Court File No./N° du dossier du greffe: CV-20-00640016-00CP Court File No. ONTARIO SUPERIOR COURT OF JUSTICE Electronically issued : 24-Apr-2020 Délivré par voie électronique B E T W E E N: Toronto MICHAEL MCCARROLL IN HIS PERSONAL CAPACITY AND AS EXECUTOR OF THE ESTATE OF RUBY ANNIE MCCARROLL Plaintiff and RESPONSIVE GROUP INC. RESPONSIVE MANAGEMENT INC., RESPONSIVE HEALTH MANAGEMENT INC., RYKKA CARE CENTRE LP, RESPONSIVE HEALTH MENTORS LTD., VERMONT SQUARE LTC INC., VERMONT SQUARE LC LP, COOKSVILLE CARE CENTRES FACILITY INC., EATONVILLE CARE CENTRE FACILITY INC., ANSON PLACE CARE CENTRE FACILITY INC., 914 BATHURST GP INC., SHARON FARMS & ENTERPRISES LTD., HAWTHORNE CARE FACILITY INC. Defendants (Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6) STATEMENT OF CLAIM TO THE DEFENDANTS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The Claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff’s lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file it, with proof of service in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court. Date: April 24, 2020 Issued by Local Registrar Address of Superior Court of Justice court office: 393 University Avenue, 10th Floor Toronto ON M5G 1E6 2 Electronically issued / Délivré par voie électronique : 24-Apr-2020 TO: Court File No./N° du dossier du greffe: CV-20-00640016-00CP Responsive Group Inc. 3760 14th Avenue, Suite 402 Markham, ON L3R 3T7 info@responsivegroup.ca Responsive Management Inc. 3760 14th Avenue, Suite 402 Markham, ON L3R 3T7 Phone: (416) 479-4345 Fax: (416) 479-4346 info@responsivemanagement.ca Responsive Health Management Inc. 429 Walmer Road Toronto, ON M5P 2X9 Phone: (416) 960-3445 Fax: (416) 960-3996 info@responsivehealth.ca Rykka Care Centre LP 3760 14th Avenue, Suite 402 Markham, ON L3R 3T7 Phone: (416) 479-4345 Fax: (416) 479-4346 info@responsivemanagement.ca Responsive Health Mentors Ltd. 429 Walmer Road Toronto, ON M5P 2X9 chris.dalglish@responsivehealth.ca marion.godoy@responsivehealth.ca Phone: (416) 627-1322 Vermont Square LTC Inc. c/o All Seniors Care Living Centres 175 Bloor Street East, Suite 601 Toronto, ON M4W 3R8 Phone: 1-866-797-7169 Fax: (416) 929-8695 Vermont Square LC LP c/o All Seniors Care Living Centres 175 Bloor Street East, Suite 601 Toronto, ON M4W 3R8 Phone: 1-866-797-7169 Fax: (416) 929-8695 3 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP Cooksville Care Centres Facility Inc. 55 The Queensway West Mississauga, ON L5B 1B5 Phone: (905) 270-0170 Eatonville Care Centre Facility Inc. 420 The East Mall Etobicoke, ON M9B 3Z9 Phone: (416) 621-8000 Anson Place Care Centre Facility Inc. 85 Main Street North Hagersville, ON N0A 1H0 Phone: (905) 768-1641 914 Bathurst GP Inc. 914 Bathurst Street Toronto, ON M5R 3G5 Phone: (416) 533-9473 Fax: (416) 538-2685 Sharon Farms & Enterprises Ltd. 108 Jensen Road London, ON N5V 5A4 Phone: (226) 663-1802 Hawthorne Care Facility Inc. 2045 Finch Avenue West North York, ON M3N 1M9 Phone: (416) 745-0811 4 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP CLAIM 1. The Plaintiff, Michael McCarroll, claims on his own behalf and on behalf of the Class (as defined below): (a) An order certifying this proceeding as a class proceeding and appointing the Plaintiff as representative plaintiff; (b) A declaration that Responsive Group Inc., Responsive Management Inc., Responsive Health Management Inc., Ryyka Care Centre LP, Responsive Health Mentors Ltd., Vermont Square LTC Inc., Vermont Square LC LP, Eatonville Care Centre Facility Inc., Anson Place Care Centre Facility Inc., 914 Bathurst GP Inc., Sharon Farms & Enterprises Ltd., and Hawthorne Care Facility Inc. (collectively, the “Defendants”) owed duties of care to the Plaintiff and the Class with respect to retirement or long-term care facilities that they own, operate and manage (the "Homes") during the COVID-19 pandemic; (c) A declaration that the Defendants breached their duties of care to the Plaintiff and Class by failing, in the Homes that they own, operate and manage, to properly plan for and respond to the COVID-19 pandemic, by failing to ensure adequate staffing within the Homes to care for the elderly residents, and by failing to comply with public health guidance, directives, and other requirements issued the Provincial and Federal government, including those regarding: (1) adequate infection outbreak planning; (2) supply, use, and access to personal protective equipment (“PPE”); (3) 5 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP visitor, supplier and service personnel screening; (4) resident isolation and testing, and (5) employee testing and screening; (d) A declaration that the Defendants are liable to the Plaintiff and the Class for breach of contract for failing to provide adequate care and safety at the Homes; (e) Damages for the Defendants’ breach of contract, negligence simpliciter, and breach of fiduciary duty as this Honourable Court may find appropriate; (f) Punitive and exemplary damages of $15,000,000 or such other amount as this Honourable Court may find appropriate; (g) Pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C-43; (h) The costs of this Action on a substantial indemnity basis, plus applicable goods and services and harmonized sales taxes; (i) The costs of notice and administering the plan of distribution of the recovery in this Action, plus applicable taxes; (j) Such further and other relief as may be required and as this Honourable Court deems just. 6 Electronically issued / Délivré par voie électronique : 24-Apr-2020 A. 2. Court File No./N° du dossier du greffe: CV-20-00640016-00CP OVERVIEW The Defendants are for-profit private corporations that are paid to house and look after some of the most vulnerable members of our society: our elderly – our parents and our grandparents – and those individuals requiring assistance with various aspects of daily living due to mental or physical incapacity. 