There has been a lot of reporting over the past few days about the number of COVID-19 infections, and outbreaks, in long term care homes in Ontario and Quebec.

This presents a serious problem to people living and working in those facilities, as the mortality rate for those over 65 who have co-morbidity (which includes the vast majority of those in long term care) is much higher than for the rest of the population.

First, some numbers to give us context for this discussion:

Ontario has approximately 626 long term care facilities, and nearly 70,000 residents in long term care. Of those 626 facilities, 118 had COVID-19 outbreaks as of April 15. For those of you doing the math in your head at home, that’s 18.8%, or nearly a one in five chance that the long term care home that your aunt, mother, father or grandfather lives in will have an outbreak. It has been reported that long term care residents have accounted for 40% of the COVID-19 related deaths in Ontario. 

Many of us have read about long term care homes where 20 or 30 people have died in such outbreaks, and that kind of news is devastating to read. 

The Ontario government announced on April 15 that it would no longer allow people to work in more than one long term care facility at a time. A number of commentators have already asked the obvious question: Why did it take so long to make this decision?

This rate of infection and outbreak, and the resulting death toll, is sure to lead to litigation (potentially in the form of class actions) against the facilities, and perhaps also against directors and officers of those facilities, as well as the provincial government.

While there is no tort of “wrongful death” in Ontario, there certainly will be claims for general damages for “pain and suffering” and Family Law Act claims for the loss of “care, guidance and companionship”.

Hard questions will be asked about staffing levels, the adequacy of available PPE (personal protective equipment), whether or not staff were working at multiple facilities, and why that might have been the case. Facility management will be asked why they did not move to limit employees working at more than one facility prior to the order from the provincial government. Boards (and likely the provincial government) will be asked why this was ever allowed in the first place.

From an insurance perspective, it is likely that these claims will fall under the general liability coverage that the facilities carry. However, depending on the nature of the claim, it is possible that we will see some spill-over claims against D&O policies, or perhaps E&O policies. Creative plaintiff’s counsel may allege that corporate boards could have done more, and done it faster, in order to prevent the spread of the virus within a particularly vulnerable population.

While most D&O policies have a specific “bodily injury” exclusion, it remains to be seen whether or not that exclusion is broad enough to apply in every case. E&O policies issued to these facilities are unlikely to contain such an exclusion.

While these scenarios are the most public at the present time, they certainly will not be the only scenarios that give rise to COVID-19 lawsuits. How many claims will we see from families of medical workers and others who were deemed “essential”, and who, as a result, contracted COVID-19 and either died or had serious medical complications as a result?

The collapse of the stock market in the days following the NBA’s suspension of its season may give rise to claims against financial advisors, and potentially against boards of directors, for failing to have appropriate insurance against the risk of a pandemic. This may be especially true with such extensive media coverage of the various responses from the insurance industry, and the fact that certain professions and industries were carrying “pandemic coverage” while many others were not.

One recent story mentioned specifically that while Marsh (and likely other brokers as well) had offered pandemic coverage to its insureds prior to COVID-19, no one had purchased the coverage. Any board of directors that was offered such coverage and turned it down will be regretting that decision at this point.

It is certainly early, and the courts are still (mostly) closed, so it may take a while for the COVID-19 litigation to really get going in Ontario, but it is certainly only a matter of time. Insurers and insureds would do well to be prepared for a wave of such litigation. Clear and concise records of decisions made before, during and after this crisis will certainly go a long was to assisting insurers and insureds in defending such litigation.

Mikel Pearce

Mikel (pronounced “My-Cle” or “Michael”) is a trapeze artist trapped in the body of an insurance defence and coverage lawyer. His name might suggest that he is Catalan Spanish, but no one in Mikel’s family is Spanish. Or Catalan. Although he does like cats.

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