Court File and Parties

Court File No.: CV-24-00719487-00CP CV-20-00645495-00CP CV-22-684319-00CP CV-20-640016-00CP CV-20-640883-00CP CV-22-00688509-00CP CV-22-00687579-0000 CV-20-00644726-00CP

Date: 2024-12-19

Superior Court of Justice - Ontario

Re: Pugliese et al. v. Chartwell Retirement Residences et al. (CV-20-640771-00CP) Hannon et al. v. Revera Inc. et al. (CV-20-00645495-00CP) Balausiak et al. v. Extendicare Inc. et al. (CV-22-684319-00CP) Brough et al. v. Responsive Group Inc. (CV-20-640016-00CP) Robertson et al. v. Sienna Senior Living Inc. et al. (CV-20-640883-00CP) Do v. Schlegel Villages Inc. (CV-22-00688509-00CP) McVeigh et al. v. City of Toronto et al. (CV-22-00687579-0000) McDermott et al. v. ATK Care et al. (CV-20-00644726-00CP)

Before: Justice E.M. Morgan

Counsel: Joel Rochon and Golnaz Nayerahmadi, for the Plaintiffs Nada Nicola-Howorth, Deborah Berlach, and Elizabeth Bowker, for the Defendants

Heard: December 6, 2024

Notice Approval

[1] The Plaintiffs bring in this omnibus motion pursuant to sections 12, 17, 19, and 29 of the Class Proceedings Act, 1992, SO 1992, c.6 (“CPA”) for approval of the proposed notices in respect of my certification decision: Pugliese v. Chartwell, 2024 ONSC 1135 (“Certification Decision”).

[2] It is fair to say that the results set out in the Certification Decision were complicated, which has made the notice issues complicated as well. One of the actions was certified against all Defendants therein, six of the actions were certified against only some of the Defendants therein, and two of the actions were not certified at all but discontinuance was authorized without prejudice to those claims being reconstituted and commenced again under certain conditions.

[3] For ease of reference, I reproduce here what might be called the ‘structural’ paragraphs in the final “Disposition” portion of the Certification Decision:

[292] Pugliese v. Chartwell (CV-20-00640771-00CP) is certified as against all Defendants except those set out in para. 189(a) above, against whom the certification motion is dismissed.

[293] Hannon v. Revera (CV-20 00645495-00CP) is certified as against all Defendants except those set out in para. 189(b) above, against whom the certification motion is dismissed.

[294] Balausiak v. Extendicare (CV-22-00684319-00CP) is certified as against all Defendants except those set out in para. 189(c) above, against whom the certification motion is dismissed.

[295] Brough v. Responsive (CV-20-00640016-00CP) is certified as against all Defendants except those set out in para. 189(d) above, against whom the certification motion is dismissed.

[296] Do v. Schlegel (CV-22-00688509-00CP) is certified as against all Defendants.

[297] Robertson v. Sienna (CV-20-00640883-00CP) is certified as against all Defendants except those set out in para. 189(e) above, against whom the certification motion is dismissed.

[298] McVeigh v. Toronto (CV-22-00687579-0000) and McDermott v. ATK (CV-20-00644726-00CP) are not certified as class actions. The motions against them are dismissed. The Plaintiffs (or others) are at liberty to re-issue the claims on a disaggregated basis as discussed in paras. 99-102 above.

[299] Plaintiffs are at liberty to discontinue, without costs, any of the actions as against any of the Defendants for whom the present certification motion is dismissed, and to issue a new standalone action against any such Defendant, provided that a representative Plaintiff is named for any such new action…

[4] Counsel for the Plaintiffs have had extensive negotiations with counsel for the Defendants – including the Defendants against which the action has been certified and those against which the certification motion was dismissed. They have not settled on wording that is satisfactory to all parties.

[5] To the extent that there are disagreements over words or phrases, I would ask all parties to approach the notice drafting task in a spirit of compromise. There are too many wording quibbles for me to adjudicate, and it will be a waste of judicial time and resources for me to do so.

[6] To cite just one example that I flagged for counsel at the hearing, Plaintiffs’ counsel want the notices to reference the impacted residents of long term care homes and their “loved ones”, whereas Defendants’ counsel want the notices to reference the impacted residents and their “family members”. I have little desire to author a learned decision about the difference between those two categories, although I do acknowledge that they represent overlapping but non-concentric circles; one can love a stranger and hate a family member, or many other variants in between. I leave it to counsel to debate whether it’s family ties that matter, or whether all you need is love to be alerted to a claim.