3. The Defendants failed to protect the residents living in their Homes through their inadequate general planning and preparation for a viral respiratory outbreak. 4. In the months after COVID-19 emerged on the world stage and before any outbreaks in Ontario, the Defendants again failed to protect the residents in their Homes by not putting in place adequate measures to prepare for and respond to the COVID-19 virus. 5. After the COVID-19 virus took root in Canada, the Defendants again failed to protect the residents living in their Homes by repeatedly failing to follow the leadership of public health officials and comply with public health guidance and directives regarding: (1) outbreak planning; (2) supply, use, and access to PPE; (3) visitor, supplier and service personnel screening; (4) resident isolation and testing, and; (5) employee testing and screening. 6. As a result of the Defendants’ failure to adequately and properly plan, prepare and respond to the COVID-19 virus, the virus has run rampant through many of their Homes. 7. As at April 23, seventy-one people living in the Homes licensed, managed and/or operated by the Defendants have died during the COVID-19 pandemic. In most cases, 7 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP they died alone without their families and loved ones at their side. In many cases, family members of those who died were not even aware that their parents and grandparents were sick. 8. Premier Ford described the outbreak of COVID-19 in long term care homes as a “wildfire”. It is a fire that never should have started and, once started, it is a fire that should have been quickly contained and extinguished. Instead, as at the date of filing this claim, over 10% of COVID-19 related deaths in the Province of Ontario have occurred in the Defendants’ Homes. B. THE PARTIES AND DEATH OF RUBY MCCARROLL The Plaintiff 9. The Plaintiff, Michael McCarroll, is a resident of Norfolk County, Ontario. Michael is also the sole Executor of the Estate of his mother, Ruby Annie McCarroll (deceased). 10. Michael’s mother, Ruby McCarroll, was a resident of Anson Place Care Centre (“Anson Place”), a retirement and long-term care facility based in Hagersville that is owned and operated by certain of the Defendants. 11. On March 23, 2020, Michael was informed by an Anson Place staff member that his mother was unwell and had been sent to the hospital. The hospital had a no visitor policy in place and Michael was not able to visit her on that day. On March 27, 2020, the hospital contacted Michael to let him know that Ruby was gravely ill and it might be his last opportunity to see her. Michael was allowed to see his mother that day wearing full PPE. As he was leaving the hospital, Michael was informed by the nurse on-duty that his 8 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP mother tested positive for COVID-19. The nurse stated further that another Anson Place resident passed away from COVID-19 related complications. This was the first time Michael was informed of a COVID-19 outbreak at Anson Place, let alone that his mother had COVID-19, or had been tested for it. 12. Ruby passed away from COVID-19 related complications on March 30, 2020. She died alone without Michael or any family by her side. To date, 27 of 101 total residents living in Anson Place have passed away from COVID-19 related complications, representing over 25% of Anson Place’s total population. 13. In the days following her death, certain of the Defendants deducted payment from Ruby’s bank account purportedly on account of her April 2020 fees for living at Anson Care. The Class Michael brings this Action on behalf of: (1) all individuals living in retirement or long-term care facilities owned, operated and/or managed by the Defendants, including those facilities listed in paragraph 15 below (the "Homes") from January 10, 2020 to the end of the COVID-19 Pandemic (the “Pandemic Period”); (2) the estates of all individuals who died while living in the Homes during the Pandemic Period; and (3) the family members of all such individuals referred to in (1) and (2) (together the "Class Members" or the "Class"). The Defendants 14. The Defendants are private for-profit companies incorporated in Ontario. 