Executive Summary: Key Legal and Evidentiary Issues

• Certification of a COVID-19 long-term care class action against all five corporate defendants, including whether a class proceeding was the preferable procedure for resolving systemic negligence allegations.
• Dispute over whether damages (in whole or in part) could be assessed on an aggregate basis, supported by an expert methodology that the plaintiffs ultimately abandoned.
• Scrutiny of plaintiffs’ pleaded causes of action (including abandoned breach of fiduciary duty and breach of contract claims) and their alignment with the Supporting Ontario’s Recovery Act’s requirement of bad faith or gross negligence for COVID-related suits.
• Extensive evidentiary record-building through interviews, document collection and multiple FOI requests, in the face of limited transparency about events at Roberta Place and defendants’ resistance to disclosure.
• Application of Ontario’s costs principles to a class certification motion, with detailed analysis of proportionality, wasted effort, and the impact of offers to settle on partial vs substantial indemnity costs.
• Consideration of the public interest and access-to-justice dimensions of litigation over pandemic management in long-term care homes when fixing a substantial costs award in favour of the successful plaintiffs.

Factual background

The proceedings arise from one of the most severe COVID-19 outbreaks in an Ontario long-term care and retirement facility, Roberta Place in Barrie. In early 2021, COVID-19 spread rapidly through the home’s resident population. A total of 73 residents died, 71 of whom tested positive for COVID-19 prior to their deaths, representing approximately 57% of the resident population at the time. All residents were elderly or otherwise vulnerable by reason of age or infirmity and relied on staff and management for infection prevention and control measures. Family members were largely excluded from the building during much of the critical period, making it difficult for them to observe or document conditions inside the facility.

The plaintiffs are George Head (acting through his litigation guardian, Marcella Lambie), Marcella Lambie in her personal capacity, the Estate of Janet Martin (by her estate representative Scott Martin), and Scott Martin personally. They bring the action both on their own behalf and on behalf of a proposed class of residents and family members affected by the outbreak. The defendants are 859530 Ontario Inc., Barrie Long Term Care Centre Inc., Jarlette Holdings Inc., Jarlette Ltd., and Roberta Place Retirement Lodge Inc., entities involved in the ownership, operation and management of Roberta Place.

Because information about what occurred within Roberta Place was not readily available, plaintiffs’ counsel undertook a substantial evidentiary investigation before certification. They conducted extensive online research, interviewed over 100 putative class members, corresponded with and collected documents from hundreds of residents and families, submitted ten Freedom of Information requests, and retained an infectious disease expert to analyze pandemic planning and infection control at the home. Defendants resisted disclosure through FOI processes, appealing six of seven consulted-on requests to the Information and Privacy Commissioner, but their objections were ultimately rejected. This groundwork formed the evidentiary foundation for the proposed class action and the later certification motion.

The proposed class action and claims

The plaintiffs allege that the defendants’ management and operation of Roberta Place during the COVID-19 pandemic fell so far below reasonable standards of care as to amount to gross negligence. They seek $25,000,000 in damages for gross negligence and a further $25,000,000 in punitive and aggravated damages, reflecting the seriousness of the alleged misconduct and the scale of harm. In addition, they claim Family Law Act damages of $100,000 for each member of the family class, based on the statutory rights of certain relatives to recover for loss of care, guidance and companionship arising from injury or death of their loved ones.

The pleading and motion record initially advanced several causes of action, including negligence/gross negligence, breach of fiduciary duty and breach of contract. However, the legislative framework governing COVID-19 litigation in Ontario, particularly the Supporting Ontario’s Recovery Act, 2020, sharply limits civil liability for COVID-related harms unless bad faith or gross negligence is pleaded and proven. In light of that statutory environment and recent case law, breach of contract and breach of fiduciary duty claims were ultimately abandoned shortly before the certification hearing, leaving gross negligence at the core of the case.

There is no discussion of insurance policy wording or specific policy clauses in the decisions provided. The court’s analysis focuses instead on tort liability, class action procedure and costs principles, rather than on coverage disputes or interpretation of insurance contracts.

The certification motion and key legal issues

The main decision (Head v. 859530 Ontario Inc., 2025 ONSC 4817) addresses whether the action should be certified as a class proceeding under the Class Proceedings Act, 1992. By the time of the certification hearing on May 12, 2025, some issues had been narrowed through negotiations and offers to consent to certain forms of certification. Four primary questions remained for the court:

1. If the action were certified, whether certification should extend to all five named defendants or only some of them.
2. Whether some or all of the claimed damages could properly be determined on an aggregate basis as a common issue.
3. Whether punitive, exemplary or aggravated damages should be included as certifiable common issues.
4. Whether, in light of the statutory criteria and the factual context, a class proceeding was the preferable procedure to resolve the claims.

