COURT FILES NOS.: CV-20-643205-CP
CV-20-648597-CP
DATE: 20210505
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMON NISBET AS LITIGATION GUARDIAN OF DOREEN NISBET
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
Proceeding under the Class Proceedings Act, 1992
AND BETWEEN:
KATHRYN ROBERTSON by her litigation guardian INNIS INGRAM; ELIZABETH SARAH MCDERMOTT by her litigation guardian MAUREEN ELIZABETH HAMILTON MCDERMOTT CARGILL, GERTRUDE BALAUSIAK by her estate representative JEFFREY BALAUSIAK, WILLIAM BROUGH by his estate representative DARREN BROUGH, MAURICE ALBERT ORCHARD by his estate representative CHRISTINA KINDER, CHARLES BLAGDON by his estate representative ROSEMARY BLAGDON, GASTON SCHWALB by his estate representative KIM KOBLINSKY, BERNARD RENAUD by his estate representative LORI RENAUD, TERESA ZAJAC by her estate representative HENRY ZAJAC, LUCILLE (MALCOLM) RHULE by her estate representative ANTHONY LLOYD, JEAN PATRICIA POLLOCK by her estate representative PAMELA CHRISTINE SMITH, ADRIAAN WILLEM GAANDERSE by his litigation guardian ALLARD ADRIAAN GAANDERSE, INNIS INGRAM, MAUREEN ELIZABETH HAMILTON MCDERMOTT CARGILL, JEFFREY BALAUSIAK, DARREN BROUGH, CHRISTINA KINDER, ROSEMARY BLAGDON, KIM KOBLINSKY, LORI RENAUD, HENRY ZAJAC, ANTHONY LLOYD, PAMELA CHRISTINE SMITH and ALLARD ADRIAAN GAANDERSE
Plaintiffs
-and-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CITY OF TORONTO, THE COUNTY OF HASTINGS, THE COUNTY OF ESSEX, THE CITY OF HAMILTON, THE CITY OF OTTAWA, THE REGIONAL MUNICIPALITY OF PEEL, THE REGIONAL MUNICIPALITY OF DURHAM, SIENNA SENIOR LIVING INC., S & R NURSING HOMES LTD, ATK CARE INC. carrying on business as RIVER GLEN HAVEN NURSING HOME, ÉLISABETH-BRUYÈRE RESIDENCE, BRUYÈRE CONTINUING CARE INC., RESIDENCE SAINT-LOUIS, CHARTWELL BALLYCLIFFE LONG-TERM CARE RESIDENCE, CHARTWELL WHITE EAGLE LONG-TERM CARE RESIDENCE, CHARTWELL WESTBURY LONG-TERM CARE RESIDENCE, CHARTWELL AURORA LONG-TERM CARE RESIDENCE, CHARTWELL GIBSON LONG-TERM CARE RESIDENCE, DOWNSVIEW LONG-TERM CARE CENTRE LIMITED, ELM GROVE LIVING CENTER INC. carrying on business as ELM GROVE LIVING CENTRE, EXTENDICARE GUILDWOOD, WEST PARK LONG-TERM CARE CENTRE, EXTENDICARE LAURIER MANOR, EXTENDICARE SCARBOROUGH, EXTENDICARE BAYVIEW, CRAIGLEE NURSING HOME, EXTENDICARE BRAMPTON, WEST PARK HEALTH CENTRE, ROYAL ROSE PLACE, MEADOW PARK (LONDON), THE VILLAGE OF HUMBER HEIGHTS, OMNI HEALTHCARE LTD carrying on business as ALMONTE COUNTRY HAVEN, A.R. GOUDIE RETIREMENT INC. carrying on business as PEOPLECARE A.R. GOUDIE KITCHENER, BURTON MANOR, WELLESLEY CENTRAL PLACE, MONTFORT, HUMBER VALLEY TERRACE, FOREST HEIGHTS REVERA, MACKENZIE PLACE, REACHVIEW VILLAGE, HAROLD AND GRACE BAKER CENTRE, CARLINGVIEW MANOR, STONERIDGE MANOR, EAGLE TERRACE, WESTSIDE, MADONNA CARE COMMUNITY, ALTAMONT CARE COMMUNITY, CAMILLA CARE COMMUNITY, OWEN HILL CARE COMMUNITY, WESTON TERRACE CARE COMMUNITY, MIDLAND GARDENS CARE COMMUNITY, WOODBRIDGE VISTA CARE COMMUNITY, VILLA LEONARDO GAMBIN, BRADFORD VALLEY CARE COMMUNITY, ANSON PLACE CARE CENTRE, INA GRAFTON