9 Electronically issued / Délivré par voie électronique : 24-Apr-2020 15. Court File No./N° du dossier du greffe: CV-20-00640016-00CP The Defendant, Responsive Group Inc., is a privately-held owner-operator of retirement and long-term care facilities in Ontario. Responsive Group Inc. owns, operates, and provides a suite of services to the Homes through four primary lines of business and other subsidiary entities: (i) Responsive Health Management Inc., which manages retirement and long-term care facilities and provides financial management and consulting services to the Homes; (ii) Responsive Management Inc., operating partner of Rykka Care Centre LP (“Rykka”), which is the listed Licensee for several of the Homes; (iii) Responsive Health Mentors Ltd. (“Responsive Health Mentors”), which provides a range of consulting services to the Homes, including those with respect to emergency planning and infection prevention and control; and (iv) The Registered Owners, which are the entities listed in the table below own certain of the homes operated and managed by the other Defendants. 16. Together the Defendants are referred to as the “Responsive Group,” and they own, operate, manage and/or advise at least twelve long-term care and retirement facilities, including the following: 10 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP Location Licensee 1 COOKSVILLE CARE CENTRE 55 The Queensway West Mississauga, L5B1B5 Rykka Care Centres LP Management Registered (if different) Owner N/A Cooksville Care Centres Facility Inc. 2 EATONVILLE CARE CENTRE 420 The East Mall Etobicoke, M9B3Z9 Rykka Care Centres LP N/A Eatonville Care Centre Facility Inc. 3 ANSON PLACE CARE CENTRE 85 Main Street North Hagersville, N0A1H0 Rykka Care Centres LP N/A Anson Place Care Centre Facility Inc. 4 VERMONT SQUARE 914 Bathurst Street Toronto, M5R3G5 Vermont Square LTC Inc. as General Partner Of Vermont Square LTC Limited Partnership Responsive Health Management Inc. 914 Bathurst GP Inc. 5 EARLS COURT VILLAGE 1390 Highbury Avenue, North London, N5Y0B6 Responsive Health Management Inc. Sharon Farms & Enterprises Ltd. Sharon Farms & Enterprises Ltd. 6 HAWTHORNE PLACE CARE CENTRE 2045 Finch Avenue West North York, M3N1M9 Rykka Care Centres LP N/A Hawthorne Care Facility Inc. 17. Each of the homes above had one or more residents test positive for COVID-19 and numerous residents in three of the homes, Anson Place, Eatonville and Hawthorne Place, have died from COVID-19. Specifically, as at April 23, 2020, seventy-one residents have died in Eatonville, Anson Place and Hawthorne Place. 11 Electronically issued / Délivré par voie électronique : 24-Apr-2020 C. 18. Court File No./N° du dossier du greffe: CV-20-00640016-00CP COVID-19 PANDEMIC On December 31, 2019, Chinese officials in Wuhan, Hubei Province, alerted the World Health Organization (“WHO”) to several cases of pneumonia of unknown etiology. The outbreak was identified as a novel coronavirus in early January 2020. Wuhan was placed on strict quarantine shortly thereafter. 19. On January 10, 2020, the WHO issued a comprehensive package of technical guidelines with advice to all countries on how to detect, test and manage potential cases of COVID-19 based on prior experience with respiratory viruses, infection and prevention control, including severe acute respiratory syndrome (“SARS”) and the H1N1 swine flu. 20. The first presumptive cases of the COVID-19 virus in Canada were announced in Toronto, Ontario, in late January 2020. By then, the WHO had declared the outbreak a global public health emergency, with more than 9,000 cases being reported in 18 countries in addition to China. 21. Between late January and March 2020, the total number of confirmed cases of COVID-19 in Ontario increased from 2 to 27. During this period, public health authorities in Canada and Ontario began issuing COVID-19 guidelines and regulations for various healthcare providers. 22. Notably, the COVID-19 pandemic is not the only viral outbreak in recent history. In 2003, an outbreak of SARS was declared a provincial emergency in Ontario, and in 2009, an outbreak of H1N1 swine flu was declared a pandemic by the WHO. The risk of 12 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP respiratory viral outbreaks is well-known within the health care, long-term care and retirement home industry. D. THE ESCALATION OF COVID-19 GUIDANCE FROM PUBLIC HEALTH AUTHORITIES AND THE FORESEEABLE PUBLIC HEALTH CRISIS 23. On January 28, 2020, the Ministry of Health and Long-Term Care (“MOHLTC”) issued its initial “Novel Coronavirus (2019-nCoV) Guidance for Primary Care Providers in a Community Setting” (“January 28 Guidance”). The January 28 Guidance requested that retirement and long-term care facilities prepare for both active (asking questions) and passive screening (signage) of patients for COVID-19. The January 28 Guidance also requested that primary care providers follow the Routine Practices and Additional Precautions in All Health Care Settings (“Routine Practices”) for managing acute respiratory infections, issued by the Provincial Infectious Diseases Advisory Committee. 