Executive Summary: Key Legal and Evidentiary Issues

• Core issue concerns whether the defendants’ conduct during the COVID-19 outbreak at McKenzie Towne Centre meets the threshold of gross negligence.

• Plaintiff seeks a stay of proceedings pending outcomes of the Pugliese and Brentwood actions, asserting these will address substantially similar legal issues.

• Disputed application of Alberta’s COVID-19 Related Measures Act, which bars claims except in cases of gross negligence, is central to liability.

• Broader claims in this case—such as breach of contract, fiduciary duty, and Charter rights—have not yet been narrowed unlike in the comparator cases.

• Court evaluates overlap with certified issues in other class actions to determine efficiency and fairness in proceeding.

• Stay is granted as delay does not materially prejudice defendants and may aid in judicial economy.

Background of the case

The plaintiff, Marijke Roberge, acts as the representative plaintiff in a proposed class action against Revera Inc. and affiliated entities that operated McKenzie Towne Continuing Care Centre in Calgary. The action arises from events during the COVID-19 pandemic, specifically between March and April 2020. Roberge’s mother became a resident of McKenzie Towne Centre in February 2020. After in-person visits were suspended on March 14, 2020, her mother was diagnosed with COVID-19 on March 28, 2020, and died on April 4, 2020.

The proposed class includes current or former residents of the facility who contracted COVID-19 and their immediate family members. The plaintiff alleges that the defendants, who are the owner, operator, licensee, and/or manager of the facility, are liable under several causes of action: negligence/gross negligence, breach of contract, breach of fiduciary duty, breach of section 7 of the Canadian Charter of Rights and Freedoms, and breaches of Alberta’s Occupiers’ Liability Act and Human Rights Act. The plaintiff also challenges the constitutionality of Alberta’s COVID-19 Related Measures Act (COVID-19 Act).

The defendants deny all allegations, claiming they complied with all relevant federal and provincial health directives and operational standards. They also invoke the COVID-19 Act as a statutory bar to the plaintiff’s claims.

Legal context and similar actions

The plaintiff requested a stay of proceedings until the resolution of two similar class actions: Pugliese v. Chartwell in Ontario and Kaiser v. Brentwood Care Centre in Alberta. Both actions involve claims for COVID-related harm in long-term care homes. The court assessed whether the issues in these other actions are substantially similar to those in the current case.

In the Pugliese action, a class proceeding that consolidated eight lawsuits, including Hannon v. Revera Inc., the only claim to survive certification was negligence. Other claims were barred due to Ontario’s Supporting Ontario’s Recovery Act (SORA), which mirrors Alberta’s COVID-19 Act. The Ontario courts, including the Court of Appeal, interpreted SORA to bar claims except those based on proven gross negligence.

The Brentwood action, an Alberta class action similar in fact pattern to Roberge’s case, initially raised multiple causes of action. However, by March 18, 2025, the plaintiffs amended their pleadings to limit the claim to negligence and gross negligence only. This followed a consent order for certification dated July 26, 2024.

In both comparator actions, the certified common issues focus on whether the defendants owed and breached a duty of care, and whether any breach constituted gross negligence. These issues are nearly identical to those at the core of the Roberge action, though Roberge’s pleadings still include additional legal claims that may eventually be narrowed.

Discussion of policy terms

A central statutory issue is the application of Alberta’s COVID-19 Related Measures Act, which provides liability immunity to care providers for COVID-19-related harm unless gross negligence is proven. While the plaintiff in Roberge challenges the validity of this Act, such a challenge was not raised in the Pugliese action, and was eventually dropped in Brentwood as plaintiffs narrowed their claims to gross negligence. The court in this decision did not rule on the constitutionality of the Act but noted that if the plaintiff in Roberge limits her claim similarly, there would be little legal distinction between the three actions.

Outcome

Justice M.H. Hollins granted the plaintiff’s application to stay proceedings. The court applied a three-part legal test, assessing (1) whether the issues in the other actions are substantially similar, (2) whether refusing the stay would be oppressive or unjust to the plaintiff, and (3) whether granting the stay would be unjust to the defendants. The court found all three elements in favor of the plaintiff.

The court held that proceeding in parallel would waste judicial and party resources and that findings in Pugliese and Brentwood are likely to inform or resolve the common issues in Roberge. It found no undue prejudice to the defendants, especially given that the action had been dormant since 2021 until this motion. The stay will remain in place until a decision is reached on the common issues trial in either Pugliese or Brentwood. If disputes arise regarding the timing or resumption of the case, parties may apply to the judge’s office for direction.

No monetary award, damages, or costs were granted or ordered in this decision.