A lawsuit alleging that gross negligence at a Toronto long-term care home led to hundreds of deaths from COVID-19 has been certified as a class action.
An Ontario Superior Court judge granted the certification last week with the consent of the defendants, the Downsview Long-Term Care Centre Limited and the company that owns it, Gem Healthcare Group Limited.
The lawsuit alleges Downsview and Gem were grossly negligent in their response to the COVID-19 pandemic, resulting in multiple outbreaks at the home between late January 2020 and early May 2023.
It alleges those outbreaks caused at least 1,966 residents to get COVID-19 and at least 244 to die from it.
The plaintiffs include residents, people receiving care and visitors who contracted COVID-19 at the home during that period or their estates, as well as their family members.
The allegations have not been tested at trial. Downsview and Gem have said they intend to defend themselves against the allegations.
Billy Powell, whose mother Zellora Graham lived at Downsview until she died from COVID-19 in May 2020, is named as a representative plaintiff in a statement of claim filed a year ago.
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Graham moved to Downsview in September 2017, a few months after suffering a hip fracture, the document said. She had arthritis and used a walker to get around. She had no other chronic conditions, it said.
By the time the pandemic hit the province, Graham was living in a private room but ate and watched TV in communal areas, the statement of claim said.
Powell last visited his mother in early March 2020, about a week before the Ontario government imposed restrictions on visits to long-term care homes, the document said. After that, he received “little to no information” about his mother or her health, it said.
He only learned of the possible risk to his mother after his wife saw a news article in late April about a COVID-19 outbreak at Downsview, the statement of claim said. When he called the home, a nurse told him Graham was doing well and the virus had not spread to her section, the statement of claim said.
He asked to speak with his mother but was told she had gone to bed, and received the same answer when he called again in the following days, it said.
On May 1, 2020, Powell returned a missed call from the home and was told his mother was not doing well and was suspected to have COVID-19, the document said. Staff asked if he wanted Graham to stay at Downsview or get transferred to hospital, and Powell and his siblings agreed she should go to a hospital, it said.
Once she arrived, Graham tested positive for COVID-19, the statement of claim said. A doctor called Powell that evening, saying his mother was severely dehydrated and struggling to breathe, and that she had a 20 per cent chance of survival, it said. A call the next day confirmed she was not improving, it said.
Graham died two days later.
The lawsuit alleges that long-standing deficiencies — including overcrowding, inadequate infection prevention and control practices, systemic failures to ensure compliance with regulatory, legal and industry standards, as well as understaffing — made the facility vulnerable to outbreaks.
It also alleges Downsview and Gem didn’t act quickly or proactively to impose infection prevention and control measures, and those they did implement did not reflect the state of knowledge on the virus and the risk it posed for elderly people.
The lawsuit further alleges the outbreaks were preventable had Downsview and Gem not breached their common law obligations.
In his ruling, Justice Edward Morgan said there is some factual basis to support those allegations for the purpose of certification.
“Given the number of class members and the economics of pursuing a claim of this nature requiring expert evidence, a class proceeding is the preferable procedure for ensuring their just and expeditious determination, promoting judicial economy, and seeking behaviour modification,” he wrote.
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