24. The Routine Practices include “Best Practices for Prevention of Transmission of Acute Respiratory Infections,” which set the baseline standard for responding to acute respiratory infections in retirement and long-term care facilities. The relevant portion of the Routine Practices is set out below: Recommendations 13. Clients/patients/residents presenting for care in a health care setting who have symptoms of acute respiratory infection should be asked to perform hand hygiene and wear a mask, practice respiratory etiquette and either wait in a separate area or keep at least two metres away from other clients/patients/residents and HCWs. 14. Whenever possible, patients who have symptoms of an acute respiratory infection who are admitted to a hospital should be accommodated in a single room under Droplet and Contact Precautions. 13 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP 15. Residents of long-term care homes with an acute respiratory infection who are not in single room accommodation should be managed in their bed space using Droplet and Contact Precautions with privacy curtains drawn. 25. The Routine Practices refer to the MOHLTC’s November 2018 “Guide to the Control of Respiratory Infection Outbreaks in Long-Term Care Homes” (the “Acute Respiratory Outbreak Guide”), which sets out various required components of an outbreak response, including: (a) ongoing surveillance programs to determine the presence of infections, including a “sufficiently sensitive surveillance program to identify sentinel events and trends; (b) Analysis of surveillance data by the Infection Prevention and Control Professional in order to trigger actions designed to reduce or eliminate disease transmission and influence policy and Practice; and (c) Control measures to be implemented as soon as an outbreak is suspected, namely: (i) staff notified quickly of the outbreak; (ii) supplies made available as necessary (e.g. alcohol based hand rub, PPE, including gowns, face protection, gloves, surgical masks, etc.); (iii) symptomatic residents placed on droplet/contact precautions in addition to Routine Practices being employed as soon as possible after symptoms identified. 14 Electronically issued / Délivré par voie électronique : 24-Apr-2020 26. Court File No./N° du dossier du greffe: CV-20-00640016-00CP In addition to the Acute Respiratory Outbreak Guide, s. 229(3) of O. Reg. 79/10 under the Long-Term Care Homes Act, 2007, requires long-term care facilities to have an infection prevention and control program that includes surveillance and outbreak management activities. The licensee of a long-term care facility is responsible for ensuring that “all staff participate in the implementation of the program” (s. 229(4)), and that symptoms indicating the presence of infection in residents are monitored and recorded (s. 229(5)(a)/(b)). Retirement homes have similar infection prevention and control requirements under the Retirement Homes Act that require active screening for signs and symptoms of illness. 27. On March 9, 2020, the MOHLTC issued a memorandum instructing long-term care homes to begin active screening of visitors, new admissions, re-admissions, and returning residents. The next day, the Retirement Homes Regulatory Authority adopted the MOHLTC memorandum and advised all retirement homes to adopt active screening protocols for all visitors, resident admissions, re-admissions and returning residents. 28. On March 11, 2020, the WHO declared the COVID-19 virus a global pandemic. 29. On March 12, 2020, the province of Ontario issued an updated COVID-19 case definition guidance document that noted for clinical purposes, "individuals with acute respiratory infections who reside in long term care homes and retirement homes" should be tested for COVID-19. 30. That same day, Ontario’s Chief Medical Officer of Health issued Directive #1 for Health Care Providers and Health Care Entities (“Directive #1”), requiring that healthcare workers interacting with suspected, presumed, or confirmed COVID-19 patients utilize 15 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP contact and droplet precautions including "gloves, face shields or goggles, gowns and surgical/procedure masks” and airborne precautions when undertaking aerosolgenerating medical procedures. 31. MOHLTC issued another memorandum on March 13, 2020, “strongly recommending” that retirement and long-term care facilities allow only essential visitors (defined as those who have a resident who is dying or very ill). E. ONTARIO DECLARES A STATE OF EMERGENCY AND ESCALATES COVID19 GUIDANCE AND DIRECTIVES 32. On March 17, 2020, the Government of Ontario declared a state of emergency in response to the COVID-19 pandemic, closing a variety of establishments including schools, theatres, bars and restaurants (except for take-out and delivery services) and banning all public gatherings of more than 50 people. Toronto's chief medical officer of health, Dr. Eileen de Villa, noted in a press conference that day that there was "some evidence of community transmission” of the virus. 33. Two days later, on March 19, 2020, s. 27(5) of the Retirement Homes Act regulations was amended to require retirement homes to take all reasonable steps to comply with any COVID-19 directive, guidance, advice, or recommendations issued by the Chief Medical Officer of Health to long-term care facilities. 