Pandemic Class Actions Against the Provinces After the Pandemic: Digitalizing our Courts

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CBA NATIONAL MAGAZINE

Pandemic Class Actions Against the Provinces

Are provincial governments shielded from liability for the deaths of residents in nursing homes and long-term care facilities?

Class actions over COVID-19 handling of long-term care and nursing homes could follow different scripts in Canada’s two largest provinces, the most affected by the pandemic.

Already, Ontario has passed legislation to shield itself from lawsuits for negligence arising from legislative and policy actions taken in good faith.

It is also on the verge of enacting a bill that would change the nature of class-actions in their province.

Margaret Waddell, a partner at Waddell Philips PC in Toronto, says that Ontario’s Crown Liability and Proceedings Act 2019 will create a significant hurdle to bringing lawsuits against the government for its role in the oversight of long-term care facilities. “And on top of that, the government is also considering putting into place specific legislation to exempt long-term care homes, and I would assume, also itself from lawsuits for how they’ve dealt with the COVID issues,” she says.

Meanwhile, sweeping changes to the Class Proceedings Act proposed in Bill 161, which is expected to pass third reading and receive royal assent at any time, would narrow the criteria for the certification of class actions.

“They’re going to be changing the test for certification to add in two concepts that they are importing out of the US called ‘superiority and predominance,’” says Waddell. “You need to prove that a class-action is superior to any other mode of resolving the dispute, and also that the common issues predominate over individual issues, which is a much higher burden than under the current test.”

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CBA NATIONAL MAGAZINE

After the Pandemic: Digitalizing our Courts

Yves Faguy speaks with Karen Eltis, the author of “Courts, Litigants and the Digital Age,” about the pressing need to modernize our courts, the risks involved, and the precautions we should be taking.

COVID-19 has forced innovation on a scale and at a pace that our court system would never have contemplated just a few months ago. Some courts have gone as far as holding virtual trials. Across several jurisdictions, litigant parties are at the very least expected to use available technology, where they can, to move matters along. And this month, the Supreme Court of Canada launched virtual hearings for the first time using Zoom.

For a justice system long characterized by its slowgrinding wheels, this is no small thing. And for proponents of digitalization, it’s an opportunity to radically redesign our courts for the 21st century. We can also expect pressure to grow on governments to fund technological solutions that will help bring down the court backlog — and improve access to justice.

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