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Cuming & Gillespie's COVID-19 Statement - Read Post

Long-Term Care and COVID-19: The Advantages of an Independent Lawsuit

Posted in: Blog, Nursing Home Negligence // Written on behalf of Cuming & Gillespie
May 20, 2020

The COVID-19 pandemic has had a devastating effect, particularly when it comes to Canada’s nursing homes. In fact, it was reported that 81% of the reported deaths in Canada related to COVID-19 to date occurred at long-term care facilities.

According to Alberta Health, McKenzie Towne Continuing Care Centre (MTCCC), a long-term care facility located in Calgary and operated by Revera Living, has 127 confirmed COVID-19 cases to date and 21 residents have died as a result.

A class action lawsuit was recently filed against Revera Living, alleging negligence and a failure to follow proper protocols in response to the COVID-19 pandemic which could have prevented the fatalities at the facility.  Not surprising given the complexity of class actions, this has raised a number of questions for residents of MTCCC and family members. As a firm that has successfully prosecuted numerous class action and medical negligence claims, it is our intention through this article to provide answers and clarity to those whose loved ones have been impacted by COVID-19 at MTCCC or other continuing care facilities.

Below, we will go over exactly what a class action lawsuit is and what options exist for those who may fall within a class action. However, more briefly, there are a few important facts to know:

  • A class action lawsuit has to be approved by the Court before it can proceed – the proposed class action lawsuit against Revera in relation to MTCCC has not been approved and it is unknown if or when it will be approved.
  • All claims are subject to specific limitations, which if not met, can result in the loss of ability to pursue the claim. If you do not file an individual claim within the limitation period and the proposed class action is either not approved or your claim does not fall under it, you could lose your right to sue.
  • Even if a class action is approved by the Court, it may not be in your best interest for your claim to be included in that. You have the right to opt-out of a class action and retain your own lawyer to proceed with an individual lawsuit on your behalf.

If you have questions about class actions or about the care your loved one has received in a continuing care facility, please phone the lawyers at Cuming & Gillespie at 403-571-0555. We are available to help.

What Is a Class Action Lawsuit?

A class action lawsuit is a civil lawsuit commenced by one or more representative plaintiffs on behalf of a larger group, also known as the class members. The purpose of a class action is to have common or similar claims resolved in a single proceeding with the result of the lawsuit binding upon all class members and the opposing parties.

The representative plaintiff is a class member who represents the entire class in the action. The representative plaintiff must fairly and adequately represent the interests of the entire class, and not have a conflict of interest with any of the other class members. They must have a plan for pursuing the action and provide notice to the other class members.

A class action begins with the Certification Stage. This is when the court is asked to approve the claim to proceed as a class action. This phase can take a long time to complete. 

In Alberta, in order to be certified by the court as a class action the following must be demonstrated:

  • That there is a suitable representative plaintiff for the class;
  • That the claims of the prospective class members raise a common issue;
  • That a class proceeding is the preferable procedure for the fair and efficient resolution of the common issues;
  • That the Statement of Claim discloses a cause of action; and
  • That there is an identifiable class of two or more persons.

Given the current COVID-19 pandemic, courts in Alberta are not currently hearing any non-urgent cases or applications. Class certification applications have not been identified by the Courts as “urgent”.

The Opt-Out System

If an individual is covered by the definition of a class and chooses to take part in a class action, there is no action to take.  However, if an individual wants to preserve his/her right to pursue an individual civil action, he/she may opt-out of the class action by a prearranged date following the certification of the class action. If an individual does not formally opt-out of the class action, he/she, along with all other class members, is automatically bound by the results of the class action.

In a large class-action lawsuit, the settlement process can be very time-consuming. The court will prescribe a period of time during which members must make a claim and the individual must provide proof that he/she falls within the definition of the class and the extent to which he/she suffered injury or damages.

What Are the Advantages of Pursuing an Individual Lawsuit?

Proceeding with an individual lawsuit rather than a class proceeding has the advantage of enabling the individual to control their lawsuit, as opposed to allowing the representative plaintiff and his/her lawyer to steer the matter. The individual plaintiff can determine whether to accept or reject a settlement offer or proceed to trial. The individual plaintiff has the advantage of controlling their own case and will not be bound by decisions made on behalf of the entire class. 

A class action lawsuit can disadvantage the individuals making up the class in that they may receive only a small percentage of the total compensation if the lawsuit is successful. Further, if the class proceeding is unsuccessful, the individual plaintiffs are prohibited from filing individual lawsuits at a later date. 

Although a class action lawsuit against Revera Living on behalf of those that have perished due to exposure to COVID-19 while living at MTCCC has been filed, it has not yet been certified by the courts. This process may take some time given that the court system is not hearing non-urgent cases at this time.

Individuals who have been exposed to and affected by the deadly virus at MTCCC or any other long-term care facility are not obligated to join this class proceeding or any others that may be currently awaiting certification by the court. Anyone seeking compensation due to negligence from a long-term care facility should consult their own legal representative to consider all of their options.

If you have been affected by a COVID-19 outbreak at a long-term care facility, you should speak with an experienced lawyer as soon as possible to discuss the benefits of pursuing an individual lawsuit. It is crucial to do this quickly to ensure action is taken within the prescribed limitation period.

The personal injury lawyers at Cuming & Gillespie Lawyers are committed to helping you and your loved ones. If a member of your family has become infected with COVID-19 or has suffered a serious injury or significant harm due to nursing home neglect, Cuming & Gillespie Lawyers may be able to help you obtain financial compensation.

Contact our knowledgeable and experienced personal injury lawyers to learn what options are available at 403-571-0555 or online today. Please do not hesitate to contact us for a free consultation with any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case. 

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