GAGE HOME OF TORONTO carrying on business as INA GRAFTON GAGE HOME OF TORONTO, EATONVILLE CARE CENTRE, HAWTHORNE PLACE CARE, COOKSVILLE CARE CENTRE, ERIN MILLS LODGE NURSING HOME, THE VILLAGE OF ERIN MEADOWS, KENSINGTON VILLAGE, PINECREST NURSING HOME (BOBCAYGEON), COUNTRY VILLAGE HOMES- WOODSLEE, MANOIR MAROCHEL, HERON TERRACE LONG-TERM CARE COMMUNITY, GARDEN COURT NURSING HOME, THE CITY OF TORONTO carrying on business as SEVEN OAKS, THE CITY OF TORONTO carrying on BUSINESS AS LAKESHORE LODGE, THE REGIONAL MUNICIPALITY OF DURHAM carrying on business as HILLSDALE TERRACES, THE CITY OF TORONTO carrying on business as KIPLING ACRES, THE REGIONAL MUNICIPALITY OF PEEL carrying on business as SHERIDAN VILLA, THE REGIONAL MUNICIPALITY OF PEEL carrying on business as PEEL MANOR, THE CITY OF OTTAWA carrying on business as PETER D. CLARK CENTRE, THE CITY OF TORONTO carrying on business as WESBURN MANOR, THE CITY OF HAMILTON DUNDURN PLACE CARE CENTRE, THE COUNTY OF ESSEX carrying on business as SUN PARLOR HOME FOR SENIOR CITIZENS, THE COUNTY OF HASTINGS carrying on business as HASTINGS MANOR HOME FOR THE AGED, THE CITY OF TORONTO carrying on business as CUMMER LODGE, ST. CLAIR O'CONNOR COMMUNITY NURSING HOME, MON SHEONG FOUNDATION carrying on business as MON SHEONG HOME FOR THE AGED, ISABEL AND ARTHUR MEIGHEN MANOR, MARKHAVEN, SHERBOURNE PLACE, VILLA COLOMBO SENIORS CENTRE (VAUGHAN), HELLENIC HOME – SCARBOROUGH, TRINITY VILLAGE CARE CENTRE, GREENWOOD COURT, VISION NURSING HOME, VILLA FORUM, VILLA COLOMBO HOME FOR THE AGED, ST. JOSEPH'S VILLA, SUDBURY, FAITH MANOR NURSING HOME, ST. JOSEPH'S AT FLEMING, THE PERLEY AND RIDEAU VETERANS' HEALTH CENTRE, ST. DEMETRIUS (UKRAINIAN CATHOLIC) DEVELOPMENT CORPORATION; VALLEYVIEW RESIDENCE, PROVIDENCE HEALTHCARE (HOUSE OF PROVIDENCE), VIGOUR GENERAL PARTNER INC., REVERA LONG TERM CARE INC., RIVERA INC., THE ROYALE DEVELOPMENT CORPORATION, THE ROYALE DEVELOPMENT GP CORPORATION, SOUTHBRIDGE HEALTH CARE GP INC, SOUTHBRIDGE CARE HOMES INC, EXTENDICARE (CANADA) INC, SHARON FARMS & ENTERPRISES LIMITED, PROVIDENCE HEALTHCARE, ST. JOSEPH’S VILLA OF SUDBURY INC., ST. PATRICK’S HOME OF OTTAWA, STONERIDGE MANOR, THE JEWISH HOME FOR THE AGED, THE PERLEY AND RIDEAU VETRANS’ HEALTH CENTRE, THE VILLAGE OF HUMBER HEIGHTS, UKRAINIAN CANADIAN CARE CENTRE, VILLA COLOMBO HOMES FOR THE AGED INC., VILLA LEONARDO GAMBIN, WEST PARK HEALTHCARE CENTRE, WOODBRIDGE VISTA CARE COMMUNITY, RYKKA CARE CENTRES LP, VIGOUR LIMITED PARTNERSHIP, ORCHARD VILLA RETIREMENT COMMUNITY, PINECREST NUSRING HOME, SHELBURNE LONG TERM CARE HOME, WEST PARK HEALTH CENTRE carrying on business as WEST PARK HEALTH CENTRE, WESTON TERRACE CARE COMMUNITY, VIEW MOUNT GRACE MANOR, RUYERE CONTINUING CARE INC., BETHANY LODGE, MONG SHEONG FOUNDATION, A.R. GOUDIE RETIREMENT INC, HELLENIC HOME FOR THE AGED, HOLLAND CHRISTIAN HOMES, INC., S&R NURSING HOMES LTD., ST. CLAIR O’CONNOR COMMUNITY INC., THE KENSINGTON HEALTH CENTRE, MEADOW PARK LONG TERM CARE FACILITY, UKRAINIAN CANADIAN CARE CENTRE, UNITY HEALTH TORONTO, GEM HEALTHCARE GROUP LTD., JARLETTE LTD., SCHLEGEL VILLAGES INC., OAKWOOD INC., PRIMACARE LIVING SOLUTIONS INC., MEDLAW CORPORATION LIMITED, CHARTWELL MASTER CARE LP, VILLA CHARITIES FOUNDATION, LUTHERAN HOMES KITCHENER-WATERLOO, THE SALVATION ARMY, THE REKAI CENTRES, TRI-COUNTY MENNONITE HOMES, VISION 74 INC., SHAPARRALL LIMITED, and KRISTUS DARZS LATVIAN HOME carrying on business as KRISTUS DARZS LATVIAN HOME
