Executive Summary: Key Legal and Evidentiary Issues

• Whether Maryban Holdings Ltd. owed and breached a duty of care, rising to gross negligence, in its COVID-19 response at Oakwood Park long-term care home.
• Extent to which chronic deficiencies in staffing, facility conditions, and IPAC training and protocols rendered residents and visitors foreseeably vulnerable to COVID-19 outbreaks.
• Use of expert epidemiological and IPAC evidence to show that most COVID-19 infections and deaths were preventable through accepted infection control practices.
• Viability of determining causation and various heads of damages (including potential aggregate damages) on a class-wide basis rather than through individualized trials.
• Appropriateness and workability of the proposed class definitions for residents, visitors, and Family Law Act derivative claimants over the January 25, 2020 to May 5, 2023 period.
• Satisfaction of the Class Proceedings Act, 1992 certification criteria, including common issues, preferable procedure, and adequacy of the representative plaintiffs and litigation plan.

Background and parties

This proceeding arises from the COVID-19 outbreaks at Oakwood Park Lodge (“Oakwood Park”), a licensed long-term care home in Ontario owned and operated by Maryban Holdings Ltd. The plaintiff is Jennifer Penney, acting both as litigation administrator for the Estate of Yvette Brauch, a deceased resident, and in her personal capacity. She seeks to advance a class action on behalf of residents, visitors, and certain family members who claim to have suffered preventable harm during the COVID-19 pandemic as a result of the defendant’s conduct. The decision is a certification ruling of the Ontario Superior Court of Justice under section 5(1) of the Class Proceedings Act, 1992 (CPA). The defendant consented to certification, so the motion proceeded in writing and the Court did not determine liability or damages at this stage.

Allegations about the COVID-19 response at Oakwood Park

The plaintiffs allege that Maryban Holdings Ltd. was grossly negligent in the way it responded to the COVID-19 pandemic at Oakwood Park. The claim states that from December 21, 2020 to March 30, 2023, Oakwood Park experienced at least three COVID-19 outbreaks, during which at least 93 residents contracted COVID-19 and at least 35 residents died from the virus. The plaintiffs say these infections and deaths were serious, preventable harms caused by a delayed, piecemeal, and inadequate response to the pandemic in a setting known to house elderly and vulnerable individuals.
According to the pleadings, the defendant’s conduct departed markedly from the required standard of care for Infection Prevention and Control (IPAC) and for delivery of care to elderly and vulnerable populations. Despite widespread knowledge about the importance of the precautionary principle in managing respiratory outbreaks, including COVID-19, the defendant is said to have responded in a reckless and arbitrary manner. The plaintiffs contend that the defendant recognized its obligations to follow appropriate guidance and best practices but adopted reactive and deficient measures instead of proactive and effective IPAC measures that reflected evolving medical and long-term care sector knowledge about COVID-19 and its particular risks to elderly residents.

Systemic facility deficiencies and regulatory context

Beyond acute pandemic decisions, the plaintiffs allege that long-standing, chronic deficiencies at Oakwood Park made the home prone to outbreaks. They point to outdated, physically neglected, and overcrowded facilities, inadequate IPAC training and protocols, systemic failures in inspection and oversight of compliance with applicable regulatory and industry standards, and chronic understaffing. These systemic issues are said to have increased the foreseeability and likelihood of COVID-19 spread and severe outcomes once the virus entered the home. The plaintiffs frame the case as one of gross negligence grounded both in pre-pandemic conduct and in responses during the pandemic period, arguing that lives would have been saved had the defendant met its common-law obligations in the years leading up to and throughout the pandemic. The Court held that the Fresh As Amended Statement of Claim advances a reasonable cause of action in gross negligence and that it cannot be said there is no reasonable prospect of success, thereby satisfying the cause of action requirement in section 5(1)(a) CPA.

Structure of the proposed class

The proposed class definition largely mirrors class definitions certified in other long-term care COVID-19 class actions, such as Pugliese v. Chartwell. The class period runs from January 25, 2020, to May 5, 2023, ending when the Public Health Agency of Canada issued a statement reflecting the World Health Organization’s announcement that COVID-19 was no longer a Public Health Emergency of International Concern.
The plaintiffs propose three related groups. “Residents”, “Resident Class” and “Resident Class Members” include all persons who were residents in, or received care at, Oakwood Park during the class period and who contracted COVID-19, or, if deceased, their estates. “Visitors”, “Visitor Class” and “Visitor Class Members” encompass all persons who visited Oakwood Park between January 25, 2020, and May 5, 2023, and who contracted COVID-19, or their estates if they died. Finally, “Family Class” and “Family Class Members” comprise spouses, children, parents, and other relatives who, by virtue of their personal relationship to a resident or visitor class member, assert derivative claims for damages under section 61 of the Family Law Act for loss of care, guidance, companionship, and related harms. The Court found that these definitions create a readily identifiable, workable class that is not unduly vague and therefore meet the section 5(1)(b) CPA requirement.

