to certify due to lack of evidence of a workable methodology.

• The Court of Appeal held that certification focuses on the form of the action and whether it can appropriately proceed as a class proceeding, not on the merits of the case.

• Northwood failed to raise an arguable issue capable of persuading a panel of the Court to allow an appeal, as no error of law or palpable and overriding error was identified.

• The application for leave to appeal was dismissed with costs awarded to the respondent in the amount of $800, inclusive of disbursements.

Facts of the case

Northwood Care Group Inc. and related corporate entities operated long-term care facilities in Nova Scotia where, during the period from March 15, 2020 to June 30, 2020, 53 residents died after contracting COVID-19. Erica Surette, as the representative plaintiff, brought an action under the Class Proceedings Act on behalf of individuals whose next of kin tested positive for COVID-19 and passed away while residing in Northwood facilities during that period.

The statement of claim alleged that Northwood owed legal duties to the deceased residents, breached those duties and the standard of care, and caused harm and damages as a result of the deaths. The alleged breaches included failures to: enforce physical distancing; control risks from the facility’s crowded design; restrict dangerous contact and shared personal items; manage staff and resident movement; conduct sufficient testing; secure alternative accommodations; enforce timely use of personal protective equipment; and implement public health guidelines. These allegations related to failures in implementing infection prevention and control (IPAC) practices, not the creation or content of policies.

Outcome of the certification decision

Justice Norton of the Nova Scotia Supreme Court certified the proceeding as a class action, finding that the statutory requirements under s. 7(1) of the Class Proceedings Act were met. The pleadings disclosed a cause of action; there was an identifiable class; the action raised common issues concerning whether Northwood owed a duty of care and whether it breached the standard of care; a class proceeding was the preferable procedure; and Ms. Surette was a suitable representative plaintiff with a workable plan.

The judge declined to certify causation as a common issue, as there was no evidence of a workable methodology capable of proving causation on a class-wide basis, such as statistical or epidemiological evidence.

Outcome of the appeal decision

Northwood sought leave to appeal, arguing that the motion judge erred in law by failing to apply a two-step test requiring proof that each proposed common issue (1) actually existed and (2) was common to all class members. Northwood contended that the judge certified the standard of care issue “in a vacuum” without analyzing each of the nine alleged breaches separately.

The Nova Scotia Court of Appeal dismissed the application for leave to appeal. The Court held that the judge applied the correct legal principles from the Supreme Court of Canada in Hollick and Pro-Sys and from the Court’s own decision in Murray. The Court concluded that Northwood had not identified an arguable issue capable of persuading a panel to allow the appeal. The application was dismissed with costs of $800 payable to the respondent.