Defendants
Proceeding under the Class Proceedings Act, 1992
BEFORE: Justice Edward P. Belobaba
COUNSEL: Michael A. Eizenga and Ilan Ishai for the Nisbet Action and Koskie Minsky LLP
Joel P. Rochon and Peter R. Jervis for the Robertson Action and the Rochon Genova Consortium
Christopher Wayland, Joanna Chan and Jeffrey Claydon for the defendant HMQ Ontario
HEARD: April 15, 2021 via Zoom video with additional written submissions
CARRIAGE DECISION
[1] Two class counsel groups are competing for carriage of a proposed class action against the province of Ontario. The $500 million claim relates to the outbreaks of COVID-19 in Ontario long-term care (LTC) homes and focuses on Ontario’s alleged liability for the devastating losses sustained by LTC residents and their families.
[2] The competing actions are at different stages procedurally. The Nisbet Action advanced by Koskie Minsky LLP is ready to proceed. The Robertson Action advanced by the Rochon Genova Consortium (Rochon Genova LLP and three other firms[^1]) still needs to be reconstituted as a stand-alone proceeding. It is currently part of a much larger proposed class action that has been filed against some 96 LTC defendants, including Ontario.
[3] As I explain further below, I am prepared to proceed on the basis that the intended reconstitution of the Robertson claim, including the proposed stand-alone action against Ontario, will shortly be achieved. The decision herein will thus determine the carriage of this action. I will refer to Koskie Minsky as KM and to the Rochon Genova Consortium as RGC.
Background
[4] The staggering COVID-related death toll in Ontario LTC homes generated numerous proposed class actions. The largest was RG’s Robertson Action, an omnibus action against 96 private and public sector defendants including Ontario. Another eight firms filed more targeted class actions that overlapped with the omnibus action but did not include Ontario as a defendant.[^2] KM filed the Nisbet Action focusing only on Ontario.
[5] It was evident from the outset that RG’s sprawling 96-defendant action would have to be reorganized for easier manageability. In my capacity as case management judge, I suggested the following. First, that all counsel should try to come to an agreement and work together. Next, that the omnibus action should be reconstituted into a number of more focused proceedings because different LTC owner/operator groups would probably have different protocols and practices relating to infection prevention and control in their LTC homes. The reconstituted ten or so actions would still be case-managed by me and proceed in parallel (even in lock-step).