34. Between March 20 and present, the Chief Medical Officer of Health issued and revised a series of escalating directives for retirement and long-term care homes: 16 Electronically issued / Délivré par voie électronique : 24-Apr-2020 (a) Court File No./N° du dossier du greffe: CV-20-00640016-00CP On March 22, 2020, the Chief Medical Officer of Health issued “Directive #3 for Long-Term Care Homes” (“Directive #3”) stipulating (1) that homes should not allow residents to leave facilities to visit family or friends, and; (2) requiring homes to work with employees to limit the number of work locations that employees are working at. (b) On April 8, 2020, Directive #3 was revised (“Revised Directive #3”) to include more stringent measures for long-term care homes, including: (1) a requirement that long-term care home employees wear surgical/procedure masks at all times for the duration of shifts or visits in the long-term care home; (2) the mandatory use of staff and resident cohorting to limit the spread of COVID-19 infections; (3) a requirement that employers work with staff, contractors and volunteers to limit the number of work locations, so as to minimize risk of COVID-19 exposure to residents; (4) requirements that long-term care homes keep “staff, residents, and families informed about COVID-19.” (i) With respect to resident cohorting, Revised Directive #3 specifies that in smaller homes where cohorting is not possible, "all residents or staff should be managed as if they are potentially infected" and that staff should use droplet and contact precautions when in an area affected by COVID-19. (c) On April 9, 2020, the Chief Medical Officer of Health passed “Directive #5 for Hospitals within the meaning of the Public Hospitals Act and Long-Term 17 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP Care Homes,” (“Directive #5”), requiring that long term-care and retirement facilities provide an ongoing assessment of PPE supplies and develop a PPE supply contingency plan where "utilization rates indicate that a shortage will occur.” Directive #5 specifies further that long term care homes should not "unreasonably deny access [to health care workers] to the appropriate PPE.” (d) On April 15, 2020, the Ontario government further revised Directive #3, requiring all staff and essential visitors to retirement and long-term care facilities wear surgical/procedure masks for the duration of visits whether or not the facility is in outbreak. (e) Separately, in or around the same time, the province issued an order prohibiting employees of long-term care homes from working at multiple long-term care facilities. F. THE HOMES FAILED TO FOLLOW ACCEPTABLE PRACTICES AND COMPLY WITH PUBLIC HEALTH GUIDELINES AND DIRECTIVES 35. The Homes have been among the hardest hit by the COVID-19 pandemic. At the time of the issuance of this Claim, Responsive Group owned and operated facilities have combined for at least 71 deaths, representing over 10% of the total number of deaths in the province of Ontario. 36. At all material times, the Defendants had an obligation to take reasonable steps to ensure the safety, well-being, health and dignity of residents in the Homes. The Defendants knew, or ought reasonably to have known, that residents in the Homes were 18 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP a vulnerable population requiring appropriate safeguards and measures to prevent them from contracting, or be put at risk of contracting, COVID-19. In particular, the Defendants knew, or ought reasonably to have known, that the dangers arising from COVID-19 infection posed a serious and credible risk to residents of the Homes. Given their age, related health conditions, and close proximity, residents of the Homes were at increased risk of suffering a severe reaction to a COVID-19 infection. 37. As set out below, the Defendants: (a) failed to properly and adequately plan for and respond to the COVID-19 pandemic; (b) failed to have adequate staff within the Homes to care for the residents in a safe and competent manner; (c) failed to communicate adequately or at all with families of residents; and (d) repeatedly failed to comply with public health guidance and directives regarding: (1) outbreak planning; (2) supply, use, and access to PPE; (3) visitor, supplier and service personnel screening; (4) resident isolation and testing, and; (5) employee testing and screening. Outbreak Planning 38. The Defendants failed to implement an adequate pandemic response plan (the “Plan”) for residents, or at all, when it was obliged to do so at common law and under 19 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP contract and knew, or ought reasonably to have known, that such a Plan was required to safeguard the health, safety, well-being and dignity of the Residents. 