[7] Turning to the form of notice to be provided by class counsel, the Plaintiffs’ proposal divides the task into two forms: a Short Form Notice (“SFN”) to be published in various traditional media and digital media described by the Notice Plan (“Indirect Notice”), a press release to be issued by class counsel, and a Long Form Notice (“LFN”) to be posted on a website established by class counsel specifically for these cases and to be sent by direct email or regular mail to all class members (“Direct Notice”). Although they take issue with the wording of these notices, the Defendants do not take issue with the publishing of a SFN in the media or the posting of a LFN on class counsel’s devoted website.

[8] The controversy here, and the one issue that needs to be addressed in principle rather than in detail, is that of Indirect Notice vs. Direct Notice.

[9] For the six corporate-owned actions (Chartwell, Revera, Extendicare, Responsive, Schlegel, and Sienna), class counsel propose Indirect Notice for all class members, together with Indirect Notice to all class members that can be identified in the corporate actions who reside in homes administered by Defendants against whom certification was denied and against whom the actions will be discontinued. That means, in effect, that Direct Notice would be provided to class members associated with:

(a) 4 homes in the Chartwell action (and not the 21 homes owned/licensed by the corporate defendants against whom certification was granted);

(b) 35 homes in the Extendicare action (and not the 68 homes owned/licensed by the corporate defendants against whom certification was granted);

(c) 11 homes in the Responsive action (and not the 20 homes owned/licensed by the corporate defendants against whom certification was granted);

(d) 9 homes in the Revera action (and not the 52 homes owned/licensed by the corporate defendants against whom certification was granted); and

(e) 3 homes in the Sienna action (and not the 35 homes owned/licensed by the corporate defendants against whom certification was granted).

[10] For the two actions without over-arching corporate ownership, and in which certification was denied as against all Defendants therein (McVeigh and McDermott), class counsel propose Direct Notice of the actions’ discontinuance be sent to all putative class members. The Notice of Discontinuance, as proposed by class counsel, advises not only of the discontinuance of the McVeigh and McDermott actions, but of the fact that those actions may be reconstituted and brought back in different form. To that end, it requests that anyone in those putative classes interested in making a claim in a new action based on the same pandemic-related harms as the discontinued actions contact class counsel.

[11] In order to effect the proposed Direct Notice, the Plaintiffs seek production orders from the Defendants, as follows:

Directing that within thirty (30) days from the date of this Order, the Defendants in the Discontinued Actions shall deliver to the Notice Administrator:

a) an electronic list of putative Resident Class Members who contracted COVID-19 or had symptoms, such list to include the names, last known email and postal address of the Resident or, where the Resident is deceased or lacks legal capacity, the names, last known email and postal address of the Resident’s legal representative (Executor, Estate Administrator, person with Power of Attorney, as the case may be); and

b) where available in electronic format, a list of all putative Class Members who were Visitors of their LTC homes during the Class Period and who provided notification to the Defendant(s) and/or their LTC homes that they had contracted COVID-19 subsequent to attending at their LTC home(s), such list to include, as available, the names, last known email and/or postal address of the Visitor or, where the Visitor is deceased or lacks legal capacity, the names, last known email and postal address of the Visitor or related Resident’s legal representative (Executor, Estate Administrator, person with Power of Attorney, as the case may be), to the extent this information is available to the Defendants;

Directing that within thirty (30) days from the date of this Order, the Defendants who were excluded from the Certified Actions, shall deliver to the Notice Administrator:

a) an electronic list of putative Resident Class Members who contracted COVID-19 or had symptoms, such list to include the names, last known email and postal address of the Resident or, where the Resident is deceased or lacks legal capacity, the names, last known email and postal address of the Resident’s legal representative (Executor, Estate Administrator, person with Power of Attorney, as the case may be); and

b) where available in electronic format, a list of all putative Class Members who were Visitors to their LTC homes during the Class Period and who notified the Defendants and/or their LTC homes that they had contracted COVID-19 subsequent to attending their LTC home(s), such list to include, as available, the names, last known email and postal address of the Visitor or, where the Visitor is deceased or lacks legal capacity, the names, last known email and/or postal address of the Visitor or related Resident’s legal representative (Executor, Estate Administrator, person with Power of Attorney, as the case may be), to the extent this information is electronically available.

[12] Class counsel support the request for Direct Notice with arguments that it is the most effective, and therefore the preferable form of notice. They point out that the Supreme Court of Canada in Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 SCR 549, at para. 43, instructed that, “In a class action, it is important to be able to convey the necessary information to members. Although it does not have to be shown that each member was actually informed, the way the notice procedure is designed must make it likely that the information will reach the intended recipients.”

[13] The Plaintiff’s record also contains the affidavit of the Plaintiff’s Notice Plan consultant, Jennifer Dewer, who I acknowledge has substantial experience and expertise in designing and administering class action settlements. Ms. Dewer deposes that Direct Notice is always the preferred form of notice. As she puts it, “Direct Notice is the best form of notice available, and is not easily replicated by the use of alternative communications strategies.”