[6] I also urged RGC and KM to come to some agreement on their competing actions against Ontario and avoid a carriage battle.
[7] To their credit, RG and all the other class counsel involved, with the exception of KM, agreed to a joint prosecution agreement and steering committee structure. They also agreed to the following:
(i) RGC will move to reconstitute the Robertson claim into 8 to 10 distinct claims, focusing on the corporate, public or non-government entities that own and/or operate the LTC homes and consolidate these claims with the corresponding claims issued by Thomson Rogers, Tyr LLP, Will Davidson LLP, Neinstein LLP and Adair Goldblatt Bieber LLP. Counsel will further request that the consolidated claims be deemed to have been commenced on the earlier of the date that the Robertson claim or the parallel proceeding was commenced.
(ii) RGC will work with co-counsel (as identified below) on the following seven reconstituted actions against the named LTC defendants:
(a) Sienna Senior Living and related entities (RGC plus Thomson Rogers);
(b) Revera Long Term Care Inc. and related entities (RGC plus Thomson Rogers);
(c) Chartwell and related entities (RGC plus Neinstein LLP, Adair Goldblatt Bieber LLP and Will Davidson LLP);
(d) Responsive Group/Rykka and related entities (RGC plus Tyr LLP and Will Davidson LLP);
(e) Extendicare Inc. and related entities (RGC plus Thomson Rogers and Will Davidson LLP);
(f) Southbridge and related entities (RGC plus Will Davidson LLP); and
(g) Schlegel Villages and related entities (RGC plus Will Davidson LLP).
(iii) The remaining 40 or so LTC defendants that are not part of the above-named corporate groups and, instead are owned or operated by municipalities or non-government organizations, will be the focus of two or more proposed class actions advanced by RGC and Will Davidson LLP.
(iv) A Steering Committee representing all counsel involved will provide strategic guidance, work collaboratively on matters common to the parallel proposed class actions, and facilitate communications with the court.
[8] If the proposed reconstitution of the 96-defendant action cannot be achieved on consent, then class counsel will bring motions relying on the wide-ranging powers provided to me as the case-management judge under s. 12 of the Class Proceedings Act.[^3] In my view, this is a reasonable strategy that will likely result in the intended reconstitution.
[9] In any event, KM is not part of the above-described arrangement. Thus, this carriage motion must proceed and the must court decide whether RGC/Robertson (as reconstituted) or KM/Nisbet should be granted carriage of the proposed class action against Ontario.
The applicable law
[10] The primary determinants on a carriage motion are (i) the best interests of the putative class members, (ii) fairness to defendants, and (iii) the policy objectives of the Class Proceedings Act namely, access to justice, judicial economy and behaviour modification.[^4]
[11] Judges have identified a dozen or more factors that may be considered. The factors have been summarized under six heads: (i) the experience and resources of the competing firms; (ii) the proposed plaintiffs and defendants; (iii) the causes of action; (iv) the state of preparation; (v) the overall approach and theory of the case; and (vi) the proposed fee and funding arrangements.[^5]
[12] As is the case in most carriage fights, KM and RGC take each other to task on almost every one of these points. RGC also adds a conflict-of-interest issue for good measure. I advised counsel at the hearing that in my view only one factor was determinative — the markedly different approaches that were being taken by RGC and KM in their proposed class actions against Ontario.
Two very different approaches
[13] The difference is not in the causes of action. Both RGC and KM plead negligence (or gross negligence), breaches of fiduciary duty and violations of section 7 of the Charter of Rights. KM adds a second Charter breach, alleging discrimination based on age under section 15.
[14] The key difference is in the contrasting approaches to Ontario’s liability.
[15] RGC’s approach is the more conventional. They sue Ontario in a proposed stand-alone action but fully expect Ontario to issue third-party claims against the LTC home owners/operators and vice versa. The outcome of the action against Ontario together with the dozen or so (reconstituted) actions against the LTC home owners/operators will potentially expose Ontario (indeed all defendants) to joint and several liability, mitigated by the third-party claims for contribution and indemnity.
