At the start of the pandemic, we described the class actions commenced in the United States related to COVID-19, and predicted that Canada would see “copycat” class actions, such as consumer protection claims for failure to offer refunds.
A year and half later, we are seeing those predictions come to fruition. There have been numerous class actions launched across Canada concerning COVID-19. The most common class action claims in Canada related to COVID-19 fall into one of the following five categories:
- Employment: A significant number of terminations occurred throughout 2020 due to the COVID-19 pandemic and many claims have been filed against employers for wrongful or constructive dismissal. Dismissed employees have brought claims asserting that their former employers failed to provide notice of termination, dismissed without cause, and/or failed to provide severance. One company allegedly terminated employees without notice due to conditions that made it “impossible to perform” employee duties. Claims related to employee benefits have also been filed against employers.
- Negligence in Long Term Care: Long term care facilities including nursing homes, senior homes, and assisted living facilities have been among the hardest hit by the COVID-19 pandemic in Canada. The overarching claims brought against long term care facilities allege that the facilities failed to recognize and address the risks and dangers associated with the pandemic at an early stage. More specifically, the claims allege negligence, staff shortages, and failure to follow proper safety protocols in response to COVID-19. Some facilities have encountered multiple class action claims due to their failure to protect residents and staff from the spread of COVID-19. For an example, see here.
- Refunds: The COVID-19 pandemic and government advisories have heavily impacted many industries, and businesses found themselves suddenly unable to offer services already paid for due to unpredictable and rapidly evolving restrictions. Some consumers have taken issue with the manner in which a business purported to or refused to refund consumers. Class actions have been filed against a number of Canadian companies and institutions seeking refunds for cancelled flights, university classes, and events.
- Refusal of Business Interruption Insurance: Many Canadian businesses were forced to close or limit their operations due to COVID-19 government mandates. Some of these businesses have commenced class action lawsuits against various insurers for business interruption insurance coverage. See here for a recent decision of the Ontario Superior Court of Justice certifying one such class action.
- Spread of COVID-19: Canadian businesses have been the target of class action lawsuits for the alleged failure to prevent the spread of COVID-19, with respect to both the businesses’ customers and the businesses’ employees.
These examples demonstrate the ongoing risk of class action litigation to businesses as they continue to respond to COVID-19. As the fourth wave sweeps the country, businesses need to continue to manage their risk with respect to class actions, including through careful review and implementation of policies designed to prevent the spread of COVID-19, termination of employees, and refunds in the wake of any fresh restrictions.