Major Court of Appeal Win for Oatley Vigmond in Roberta Place Class Action

The Ontario Court of Appeal has dismissed Roberta Place’s appeal, and that is a major win for our team at Oatley Vigmond LLP and for the families pursuing this case. The defendants challenged certification of causation, punitive, exemplary or aggravated damages, and the certification costs order. They lost on all three issues. The Court of Appeal dismissed the appeal, denied leave to appeal costs, and fixed additional costs in favour of the plaintiffs. Robert Durante and Ben Irantalab were part of the successful appellate team before the Court of Appeal.

This appeal is important because the defendants/appellants tried to overturn some of the most important parts of the certification decision. The defendants tried to take causation out of the class proceeding as a common issue. They also tried to remove punitive, exemplary or aggravated damages as common issues. They also appealed the certification costs order of $339,000.00. The Court of Appeal rejected each of those grounds of appeal.

For us, that makes this a big appellate win. Robert Durante described the ruling publicly as a “big win,” and he explained the practical point clearly: “proving causation once in a class action is far more workable than forcing families to fight that battle one by one”. Durante estimates the class is comprised of about 900 residents and family members.

The Court’s reasons are especially important on the issue of causation. The Court held that the plaintiffs had advanced a workable methodology at the certification stage and said Roberta Place’s own expert had effectively admitted in cross-examination that approach was workable. Causation was one of the most fiercely contested issues at the motion and before the Court of Appeal.

The Court also upheld certification of punitive, exemplary or aggravated damages as common issues. That does not mean those damages have already been awarded. It means the plaintiffs can pursue those damages as part of the class action, as a common issue.

The background to this case is well known and made headlines across the globe during the pandemic. From January 8, 2021 to February 18, 2021, every one of its 129 residents and an additional 105 staff members at Roberta Place tested positive for COVID-19. A total of 73 residents died, 71 of whom had tested positive for COVID-19 before they passed away. The negative and tragic outcome at Roberta Place was disproportionate to any other long term care home in Ontario. The plaintiffs allege systemic gross negligence in the planning for and response to the outbreak, including failures relating to infection prevention and control. Those allegations remain to be proven.

The Court of Appeal did not make a final finding of negligence or liability, nor did it decide fault. What it did do however, was protect the core issues of the class action from a defence appeal aimed at narrowing it. This ruling means the case can now move forward with key common issues intact.

What Oatley Vigmond LLP & Brock Medical Malpractice Law LLP won on appeal

The short answer is this: the plaintiffs kept causation in the class action as a common issue, they kept punitive, exemplary, aggravated damages in the class action as common issues, and they preserved the certification costs result.

Did the Court decide negligence?

No. The Court of Appeal did not decide whether the defendants were negligent or whether they caused the harm suffered by the class members. Rather, it decided that these key issues can continue to move forward in the class action as common issues.

What happens next?

The case will move forward to the discovery phase. The plaintiffs still have to prove the allegations. But after this appeal, they can proceed to do so with some of the most important parts of the case preserved.