[16] KM, on the other hand, is suing Ontario only on its several liability. That is, only for that portion of fault that can be attributed to Ontario. As the Statement of Claim in the Nisbet Action explains:
The Plaintiff’s claim, and the claim of each Class Member, is limited to the amount of the Plaintiff’s or other Class Member’s damages that would be apportioned to the Defendant in accordance with the relative degree of fault that is attributable to the Defendant. The Plaintiff’s claim is against the Defendant for those damages that are attributable to its proportionate degree of fault, and she does not seek, on her own behalf or on behalf of the Class, any damages that are found to be attributable to the fault or negligence of any other person, or for which the Defendant could claim contribution or indemnity.
[17] The reasons for this more focused approach, says KM, are themselves so compelling that they should be determinative of carriage: by suing Ontario only for its several liability and thus precluding any third-party claims, the certification of the proposed class action against Ontario is faster and easier. As is the road to a merits-based determination. And a speedier route to certification and to a decision on the merits is very much in the class members’ best interests.
[18] RGC argues to the contrary and says KM’s “several liability” approach will not mean a faster or easier certification or a speedier route to a decision on the merits. Even worse, says RGC, the end result could well be conflicting liability decisions. None of this would be in the class members’ best interests or fair to Ontario.
Analysis
[19] I can understand KM’s efforts to “Taylorize” the action against Ontario. In Taylor v Canada,[^6] the Court of Appeal made clear that a properly pleaded “several liability” claim (such as KM’s herein) will preclude third-party claims for contribution and indemnity and will allow the trial judge “in the appropriate case” to apportion fault even against concurrent tort-feasors that are not parties to the action.[^7] This “promotes the streamlining of litigation” with “fewer parties at trial, a shorter trial and reduced costs.” [^8]
[20] Moreover, adds KM, by moving expeditiously against Ontario, the many alleged operational failures and deficiencies in the province’s regulation of the LTC industry and its grossly inadequate response to the COVID-19 pandemic in LTC homes will be identified more quickly, timely government action can be taken, and lives can still be saved. In other words, says KM, the “Taylorized” action against Ontario will achieve an important level of behaviour modification faster and more efficiently than under RGC’s more conventional approach.
[21] If KM’s approach could indeed get to a decision on the merits more quickly and in doing so trigger a timely provincial response that could still save some lives, this would probably justify a carriage decision in their favour. But the action against Ontario is not proceeding in a vacuum. It is proceeding in a context that includes another dozen or so class actions against the LTC defendants who will necessarily involve Ontario via third-party proceedings.
[22] In other words, as I explain below, the merits of the LTC/Ontario actions will not be decided at certification or even at KM’s anticipated summary judgment motion. The merits will be decided if and when there are clear liability and damages findings and said liability and damages are apportioned as between Ontario and the LTC defendants.
[23] In my view, there are at least two problems with KM’s approach. The first is the assumption that getting to certification and summary judgment more quickly will prompt Ontario to make immediate LTC changes that can still save lives. The second is the assumption that at the eventual trials (where judicial decisions will be made about the apportionment of liability and damages) the “Taylorized” action against Ontario can be fairly and easily integrated with the LTC proceedings.
[24] Neither of these assumptions are sufficiently grounded in reality. The perceived advantage of the “several liability” approach is, at best, short-lived and, at worst, non-existent. In any event, even if there is an early-stage advantage to “Taylorization”, in my view it is overtaken by the disadvantages that will materialize in later-stage litigation — disadvantages that are not in the best interests of the class, unfair to the defendant, and add nothing except unnecessary complexity.
[25] I will explain these points in turn.
(1) There is no early-stage advantage in a “Taylorized” action
[26] Let’s assume I grant carriage to KM/Nisbet. Even if Ontario is precluded from issuing third-party claims against the LTC defendants, the province is right to argue that as a matter of fairness, it should at least be entitled to document production and discovery rights as against the other potential joint tort-feasors, the LTC defendants. Otherwise, says Ontario, it will be unfairly prejudiced in its defence of the main claim against it.