[14] Of course, I agree with Ms. Dewer that Direct Notice is generally better than Indirect Notice. But, with the greatest of respect, that is like saying a Rolls Royce is better than a minivan or an e-bike. The question is not which one is better, but which vehicle is more appropriate for the courier to drive.

[15] Under the circumstances, the question is particularly acute. Class counsel emphasize the ease and cost savings of sending Direct Notices. They point to the evidence demonstrating that media advertisement is more expensive than direct communication with putative class members, the latter being mostly done by email and thus saving even the cost of postage.

[16] Defendants’ counsel, on the other hand, emphasize the workload and cost burden of preparing Direct Notices. Those costs are built into the production order sought by the Plaintiffs and outlined in their Notice of Motion set out above. Defendants point out that the information requested by the Plaintiffs to put Direct Notice into effect includes the contact information of residents, visitors, and family members of the Defendants’ long term care homes who tested positive for COVID-19, as well as those who displayed symptoms of COVID-19 during the class period. In many cases, this information is either not available or only available through great expenditure of time and effort.

[17] Affiants on behalf of the Responsive and Revera Defendants, for example, depose that line lists contained in COVID-19 reports to public health units varied from district to district across the province, and are at best only partially complete. The Defendants in the corporate actions summarize the information-gathering task in their collective factum:

Whether or not a resident displayed symptoms, however, cannot be determined from analysis of line lists. Rather, it would require the review of each and every resident’s file to determine whether they displayed what are now known (but potentially unknown at the time) to be COVID-19 symptoms.

Similarly, any contact information beyond a resident’s name and room number would require a search into a resident’s file. Names and contact information for the resident’s Executor, Estate Administrator, and/or Power of Attorney, if they even exist, are not included on the line lists.

This hunt for personal information…would require the Defendants to take part in a highly fact-specific investigation on a resident-by-resident basis…

[18] Class counsel point out that in Banman v. Ontario, Court File CV-21-00674148-00CP, order dated September 29, 2024, in the context of a notice approval order for a certified case alleging abusive psychiatric treatment at an Ontario hospital/detention centre, Justice Akbarali required the Ministry of Health to provide class counsel with the last known address of all class members from OHIP files kept by the Ministry. Similarly, in Nardi v. Sorin Group Deutschland GMBH, 2022 ONSC 4126, Justice Perell ordered a number of hospitals to produce patient lists to class counsel in a certified action involving claims of injury due to contaminated medical equipment. Again, in Carcillo v. Canadian Hockey League, 2023 ONSC 4983, as an epilogue to a ruling denying certification without prejudice to re-structured follow-up actions, Justice Perell ordered the teams in a junior hockey league to produce to class counsel the names and contact information of all players on their rosters.

[19] It is class counsel’s view that ordering the Defendants to produce identifying information in respect of the class members (in the certified actions) and putative class members (in the discontinued actions) is within the discretionary powers of the court under sections 12 and 19(1) of the CPA. Moreover, they submit that a production order issued as an aid to notice approval, such as the order sought by the Plaintiff here, is relatively commonplace in class action practice.

[20] I do not know whether I would characterize production rulings as commonplace. But what does not appear to happen frequently, if ever, is the granting of a production order against a defendant where that defendant has both succeeded in defeating the motion for certification and objects to the production being sought.

[21] In Banman and Nardi, certification had already been granted and the defendants either consented or raised no objection to producing patient lists which in any case they already had in hand. In Carcillo, it is unclear whether the defendants opposed the production order, but what is clear is that the order placed no particular burden on them; all they had to do was to send class counsel a list of players on their teams.

[22] By contrast, the Defendants before me argue strenuously that the production being sought imposes on them a substantial burden of time, effort, and expense. As noted above, the affidavits submitted by the Defendants establish that this will indeed be the case. Class counsel counters by stressing the importance of notice in ensuring that class members can pursue their rights. But what class counsel overlooks in that argument is that Direct Notice is being proposed here where certification was denied. The people to whom the notice would be sent, and whose information the Defendants are being asked to produce, are not people who form a class; they are people who claimed to form a class but who lost that argument. They have a right to somehow be advised of that ruling, but they have lost the right to impose a significant cost burden on the parties that they have unsuccessfully sued.

[23] In the corporate actions, Direct Notice for a portion of the class seems redundant and wasteful. Class counsel’s proposal is that the entire class will get Indirect Notice, while the class members in those actions who were resident in homes run by discontinued Defendants will also get Direct Notice. It is difficult to discern the reason for thinking that Indirect Notice will suffice for one group but not the other, in circumstances where the former actually encompasses the latter.

