The lawyers involved in assembling a mega class action against Ontario long-term care homes are including Roberta Place as part of the lawsuit, representing family members of those who have died as a result of COVID-19.
Darryl Singer said his firm, Diamond and Diamond Lawyers, has been in touch with several family members of residents of the Barrie long-term care home where all but one resident has fallen ill due to COVID-19 and many have died.
About 100 long-term care homes are part of the class action being proposed.
Initially, the action started as a result of deaths in Ontario facilities during the first wave. That has since been expanded as the pandemic once again takes a deadly toll.
The country’s spotlight has recently turned to the Roberta Place long-term care home in Barrie which has reported Canada’s first known outbreak of the COVID-19 U.K. variant, claiming the lives of 53 residents along with an essential caregiver associated with the home as of Friday. Of the 129 residents, 128 have tested positive along with 84 staff members.
The class action, says Singer, turns on how the homes failed the residents.
“Roberta Place is part of a large lawsuit” assembled by three law firms that they’re calling a mega action, he said. “We’ve essentially put close to 100 homes into one large class action, rather than doing 100 class actions.
“If they are not already part of this larger action, they are all ultimately going to be consolidated into one large action because essentially what we say is the allegations against Roberta Place are no different than the allegations against every other operator running every other home.”
The suit is accusing the homes of lacking in emergency preparedness, personal protective equipment, staffing and facilities for isolation as well as not paying attention to the crisis when it arose in March and failing to prepare for “the inevitable second wave,” said Singer.
“All of the modelling from the public health officials at that time was along the lines of: ‘It’s going to die down over the summer, but get ready, it’s going to ramp up again in the fall when it gets cold.’ And sure enough that’s what happened.”
And while the allegations against Roberta Place are the same as the other homes, the difference is that the root cause in Barrie was this more virulent and deadly U.K. variant.
The bottom line, he charges, is that the residents and the staff were not adequately protected.
“They just didn’t do it,” he said. “We suspect Roberta Place is going to say: ‘Yeah, we were prepared for the regular strain but nobody saw this new U.K. variant happening.’ And my answer is to call B.S. on that because at the end of the day, you’re either prepared for an outbreak or you’re not.”
Considerations are being given to a separate class action involving workers of the homes, many of whom themselves have fallen ill while dealing with additional stresses in the workplace.
But unionized homes would not be part of any lawsuits since contracts from bargaining agreements typically preclude civil lawsuits, said Singer.
More than 100 employees at Roberta Place are unionized.
The Health Care and Service Workers Union Local 304, which is affiliated with the Christian Labour Association of Canada (CLAC), has 115 members, consisting of personal support workers (PSWs), registered practical nurses (RPNs), and other program staff. It indicates there are no immediate plans for legal action on behalf of the workers.
“Our members right now are focused on ensuring that the residents are cared for and that everyone at Roberta Place is kept safe,” said Ian DeWaard, its provincial director, in an email. “CLAC is monitoring the situation and inquiring into whether members have been exposed to risk due to negligence or misconduct. We are in contact with those at work, and those who remain at home due to infection.”
Its options, he added, include grievance arbitration and complaints with the Ontario Labour Relation Board and the Workplace Safety and Insurance Board.
Singer earlier said he doesn’t expect new legislation that offers protections to homes that have made “good faith effort”. Even though Supporting Ontario's Recovery Act changes the standard of proof from mere negligence to gross negligence, Singer said the homes involved the class-actions do not meet the good-faith standards that include following public health guidelines.