[27] This very point was considered by Laskin J.A. writing for the Court of Appeal in Taylor. Laskin J.A. acknowledged that the defendant’s fairness-based request for this very kind of procedural protection “seems to have merit” and concluded that “it is a proper matter to be considered by the judge case-managing the class action.”[^9]
[28] As the judge case-managing these class actions, I would most likely provide this procedural protection to Ontario as a matter of fairness and I would order the third-party document productions and discoveries.
[29] KM concedes that “at the appropriate juncture” Ontario may well be granted such third-party document production and discovery rights. But this third-party dimension is not needed, says KM, for either certification or its proposed summary judgment motion.
[30] I agree with KM. There is no need to provide these procedural protections for the certification motion or even the anticipated summary judgment motion because the focus at these early-stage motions are solely the actions or inactions of Ontario — the systemic failures and deficiencies and the alleged breaches by the province of its duties of care, its fiduciary duty and its obligations under the Charter of Rights. None of this requires productions from or discovery of any LTC defendants.
[31] It is only later, when liability and damages as between Ontario and the LTC defendants must be determined and apportioned (if the class prevails) that this court would consider Ontario’s request and add the third-party dimension.
[32] I am therefore prepared to accept KM’s roadmap for early-stage litigation. There is a good chance that the proposed common issues or PCIs (about duty and standard of care, fiduciary duty and breaches of the Charter) will be certified and that their summary adjudication will advance the litigation to some extent. I say “to some extent” because the determination of a duty of care or fiduciary duty will not decide Ontario’s liability. Causation and loss would still need to be litigated.
[33] As for the Charter claims, as Ontario correctly points out, compensatory Charter damages awards would probably have to await the tort or fiduciary duty awards because damages must be quantified in common and then apportioned in common, so as to avoid inconsistent quanta, inadequate recovery, or double recovery. And it is almost a certainty that any finding of a Charter violation or a Charter-related damages award, even an “base award” to every class member, would be appealed by the defendant.
[34] The most that can be said is that KM’s early-stage summary judgment motion can be heard without the complexities of third-party production or discovery. This brings us to the professed behavioural modification advantage.
[35] KM submits that an early-stage determination of the PCIs could have an immediate and positive impact in terms of behaviour modification. That is, a favorable summary judgment decision could well prompt timely provincial changes in the LTC system and lives could still be saved.
[36] This is a noble objective. But is it really achievable in the context of this particular class proceeding?
[37] Last week two major reports directly on point were released to the public. The first, a 104-page report of Ontario’s Auditor General titled, COVID-19 Preparedness and Management: Special Report on Pandemic Readiness and Response in Long-Term Care and the second, a 322-page final report of Ontario’s Long-Term Care COVID-19 Commission. Widely reported in the media, both studies were highly critical of the provincial government and its role and responsibility in the spread of COVID-19 in LTC homes. The two reports detailed the province’s many failures in this regard and listed dozens of recommendations for immediate and longer-term action. Both reports concluded that if even some of these recommendations were implemented in a timely fashion, lives could still be saved.
[38] I note from news interviews and media reports that the Minister of Long-Term Care has promised to take action in some of the key areas of concern.[^10] Whether or not such action is taken remains to be seen. But the point for the purposes of this carriage decision is this. If the specific findings and recommendations in these two reports do not prompt a provincial response that could arguably save LTC lives as this pandemic continues, it is unlikely that generalized judicial findings about duty of care or fiduciary obligation in a summary judgment decision that is still more than a year away (and even longer with expected appeals) will somehow achieve this objective. A multi-year class action litigation with novel issues and almost guaranteed appeals is not likely to generate early-stage behaviour modification.
[39] Although well-intentioned, KM’s assumption that their “Taylorized” action against Ontario will have a more immediate and positive impact is an assumption that is not supported by credible evidence.
[40] In short, there is no demonstrated advantage to “Taylorization” in early-stage litigation. And, in any event, any such advantage is outweighed by the significant problems that would materialize in the later stages of this litigation.
(2) The disadvantages in later-stage litigation
[41] Both sides agree that the adjudication of the claims against Ontario and the LTC owner/operators will ultimately require the apportionment of the defendants’ relative degree of fault in both sets of proceedings, regardless of whether the claims against Ontario are for joint or several liability.
