CITATION: Bobyk v. Oxford Living, LLC, 2026 ONSC 2460 COURT FILE NO.: CV-23-00014523-00CP DATE: 20260427
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IRENE BOBYK, as litigation administrator for THE ESTATE OF ROSE BOBYK-SEMBAY, deceased, and IRENE BOBYK, personally, Plaintiffs
– and –
OXFORD LIVING, LLC, OXFORD SC LUNDY NIAGARA INC. and OXFORD SC MASTER LP c.o.b. as LUNDY MANOR RETIREMENT RESIDENCE, Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Joel Rochon, Annelis K. Thorsen, Golnaz Nayerahmadi, Pritpal Mann, Gary R. Will, and Gordon A. Marsden, for the Plaintiffs
Michael Best, for the Defendants
HEARD: Motion in writing
CERTIFICATION MOTION
Certification Motion
1The Plaintiffs bring this motion, on consent of the Defendants, for an Order certifying the action pursuant to section 5(1) of the Class Proceedings Act, 1992,S.O. 1992, c. 6 (“CPA”).
2The Plaintiffs propose appointing Rose Bobyk-Sembay, deceased, by her estate litigation administrator Irene Bobyk, as representative Plaintiff, and appointing Plaintiffs’ counsel herein as class counsel, for the following classes of persons:
a) all persons who were residents in, or received care at, Lundy Manor Retirement Residence (“Lundy Manor”) between January 25, 2020 to May 5, 2023, or, where the person is deceased, the estate of that person(“Residents”, “Resident Class” and “Resident Class Members”);
b) all persons who were visitors at Lundy Manor between January 25, 2020 to May 5, 2023, or where the person deceased, the estate of that person (“Visitors”, “Visitor Class” and “Visitor Class Members”); and
c) all persons including, but not limited to, spouses, children, parents, and other relatives who, on account of a personal relationship to any one or more Resident Class Members and Visitor Class Members, have a derivative claim for damages under s. 61 of the Family Law Act, R.S.O 1990, c. F.3 (“Family Class” and “Family Class Members”).
3The proposed common issues are:
Gross Negligence
(1) Did the Defendants owe a duty of care to the members of the Classes related to COVID-19 outbreaks Lundy Manor?
(2) If the answer to 1) is “yes”, what was the applicable standard of care?
(3) If the answer to 1) is “yes”, did the Defendants breach the duty of care they owed to all or any of the members of the Classes? If so, when and how did the breach(es) occur?
(4) If the answer to 3) is “yes”, did any or all of the Defendants’ breach(es) amount to gross negligence?
Causation
(5) If the answer to 4) is “yes”, did any or all of the Defendants’ breaches cause or contribute to the harm(s) suffered and/or losses incurred by the Class Members?
Damages and Remedies
(6) Are the members of the Classes entitled to general damages arising from the Defendants’ gross negligence?
(7) Are the Class Members entitled to disgorgement of the benefits and profits enjoyed by the Defendants as a result of their breaches?
(8) Can the Court make an aggregate assessment of all or some of the damages suffered by the Class Members pursuant to sections 24 and 25 of
the CPA?
(9) Does the conduct of the Defendants warrant an award of aggravated, exemplary and/or punitive damages, and if so, in what amount?
4The action alleges that the Defendants were grossly negligent in their response to COVID-19 in Lundy Manor, a retirement home owned, licensed and operated by the Defendants. The Plaintiffs allege that, as a result of the Defendants’ gross negligence, Lundy Manor experienced at least one outbreak of COVID-19 from March 30, 2020 to April 21, 2020, which resulted in at least 41 resident COVID-19 infections and at least 15 residents passing away from COVID-19.
5The Plaintiffs represent classes of persons who are alleged to have suffered serious and preventable harm as a result of the Defendants’ delayed, ad hoc, and inadequate response to the
COVID-19 pandemic in Lundy Manor. These classes mirror the class definitions certified as against other long term care homes in Pugliese v. Chartwell, 2024 ONSC 1135. The class period begins on January 25, 2020 and ends on May 5, 2023, the date that the Public Health Agency of Canada issued a statement that the World Health Organization announced that COVID-19 no longer constitutes a Public Health Emergency of International Concern.
6It is alleged in the claim that, despite widespread knowledge of the importance of the precautionary principle in addressing respiratory outbreaks, including COVID-19, the Defendants acted recklessly and arbitrarily in responding to COVID-19 during the class period. It is alleged that the Defendants’ delayed, piecemeal, and grossly deficient acts and omissions constituted a serious and marked departure from the standard of care with respect to Infection Prevention and Control (“IPAC”) and delivery of care to elderly and vulnerable populations.
7It is also alleged that long-standing chronic deficiencies relating to the outdated, physically neglected and over-crowded facility, inadequate IPAC training and protocols, systematic failures to inspect and oversee the retirement home’s compliance with applicable regulatory, legal and industry standards, and under-staffing, among others, made Lundy Manor ripe for outbreaks.
8Further, the Plaintiffs allege that despite recognizing their obligations to follow appropriate guidance and best practices to prevent the exposure of their elderly residents to infection and death, the Defendants adopted reactive, rather than proactive, delayed, and entirely deficient IPAC measures in Lundy Manor that failed to reflect the state of knowledge of the retirement home sector and the medical community regarding the nature of COVID-19 and its risks to vulnerable populations, particularly the elderly.
9The Fresh As Amended Statement of Claim states that the COVID-19 outbreaks in Lundy Manor were preventable, and lives would have been saved, had the Defendants not breached their common law obligations to the Class Members in the years preceding and during the pandemic.
10On July 4, 2025, the Plaintiffs delivered their motion record, including the expert report of Dr. Dick Zoutman, sworn July 4, 2024. Dr. Zoutman opined that the outbreaks of COVID-19 at Lundy Manor were largely preventable. He opined that had the Defendants planned, prepared, trained, and exercised the available and accepted IPAC practices, the vast majority of the outbreaks and the deaths that occurred would have been prevented.
11The requirements of the CPA have been satisfied as follows:
a) the Fresh as Amended Statement of Claim discloses reasonable causes of action in gross negligence;
b) there is some basis in fact for identifiable classes of two or more persons;
c) there is some basis in fact for the common issues raised in the Fresh as Amended Statement of Claim;
d) there is some basis in fact that this class proceeding is the preferable procedure for the resolution of the common issues; and
e) there is some basis in fact that the proposed representative Plaintiffs:
i. can fairly and adequately represent the interests of their respective classes;
ii. have produced a workable plan for advancing the claims of the classes; and
iii. do not, on the common issues, have an interest in conflict with the interests of other members of the classes.
12Section 5(3) of the CPA requires the parties to a certification motion to provide, in affidavit form, their best information of the number of Class Members. Under the circumstances, the Defendants are aware of the number of Class Members through their internal records relating to admissions and visits to Lundy Manor.
Disposition
Disposition
13The action is hereby certified on the terms as proposed by the Plaintiffs.
14There will be an Order to go as submitted by Plaintiffs’ counsel.
Morgan J.
Date: April 27, 2026