39. As set out below, when faced with a proliferation in COVID-19 cases, the Homes failed to conduct even basic acute respiratory infection surveillance or to take standard droplet/contact precautions, let alone ensure the adequacy of PPE supplies or their use. The Homes also failed to communicate with the families of residents living in the Homes or staff regarding “presumptive positive” cases of COVID-19 at the Homes, in contravention of the Acute Respiratory Outbreak Guide. Visitor Access and Screening 40. The Homes failed to conduct adequate visitor screening long after public guidance was in place requiring it. 41. Anson Place, owned, licensed, managed and/or operated by certain of the Defendants, ostensibly put in place a no visitor policy on March 14, 2020. However, at least some visitors were allowed into the home after this date, and these visitors were not required to wear full PPE. At Eatonville Place Care Center another long-term care home licensed, managed and/or operated by certain of the Defendants, visitors were reportedly not screened at the door until the final day non-essential visitors were allowed into the facility. Inadequate supply and use of PPE 42. The Homes failed to adequately supply or use PPE for visitors, residents, and staff in accordance with public health guidance and directives, including the Routine Practices, 20 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP the Acute Respiratory Outbreak Guide, and the various public health directives introduced in connection with the COVID-19 pandemic. Despite an acute respiratory infection outbreak in Anson Place’s long-term care facility, minimal PPE was provided to staff. The failure of Anson Place management to supply adequate PPE persisted even after the declaration of a COVID-19 outbreak at Anson Place on March 29, 2020. 43. At Hawthorne Place Care Centre, a retirement long-term care facility licensed, managed and/or operated by certain of the Defendants, management actively interfered with efforts to supply staff with PPE. Nurses and staff at Hawthorne were reportedly directed by a manager “not to wear even a surgical mask as it would scare the residents.” Employees were limited to one gown per shift and told to return surgical masks before they left work for reuse. N95 respirators were kept under lock and key despite registered nurses determining N95 respirators were necessary based on their professional and clinical judgment. Staff working late shifts could not access even basic masks. 44. The Defendants also failed to equip visitors with adequate PPE despite knowledge of acute respiratory infection outbreaks. Even after the MOHLTC’s memorandum on March 13, 2020 “strongly recommending” that retirement and long-term care facilities allow only essential visitors, some visitors at Eatonville were not provided any PPE and were simply asked to use hand sanitizer by Eatonville staff members. The failure of the Defendants to provide visitors and staff adequate PPE in breach of, among other things, the Routine Practices, the Acute Respiratory Outbreak Guide, and Directives 1, 3, and 5 and the Occupational Health and Safety Act. 21 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP Resident isolation and screening/testing 45. The Homes repeatedly ignored public health guidance and directives with respect to the screening, testing, and cohorting of residents. As early as March 12, 2020, Ontario’s guidance was that individuals with acute respiratory infections who reside in long term care homes and retirement homes should be tested for COVID-19. Even after outbreaks of COVID-19 were announced at certain of the Homes, the Defendants still failed to maintain adequate screening, testing, and cohorting measures. For example: (a) Management at Anson Place was slow to test residents displaying acute respiratory infection symptoms and failed to appropriately isolate residents of the long-term care floor despite knowing of an outbreak. Even after the declaration of a COVID-19 outbreak, little attempt was made by management to separate the population of healthy residents from those with suspected or confirmed cases of COVID-19. Residents who had tested positive for COVID-19 continued to share ward units and bathrooms with healthy residents. This unnecessarily exposed healthy residents to mortal danger. (b) At Eatonville, despite knowledge of an outbreak at the Facility, residents exhibiting symptoms of COVID-19 were not tested for several days, reportedly due to the lack of testing swabs. The failure to test these residents for COVID-19 was in direct contravention of the Acute Respiratory Outbreak Guide and of Directives 1, 3, and 5. 22 Electronically issued / Délivré par voie électronique : 24-Apr-2020 (c) Court File No./N° du dossier du greffe: CV-20-00640016-00CP At Hawthorne Place, a resident was readmitted to the home on March 30, 2020 and later tested positive for COVID-19. This individual was not isolated at Hawthorne Place pending the results of their COVID-19 testing, and continued to have access to shared areas, putting the remaining residents and staff at Hawthorne Place in extreme peril. Employee screening and testing 46. The Homes failed to undertake adequate screening and testing measures for staff working in close contact with presumed, suspected, or confirmed cases of COVID-19. Despite being aware or willfully blind to the fact that staff members were working at other retirement home and long-term care facilities where they may have come into contact with presumed, suspected, or confirmed cases of COVID-19, the Homes failed to screen or test staff members. Inadequate Staff and Inadequate Communication and Psychological Harm 47. The Defendants failed to ensure that adequate staff were in the Homes to provide the expected and proper standard of care to residents. Exacerbating the inadequate staffing, many of the Homes were locked down, preventing visitors who could check on the well-being of their loved ones. At the same time, the Homes failed to provide the expected and reasonable level of communication to families of residents. 