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.
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