[24] In the McVeigh and McDermott actions, all of the putative class members are in the same category – i.e. people who claimed to have a class-wide claim against the Defendants but who, in fact, do not. As already indicated, the rationale for putting the Defendants in those actions to any expense is even more strained. I say this with great respect for the efforts of class counsel and for the plight of those who suffered in municipal and independently owned long term care homes during the COVID-19 pandemic, but I am not inclined to exercise my discretion in the way that they seek. Defendants should not be made to pay heavily for the privilege of having been unsuccessfully sued.

[25] Finally, it behooves me to point out that the entire debate over the burden of providing class counsel with the information required for Direct Notice is all too familiar. In the Certification Decision, I described in some detail the evidence from one of the many Defendants – the City of Durham – as to the tremendous burden it would impose to collect the very same information that the Plaintiffs seek here. The extensive information about the putative class members was at that stage sought by Plaintiffs’ counsel in order to help solve the so-called Ragoonanan problem – i.e. the existence of a potential class but without a representative plaintiff: Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 51 OR (3d) 603 (SCJ); Hughes v. Sunbeam Corporation (Canada) Ltd. (2002), 61 OR (3d) 433, at para. 18 (CA).

[26] Courts across the country have expressed the view that notice following a certification motion cannot amount to a form of “advertisement for class counsel’s firm”: Bartram et al v. GlaxoSmithKline Inc., 2015 BCSC 315, at para. 8. Putting it another way, the approved notice plan cannot “[amount] to what, in my view, is the court countenancing an opportunity for plaintiffs’ class counsel to solicit business”: Walls et al. v. Bayer Inc., 2007 MBQB 131, at para. 37.

[27] Along those lines, the purpose of notice under section 19(1) of the CPA is not “for the recruitment of alternate representative plaintiffs when it turns out that the proposed representative plaintiff has no cause of action”: Johnston v. State Farm Insurance Co., at para. 6 (SCJ). In short, the notice to putative class members, especially in respect of those actions or claims being discontinued, cannot be used as a vehicle to recruit new representative plaintiffs. Prior to certification, and other than casting about for a new representative plaintiff, there is little reason for Plaintiffs’ counsel to have a list of or to make individual contact with putative class members.

[28] In arguing for the Certification Decision, class counsel sought the information about the putative class members for the express purpose of finding representative plaintiffs for each of the claims in which they were missing. In the present motion, class counsel seeks the information about the putative class members for the stated purpose of giving notice to people who so far have no claim but who may resurrect one down the road if representative plaintiffs can be found. The distinction between those two efforts is razor thin; in fact, it is all but invisible.

[29] In my view, the argument for Direct Notice and the attendant production it requires is, in essence, a revisiting of an issue which the Plaintiffs already litigated and lost. Raising issues at the notice stage that have already been subject to adjudication at the certification stage can be “manifestly unfair to a party to the litigation”, as the Court of Appeal put it in Commercial Real Estate Group v. Coles, at para. 55.

[30] In fact, it can amount to an abuse of process: Fanshawe v. LG Phillips, 2017 ONSC 2763, at para. 20. In any case, allowing this kind of repetitive argument to prevail would risk having the court “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice:” Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 37.

[31] Accordingly, there shall be no Direct Notices authorized in respect of any of these actions. Rather, there shall be Indirect Notices in respect of all certifications and discontinuances resulting from my Certification Decision. To that effect, I approve the Alternative Communications Strategy as described in the Notice Plan submitted by class counsel.

[32] I would ask counsel for all parties to carefully review any disagreements in wording of the notices, advertisements, press release, and other communications that make up the Alternative Communications Strategy version of the Notice Plan, and to make every effort to compromise and agree on wording. To the extent that any differences cannot be resolved, I am, if necessary, open to addressing them either at a follow-up case conference or in writing.

[33] It is apparent from the Alternative Communications Strategy that relying on Indirect Notice, rather than a combination of Indirect and Direct Notice, will increase the cost of Indirect Notice. Those increased expenditures enure to benefit of the Plaintiffs, not the Defendants. As already discussed above, I am not in favour of making parties who succeeded in a motion pay a steep price as a result of that success.

[34] I therefore direct that the 75% of the costs associated with the implementation of the Notice Plan and its Alternative Communications Strategy (including all Indirect Notices, advertisements, press releases, and other communications), as they relate to the Chartwell, Revera, Extendicare, Responsive, Schlegel, and Sienna actions, be borne by the Plaintiffs in those actions. I further direct that 25% of the costs be borne by the Defendants in those actions.

[35] In addition, I direct that all costs associated with the implementation of the Notice Plan and its Alternative Communications Strategy (including all notices, advertisements, press releases, and other communications), as they relate to the McVeigh and McDermott actions, shall be borne solely by the Plaintiffs in those actions.

Date: December 19, 2024 Morgan J.