The plaintiffs had served an expert report by Gary Principe proposing a methodology for aggregate damages. The defendants cross-examined him in preparation for the certification motion. However, shortly before the hearing the plaintiffs elected not to rely on his report or testimony. As a result, the court proceeded without that methodology in considering whether aggregate damages could be certified.

The court ultimately certified the action as a class proceeding. Certification was granted against all five corporate defendants. Common issues included the central negligence and gross negligence questions, as well as punitive, exemplary and aggravated damages. The court held that a class action was the preferable procedure, given the systemic nature of the alleged failures, the number of affected residents and families, and the access-to-justice benefits of resolving common issues in one proceeding. The only substantive issue on which the defendants succeeded was the refusal to certify damages on an aggregate basis; the court concluded that, on the evidentiary record and in the absence of a relied-upon methodology, aggregate assessment was not appropriate at the certification stage.

Thus, on three of the four contested certification questions, the plaintiffs prevailed. The final certification order mirrored the plaintiffs’ last offer to consent certification, dated April 28, 2025, which maintained all five defendants, dropped contract and fiduciary claims, abandoned aggregate damages, and left gross negligence and related common issues—including punitive and aggravated damages—as the core certified questions.

The costs decision following certification

The second decision, Head v. 859530 Ontario Inc., 2025 ONSC 6642, is a detailed ruling on costs arising from the successful certification motion. The plaintiffs sought $421,376.99 in fees (inclusive of HST) and $102,588.53 in disbursements, totaling $523,965.52. They argued that, because their final offer to consent certification matched the outcome ordered by the court, they were entitled to partial indemnity costs up to that offer and substantial indemnity costs thereafter. The defendants countered that no costs should be ordered, or, failing that, that any award should be limited to about $60,906, contending that success was divided, some of plaintiffs’ efforts were unnecessary or wasted, and the overall bill was disproportionate.

Justice Healey reviewed the statutory and common law framework for costs in class proceedings, emphasizing that, notwithstanding s. 31(1) of the Class Proceedings Act, general civil costs principles apply: costs are discretionary, guided by Rule 57.01 and proportionality, and typically follow the event on a partial indemnity basis for contested motions. Within the class proceedings context, the court highlighted that certification is a vital step that justifies substantial investment by both sides, and that access to justice is a fundamental objective.

On the merits of the costs claim, the court rejected the idea that success was meaningfully divided. Only one of four contested issues—aggregate damages—was resolved in the defendants’ favour, and that point had limited complexity and did not consume a large share of the motion. The plaintiffs, by contrast, achieved a result identical to their April 28, 2025 offer, warranting substantial indemnity costs for the hearing itself.

At the same time, Justice Healey scrutinized the plaintiffs’ accounts. The court found that certain expenditures justified downward adjustment:

• Time spent pressing breach of fiduciary duty and breach of contract theories up to five days before the hearing, despite clear legislative and case law signals that COVID-related claims had to be framed in terms of bad faith or gross negligence.
• Costs related to the expert Principe and his aggregate damages methodology, which the plaintiffs chose not to rely on at the hearing, after the defendants had already prepared to meet that evidence.
• The volume of time docketed by plaintiffs’ counsel for preparing for and attending the certification motion itself, which significantly exceeded the defendants’ time, absent a full explanation.

Rather than dissect each docket, the court applied percentage reductions to categories of fees associated with motion records, cross-examinations, facta and the hearing, and credited the defendants for unnecessary costs, including Principe-related disbursements. However, Justice Healey accepted that the bulk of the plaintiffs’ work was necessary to meet their evidentiary burden, especially given the opacity surrounding conditions at Roberta Place, the high mortality rate, the vulnerability of residents and the defendants’ resistance to disclosure in FOI processes. The court also accepted that plaintiffs’ higher hourly rates and the onus they bore at certification naturally generated greater costs than those of the defendants.

Justice Healey then compared the resulting figure with costs awards in other recent class proceedings. The adjusted amount still sat toward the higher end of the spectrum but was not disproportionate given the complexity of the issues, the size of the claim, the sensitivity and public significance of pandemic management in long-term care, and the substantial preparation necessary for certification. The court stressed that this litigation has implications beyond the immediate parties, touching on how long-term care homes plan for and respond to public health emergencies.

After making all adjustments and stepping back to assess overall fairness and proportionality, the court concluded that the plaintiffs should receive a substantial, but moderated, award. The defendants, having lost the certification motion on three of the four key issues, were ordered to pay costs and disbursements fixed at $300,000 plus HST, for a total of $339,000, payable within 30 days. The plaintiffs are therefore the successful party on the certification and costs motions, and, as of these decisions, the only quantified monetary relief ordered in their favour is this $339,000 all-inclusive costs award; the underlying damages claims for gross negligence, punitive and aggravated damages, and Family Law Act relief remain to be determined at a later stage.