Tackling COVID-19 class actions

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As the COVID-19 pandemic exposed deep weaknesses in many of our institutions and organizations, class action lawyers have stepped up, seeking justice for those affected by structural failings during this time.

Stephen Birman, a partner with Thomson Rogers LLP, has been playing a role in his firm’s class action suits emerging from the pandemic. Most of these actions are directed against particular long term care homes that saw significant outbreaks during the pandemic. Another, is against Aviva insurance Company of Canada over their business interruption policy. Birman explained the strategic approach that Thomson, Rogers is taking in both the nursing home class actions and the breach of contract class action they are pursuing. While each case touches on a different area of the law, Birman says that they share some unifying threads in their connection to the pandemic and heightened public notoriety due to the class members’ vulnerability and the important interests at stake in each.

“While the source of these cases is the COVID pandemic, at the end of the day, one is a negligence and breach of fiduciary duty claim, and the other is a breach of contract claim,” Birman says. “There are other class actions that have been commenced against ticket companies and airlines and there will likely be many others, some of which we haven't even thought about, that will all arise from the pandemic.”

Managing the two claim areas present different challenges for Thomson, Rogers to overcome. In the claim against Aviva, Birman and his team are fighting on behalf of businesses that held business interruption insurance with Aviva that the insurer refused to honor. These coverages were intended to help businesses during the desperate times that many find themselves. Aviva claims the situation of a global pandemic does not qualify under the policy’s coverage which indemnifies for loss of business income as a result of an outbreak of a contagious or infectious disease. Insurers, Birman says, appear to be taking a blanket position of denial against these claims. He says the courts will have to decide whether the specific policy in question contains language that addresses the pandemic.

Birman believes the language in the Aviva policy applies to the present circumstances but notes that even where an insurance contract contains ambiguous language, the Courts typically find against the insurer as the party that drafted the language. The Plaintiffs are hoping to advance the Aviva claim quickly because many of the insured businesses need immediate help to continue operating.

The long term care situation has received extensive news coverage due to the horror stories that emerged from so many of them during the pandemic. In these cases, Birman and his team must work around the question of the standard of care and circumstances that were unique to each home in respect of issues such as design, staffing, protective equipment and infection control. One of the major challenges will be gathering an evidentiary record because of the closures in these facilities to protect against the spread of COVID-19.  Thomson, Rogers continues to work to obtain evidence from residents, family members in contact with residents, some staff and caseworkers, and hopes to receive assistance from the Canadian Armed Forces which has been sent into a number of these facilities.

In both the nursing home and business interruption cases Birman hopes there is widespread awareness of these issues so that Class Member’s are aware of their rights. Many Aviva insureds will be unaware of their coverages especially since the insurer is tell them that they don’t have any. Birman hopes public interest in the nursing home cases will also get more family members to contact Thomson, Rogers. Birman says that many of these families are grieving and a class action is the furthest thing from their minds. However, he believes that families will come forward at the appropriate time because their stories carry societal importance about how we’ve structured our elder care in the past and how we should take care of the elderly in the future. 

Birman says pursuing these class actions has been a rewarding, if intense, experience.

“What's interesting as a class action lawyer is one day you're doing a certain type of work and the next day, events and circumstances change, and all of a sudden, a certain new type of legal situation arises,” Birman says. “As a class action lawyer you need to be quick on your feet and be able to adapt and look for those opportunities both to learn, but also to help vulnerable and disadvantaged groups seek appropriate recourse through a class action.”