[42] If KM is granted carriage, the litigation landscape following its summary judgment motion will look like this. RGC and their co-counsel will be advancing the dozen or so class actions against the owner-grouped LTC defendants. Many, and probably all, of the LTC defendants will third-party Ontario, as is their right under s. 5 of the Negligence Act.[^11] Ontario, in turn, will likely counter-claim. Meanwhile, KM will be advancing the “Taylorized” action against Ontario. As already noted, I will probably grant Ontario’s motion for third-party productions and discoveries involving the LTC defendants.
[43] No one can predict how the LTC actions and the “Taylorized” action against Ontario will actually unfold. This is novel legal terrain. The LTC defendants will be relying on the new “gross negligence” standard.[^12] Ontario will try to seek shelter under the recently amended Crown liability statute.[^13] However, if KM is granted carriage of its “Taylorized” action against Ontario, some predictions about later-stage litigation can be made with a reasonable degree of certainty.
[44] Not in the class members’ best interests. If there is merit in the plaintiffs’ claims, it is RGC’s approach — joint and several liability against all defendants including Ontario — that would best protect class members’ interests in achieving fair and equitable compensation, ideally full recovery for all losses sustained. Under KM’s approach there is more risk. For example, if a particular LTC owner/operator decides not to third-party Ontario, or turns out to be insolvent or otherwise judgment-proof, Ontario would still be jointly liable under RGC’s approach and the affected class members’ interests would be fully protected. Not so, if the claim against Ontario is limited to “several liability”. There could well be pockets of unrecovered loss.
[45] This alone is enough to decide the carriage motion. There is no good reason why class members should be denied the broad brush of joint and several liability.
[46] Unfair to the defendant. If KM is granted carriage, Ontario would not only have to defend the LTC third-party claims (in the dozen or so LTC class actions) but simultaneously defend the “Taylorized” action. The court-ordered third-party production and discovery procedure would be difficult to integrate with the actual third-party proceedings in the LTC actions. Further, this court has recognized that while judges can apportion the “notional share” of liability of “missing” or “absent” defendants, such determination risks unfairness and potential “evidentiary gaps”.[^14]
[47] There is also the possibility of conflicting decisions. If the actions are not heard together (and the LTC defendants may well have reasons to oppose a de facto consolidation), there could be a dozen or more judges making different apportionment decisions in the LTC actions, and yet another judge making the apportionment decision in the “Taylorized” action. And even if the LTC actions are all heard together by the same judge, there is nothing to preclude the judge hearing the separate “Taylorized” action from coming to a very different decision relating to the scope or content of Ontario’s “several liability”.
[48] KM argues that “Ontario's system-wide degree of fault will be a set percentage for all homes”. However, KM provides no basis for this bald assertion. Given the very real potential for differing fact and fault patterns as between a particular LTC defendant and Ontario, the apportionment determinations could indeed be different, one from the other and different still from the determination in the “Taylorized” action.
[49] KM suggests that the same judge could hear the LTC Actions and the Nisbet Action against Ontario. This is certainly possible. But a mega-trial of these proportions may well be resisted by the LTC defendants. And even if achieved, the contrasting pleadings would mean that the LTC defendants would be exposed to joint and several liability and the Ontario defendant to only several liability. Ontario would be defending the LTC third-party claims on the broader standard and the action against it on the much narrower standard. For no good reason.
[50] None of this is fair to the defendant and only adds unnecessary complexity.
[51] Too many cooks. KM’s “Taylorized” action against Ontario would mean that the apportionment of liability and damages (if the class prevails) would proceed via third-party vehicles with two sets of class counsel — one directing the litigation against the LTC defendants and the other directing the litigation against Ontario. It is unlikely that KM and the RGC Steering Committee will be able to achieve the same level of co-operation as would be the case if only one co-ordinator (the RGC Steering Committee) was in charge of the plaintiffs’ side of the inter-related proceedings. KM/Nisbet adds too many cooks, again for no good reason.
[52] In sum, KM’s “several liability” approach achieves no advantage in early-stage litigation and generates significant disadvantages in later-stage litigation.