48. By way of example: (a) Prior to the Pandemic Period, Anson Place had a self-professed "staffing crisis.” The spread of the COVID-19 infection among staff members made 23 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP the staffing crisis worse. And yet, as staffing numbers worsened throughout the Pandemic Period, management at Anson Place took no steps to ameliorate the situation. For example, Anson Place received an offer from the province of Ontario to supply a "SWAT team" of hospital workers to help manage its COVID-19 outbreak. Anson Place refused the Province’s offer, saying that with its current staffing levels, it was “comfortable that we are currently able to meet the care needs of our residents.” (b) During the Pandemic Period, Anson Place failed to provide the expected and reasonable level of communication to families of residents. Indeed, at least some family members were unable to reach residents living in the home at a time when these residents were sick. Phones calls to Anson Place went unreturned. (c) At Eatonville, one family received a call from management of the home because a resident was complaining of being neglected, including because he was not being adequately cleaned after soiling himself. This resident died on April 11, 2020. He was never tested for COVID-19, and the only communication that family received indicating that he suffered from COVID-19 was when they were provided with the death certificate from the funeral home that listed the cause of death as COVID-19. 49. For those Class Members who survive the outbreak of COVID-19 in the Homes, they have endured harsh and intolerable treatment. They were locked down in their 24 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP rooms, fearing for their safety and lives, knowing other residents were dying around them and unable to visit with their loved ones and family members. G. 50. NEGLIGENCE The Defendants owed a duty of care to the Plaintiff and the Class with respect to the management of the Homes during the COVID-19 pandemic. The Defendants breached this duty of care to the Plaintiff and Class by failing to properly and adequately plan for and respond to the COVID-19 pandemic, by failing to implement adequate sanitary measures to mitigate the risk of transmitting the disease between the staff and residents of the facilities, when they knew, or ought to have known, that having adequate PPE and sanitary measures were required to protect the health, safety, well-being and dignity of the residents, by failing to have adequate staff within the Homes to care for the residents in a safe and competent manner, by failing to communicate adequately with families of residents, and by repeatedly failing to comply with public health guidance and directives. 51. The Defendants knew, and it was reasonably foreseeable, that the Plaintiff and the Class Members would trust and rely on the Defendants both to plan for acute respiratory infection outbreaks and to execute an outbreak plan. 52. The standard of care reasonably expected in the circumstances required the Defendants to properly and adequately plan for and respond to the COVID-19 pandemic, implement adequate sanitary measures to mitigate the risk of transmitting the disease between the staff and residents of the facilities, to care for the residents in a safe and competent manner, communicate reasonably with families of residents, and to act 25 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP reasonably to ensure compliance with public health directives and guidance with respect to acute respiratory infections generally and to the COVID-19 pandemic specifically (together the “Minimum Standards”). The negligent failure of the Defendants to ensure compliance with the Minimum Standards is the direct and proximate cause of damage to the Plaintiff and the Class. 53. In the alternative, the Defendants’ negligent management of the Homes during the COVID-19 pandemic materially contributed to the damages of the Plaintiff and the Class. H. 54. BREACH OF FIDUCIARY DUTY Given the circumstances of the relationship between the Defendants and the Class members, including, but not limited to, the statutory obligations, authority, and responsibilities of the Defendants, the Defendants undertook to act in the best interest of Class members and to act in accordance with the duty of loyalty imposed on them. 55. The Defendants owed the Class, as vulnerable individuals in their care and control, fiduciary duties that included a duty to care for and protect them and to act in their best interests at all times. The Class Members had a reasonable expectation that the Defendants would act in their best interests with respect to operating and managing the Homes during the COVID-19 pandemic by virtue of the vulnerability of the Class members resulting from their age, condition, the nature of the care provided by the Homes, and the Defendants’ complete control over the Homes during the COVID-19 pandemic. 