Common issues to be determined on a class-wide basis

The plaintiffs advanced a series of common issues grouped under gross negligence, causation, and damages and remedies. Under gross negligence, the proposed issues ask whether the defendant owed a duty of care to class members in relation to COVID-19 outbreaks, what the applicable standard of care was, whether that duty was breached, and whether any breach amounted to gross negligence. Under causation, the issues ask whether any breaches caused or contributed to the harms and losses suffered by class members.
On damages and remedies, the plaintiffs seek determination of whether class members are entitled to general damages arising from gross negligence, whether they are entitled to disgorgement of benefits and profits the defendant allegedly enjoyed as a result of the breaches, whether aggravated, exemplary, or punitive damages are warranted, and whether the Court can make an aggregate assessment of all or some damages under sections 24 and 25 of the CPA. The Court emphasized that the common issues threshold in section 5(1)(c) CPA is low but requires some basis in fact beyond bare pleadings to show the issues can be determined in common and are not dependent on individual findings for each claimant.

Expert evidence and methodology for causation and damages

To support certification of causation and damages as common issues, the plaintiffs relied on an expert report from Dr. Dick Zoutman, an Emeritus Professor in the Faculty of Health Sciences at Queen’s University. Dr. Zoutman opined that the COVID-19 outbreaks at Oakwood Park were, “for the most part”, preventable. He set out a methodology to demonstrate that, had the defendant adequately planned, prepared, trained, and implemented available and accepted IPAC practices, the vast majority of COVID-19 outbreaks and resulting deaths at Oakwood Park would have been prevented. This methodology provides a framework for assessing, on a class-wide basis, whether the alleged systemic failures and IPAC deficiencies caused or materially contributed to infections and deaths across the resident and visitor populations, and thereby to the derivative family claims.
The Court accepted that this expert methodology offers some basis in fact that causation and damages—traditionally seen as highly individualized tort questions—can be addressed through common issues in this context. The judge referred to recent certification decisions, including Head v. 859530 Ontario Inc., which built on earlier case law such as Levac v. James. Although Head is under appeal, the defendant consented to certification in this case, subject to the possibility that it may later seek to revisit the common issues if a higher court significantly alters the applicable law. The judge clarified that this is not a conditional certification but simply an acknowledgment that the law may evolve and that any substantial change could justify a future motion to vary.

Preferable procedure and access to justice

The Court then considered whether a class action is the preferable procedure under section 5(1)(d) CPA. It concluded that, given the nature of the allegations, the number of affected individuals, and the presence of common questions about systemic standards of care, IPAC practices, and outbreak prevention, a class proceeding is clearly preferable to multiple individual lawsuits brought by residents, visitors, or their estate representatives. Individual actions would be costly, cumbersome, and risk inconsistent outcomes, undermining access to justice and judicial economy. The class action format, by contrast, allows for centralized findings on gross negligence, causation, and overarching damages methodologies, while leaving room for individualized assessments if needed at later stages. The Court therefore held that the preferable procedure requirement was met.

Representative plaintiffs and litigation plan

Turning to section 5(1)(e) CPA, the Court reviewed whether the representative plaintiffs could fairly and adequately represent the interests of the class and whether a workable litigation plan existed. The record showed that the representative plaintiffs were capable of instructing counsel and had no apparent conflicts with other class members. They had advanced a litigation plan that the Court viewed as practical for managing the issues through certification, discovery, common issues trial, and any subsequent individual issues process. This satisfied the final certification criterion.

Outcome of the certification motion

In its disposition, the Court ordered that the action be certified as a class proceeding under section 5(1) of the CPA. The plaintiffs were appointed as representative plaintiffs, and their counsel was appointed as class counsel. The class was defined in accordance with the definitions proposed in the pleadings, and the common issues were approved substantially as set out in the certification materials. An order was to issue in the form submitted by plaintiffs’ counsel.
The successful party on this certification motion is the plaintiff side, which obtained full certification of the class action and approval of its proposed class definition and common issues. However, this decision does not determine liability, damages, or costs; no findings are made that the defendant actually committed gross negligence, and no monetary award or quantified costs are ordered in favor of the plaintiffs at this stage. As a result, while the plaintiffs succeeded in having the class action certified, the total amount of monetary award, damages, or costs in their favor cannot yet be determined from this decision.