No other factors of any significance
[53] As already noted, it is KM’s “Taylorized” approach that is the determinative factor. None of the other factors debated by counsel play any significant role in this carriage decision.
[54] For example, the fact that RGC’s omnibus action still needs to be reconstituted is of little import. Given the s. 12 powers available to the case management judge, this reconstitution can be achieved relatively quickly with due regard, of course, to any fairness issues that may be raised by the defendants.
[55] The fact that RGC may fail in their effort to expand the class definition to include “visitors and volunteers” given the case law on “duty of care” is also of minimal significance in the carriage analysis. Almost the entirety of the claim involves LTC residents and their families.
[56] I also reject KM’s suggestion that RGC and their co-counsel lack sufficient “resources” to take on both the LTC actions and the action against Ontario. It is important to remember that the complete RGC legal group consists of nine (9) experienced class action and personal injury firms with 30 hands-on lawyers at the ready. In my view, RGC and their co-counsel have sufficient resources to take on the tasks at hand.
[57] The over-arching observation is that none of these additional factors advanced by KM are sufficient by themselves or in combination to dislodge “Taylorization” as the determining factor.
[58] The additional factors advanced by RGC against KM, such as KM’s alleged “conflict of interest” or its failure to date to secure third-party funding, need no discussion. They are obviously rendered moot given that RGC has prevailed on this carriage motion.
Conclusion
[59] RGC/Robertson should be granted carriage of the action against Ontario and the KM/Nisbet action should be stayed. There is no good reason to decide otherwise.
[60] I must confess that I come to this decision with some regret. KM’s class action group has impressive experience litigating Crown immunity issues and the related procedural hurdles that the action against Ontario will encounter. It would obviously have been in the class members’ best interests if the KM and RGC legal groups could have agreed to work together. Alas, for reasons that escape my understanding, no such agreement was achieved.
Disposition
[61] Carriage of the proposed class action against the province of Ontario is granted to the plaintiffs in the Robertson Action. The Rochon Genova Consortium is appointed class counsel. The Nisbet Action against Ontario is stayed.
[62] Order to go accordingly.
[63] No costs are sought because none are awarded on carriage motions.
Signed: Justice Edward P. Belobaba
Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Judgment [Order] need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court.
Date: May 5, 2021
[^1]: The Rochon Genova Consortium consists of Rochon Genova LLP, Himelfarb Proszanski, Cerise Latibeaudiere Law Professional Corporation and Diamond & Diamond.
[^2]: Three of the eight firms — Himelfarb Proszanski, Cerise Latibeaudiere Law Professional Corporation and Diamond & Diamond —are part of the Rochon Genova Consortium. The five remaining firms — Thomson Rogers, Tyr LLP, Will Davidson LLP, Neinstein LLP and Adair Goldblatt Bieber LLP — are cooperating with the Rochon Genova Consortium under a Steering Committee structure. More about this below
[^3]: Class Proceedings Act, 1992, S.O. 1992, c. 6. Please note that these proceedings fall under the “old” CPA because they were commenced before October 1, 2020.
[^4]: Mancinelli v. Barrack Gold Corporation, 2016 ONCA 571, at para 13.
[^5]: MacBrayne v. LifeLabs Inc., 2020 ONSC 2674, at para. 9.
[^6]: Taylor v. Canada (Health) 2009 ONCA 487. No third-party claims can issue for contribution and indemnity because it is only the (several) liability of the defendant that is in play.
[^7]: Ibid., at para. 27.
[^8]: Ibid., at paras. 28 and 29.
[^9]: Ibid., at para. 32.
[^10]: “Long-Term Care Minister Merrilee Fullerton pledged on Monday [May 3] to adopt many of the report’s recommendations … She said her Ministry also plans to improve its inspection process, address a chronic shortage by hiring more personal support workers and build new homes ….”: Globe & Mail (May 4, 2021) at A-4.
[^11]: Negligence Act, R.S.O. 1990, c. N.1.
[^12]: Supporting Ontario's Recovery Act, 2020, S.O. 2020, c. 26, Sch. 1, s. 2(1).
[^13]: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 1.
[^14]: Toronto Hydro v. Gonte and City of Toronto, 2018 ONSC 431, at paras. 51-55.