Gayle Brock

The plaintiffs sought certification of a class action arising from a COVID-19 outbreak at Roberta Place Long Term Care Centre in Barrie, Ontario, from January 8 to February 18, 2021.

During the outbreak, 129 residents tested positive for COVID-19, resulting in 73 resident deaths (57% of the resident population).

The plaintiffs alleged systemic gross negligence by the defendants in failing to properly plan for and respond to the pandemic and implement adequate infection prevention and control (IPAC) measures.

The court certified the action as a class proceeding with three classes: residents who tested positive, estates of those who died from COVID-19, and eligible family members.

The court found that the plaintiffs met all five certification requirements under the Class Proceedings Act, 1992, including establishing common issues regarding duty of care, standard of care, breach, causation, and punitive damages.

The court rejected certification of aggregate damages as a common issue due to lack of evidence of a workable methodology.

The plaintiffs brought a medical malpractice action alleging that a surgeon breached the standard of care by recommending and performing revisional bariatric surgery following the failure of an earlier gastric partitioning procedure.

Liability was the sole issue at trial, as causation and damages were agreed upon subject to that determination.

The court considered extensive expert evidence concerning whether the patient was an appropriate candidate for revisionary bariatric surgery, including the relevance of the 1991 NIH bariatric surgery guidelines and the assessment of obesity‑related co‑morbidities.

The court held that candidacy for revisionary bariatric surgery involves the exercise of clinical judgment and that strict adherence to the NIH guidelines is not determinative, particularly where a prior bariatric procedure has mechanically failed.

The surgeon reasonably relied on the patient’s history, weight regain, gastroscopy findings confirming failure of the prior surgery, and a dietician’s assessment in determining candidacy.

The court concluded that the surgeon met the applicable standard of care.