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The pandemic as an ideal breeding ground for class actions

In the past several weeks, there have been two interesting developments in class actions as they play out in the U.S. courts. Both trends indicate that a pandemic, in which masses of people suffer harm all in the same way, provides an ideal breeding ground for class actions.

The Canadian legal system may follow one of these trends, but is unlikely to follow the other. Both are pandemic-related signs of difficult legal times.

In the United States, students at NYU have issued a class action lawsuit against the university, claiming that their tuition for an essentially lost spring semester must be refunded. The suit, filed in the federal District Court for the Southern District of New York, claims to represent all “students enrolled at NYU who pay or are obligated to pay any tuition or fees and any students enrolled at NYU in any future summer session or semester in which NYU does not provide access to its campus facilities or on-campus instruction yet continues to charge full tuition and fees without any proration.”

Class action certification will be the next major step in the litigation. That will require the lawyers for the students to show that all class members suffered the alleged loss of tuition funds in a common way.

While universities have certainly been hard hit by the COVID-19 societal shutdown, long-term care centres housing elderly patients have been at the epicentre of the pandemic in both Canada and the U.S. As of this week, Ontario has reported roughly 4,000 active COVID cases in long-term care facilities and over 1,300 deaths, including both patients and staff. Similar statistics can be found across the United States.

South of the border, state governments have moved to protect the care homes from the inevitable lawsuits to come. At least 18 states have granted long-term care homes with immunity related to the pandemic. This has been done through a combination of legal vehicles, including new legislation and executive orders by state governors. The focus of state efforts has been more on saving the private owners of those care homes from the potentially ruining impact of class action litigation.

This tact has so far not been taken in Canada and does not appear to be on the radar screen. In Ontario, the Minister of Health issued a new emergency order this week allowing it to temporarily replace management at some long-term care homes struggling to contain coronavirus outbreaks. In Quebec, the province has turned to the federal government to send in the military to take over and manage the worst hit long term care centres. The focus has been on saving lives, not saving liability. Just a month ago, in a motion for summary judgment in a certified class action, Justice Perell rejected an interpretation of s. 11 of Ontario’s Crown Liability and Proceedings Act, 2019 that would leave the provincial government immune from tort claims (Francis v. Ontario, 2020 ONSC 1644 at para. 507).

In both Canada and the United States, though, the pandemic and related economic shutdown have certainly shined a new light on the centrality of class action litigation in bringing significant financial implications and potentially broad social change. It is one thing for a disgruntled student to allege that the university administration has breached its contract in failing to provide traditional classroom instruction during the spring and coming summer term; it is quite another thing for the over 26,000 undergraduate students at NYU to bring their claims in one massive legal package. The same applies to long term care homes. It is one thing for an aggrieved family to claim medical negligence in respect of the death of a loved one; it is quite another thing for thousands of families to simultaneously sue every care home that has suffered a COVID-19 outbreak.

In Canada, governments have to date been interested in ensuring that long term care homes and other societal institutions act with the best interests of their clientele in dealing with the COVID-19 pandemic. As the initial crisis wears off and people start to assess the damage, one can expect efforts to get the courts to hold those same care homes and other institutions to legal account.

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