26 Electronically issued / Délivré par voie électronique : 24-Apr-2020 56. Court File No./N° du dossier du greffe: CV-20-00640016-00CP The Defendants breached their fiduciary duties to the Plaintiff and the class by failing to ensure compliance with Minimum Standards. The Class members were entitled to rely and did rely on the Defendants to their detriment to fulfill their fiduciary obligations. I. 57. BREACH OF CONTRACT The Defendants entered into contracts with residents for the provision of care services at the Homes in which they agreed to provide adequate care and safety. The Defendants breached this contract by contravening the Minimum Standards. J. 58. DAMAGES As a result of the Defendants’ negligence, breach of contract, and breach of fiduciary duty, the Plaintiff and Class Members are entitled to general damages, including damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, for: (a) Loss of life; (b) Failure to provide contractually agreed-upon services; (c) Pain, suffering, anxiety and psychological trauma suffered by Class Members having gone without adequate care; (d) Emotional distress suffered by family members as a reasonably foreseeable consequence of the Defendant’s negligence, breach of contract, and breach of fiduciary duty; (e) Funeral expenses; 27 Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP (f) Loss of guidance, care and companionship; and (g) Cost and damage resulting to Class Members who had to remove residents from a Home, including the resulting psychological stress and anxiety. 59. The Plaintiff and the Class suffered losses or damages as a result of the Defendants’ conduct. It is appropriate that these damages be assessed on an aggregate basis under section 24 of the Class Proceedings Act. K. PUNITIVE DAMAGES Through their collective mismanagement of the COVID-19 pandemic, the Defendants have displayed wanton disregard for both residents and their families – some of the most vulnerable members of our society. This Court should order the Defendants to pay substantial exemplary and punitive damages. The wanton failure to protect the lives and well-being of some of the most vulnerable members of our society and their families shown by the Defendants is a marked departure from the standards expected of Ontario retirement and long-term care facilities in response to an acute respiratory infection outbreak and demonstrates callous and reprehensible behaviour deserving of an award of punitive damages. L. 60. WAIVER OF TORT In the alternative, the Plaintiff and the Class claim disgorgement of the benefits received by the Defendants on grounds of waiver of tort. 28 Electronically issued / Délivré par voie électronique : 24-Apr-2020 61. Court File No./N° du dossier du greffe: CV-20-00640016-00CP The Defendants committed multiple wrongs as described above. These wrongs conferred benefits on the Defendants, in the form of additional revenues, that they would not have acquired but for their wrongdoing. 62. The misconduct was motivated by the Defendants’ desire to maximize the amount of profits they could reap from Class Members, who were vulnerable to the conduct of the Defendants. 63. There is no legitimate justification for allowing the Defendants to retain the profits derived from their wrongdoing. An award of compensatory damages against the Defendants would be an inadequate remedy and would fail to deter the type of misconduct exhibited by the Defendants. 64. It is appropriate that disgorgement of profits be assessed on an aggregate basis for the Class. M. 65. PLACE OF TRIAL The Plaintiff requests that the trial of the Action take place in Toronto. April 24, 2020 TYR LLP 180 John Street Toronto ON M5T 1X5 Pinta Maguire (LSO # 52600U) Email: pmaguire@tyrllp.com James Bunting (LSO # 48244K) Email: jbunting@tyrllp.com Sean Campbell (LSO #49514J) Email: scampbell@tyrllp.com Lawyers for the Plaintiff 29 Plaintiff ONTARIO SUPERIOR COURT OF JUSTICE Court File No. STATEMENT OF CLAIM PROCEEDING COMMENCED AT TORONTO Defendants RESPONSIVE GROUP INC. ET AL Lawyers for the Plaintiff James Bunting (LSO # 48244K) Email: jbunting@tyrllp.com Tel: 647.519.6607 Fax: 416.987.2370 Sean Campbell (LSO #49514J) Email: scampbell@tyrllp.com Tel: 416.527.3934 Fax: 416.987.2370 Pinta Maguire (LSO # 52600U) Email: pmaguire@tyrllp.com Tel: 647.588.4498 Fax: 416.987.2370 %[SetBloc k('LDHeader')] %[Endblock] -and- %[SetBlock('PTHeader1')]%[Endblock] MICHAEL MCCARROLL IN HIS PERSONAL CAPACITY AND AS EXECUTOR OF THE ESTATE OF RUBY ANNIE MCCARROLL Electronically issued / Délivré par voie électronique : 24-Apr-2020 Court File No./N° du dossier du greffe: CV-20-00640016-00CP