Coronavirus lawsuits are now making their way through the courts. Learn more about Canadian law in this area and what types of suits might be successful.
Coronavirus Lawsuits
With the COVID-19 pandemic sweeping the globe, many people are wondering about legal liability with regard to the virus. Can a lawsuit be brought against someone who infects you with the virus? Can a manufacturer promising a COVID cure be sued? Could consumers bring a suit against companies that are price-gouging for essential goods? What about employees who feel their employers are failing to protect them adequately against the virus? Let’s look at a few legal questions about the coronavirus and how our laws might apply.
Spreading the Virus
No one wants to catch the virus. Although many people recover relatively quickly, others (dubbed “long-haulers”) suffer effects for months after being infected. And of course, the disease can be fatal, particularly for seniors and those with underlying conditions that make them vulnerable. Over the past several months, we have received plenty of advice from public health officials to help us avoid catching the virus. These include washing your hands frequently, wearing a face covering to protect those around you, staying home as much as possible, staying at least two metres away from others, avoiding contact with people outside your own household, and refraining from travel. We’re also advised to get tested if we have symptoms of the virus, and to self-isolate. But what happens if someone ignores those restrictions and consequently passes the virus on to you? Do you have legal recourse?
In Canada, a person can be held liable for their conduct if it causes “injury, loss, or damage to another that was reasonably foreseeable.” In a 1932 decision from the English House of Lords, Lord Atkin noted that "the rule that you are to love your neighbour becomes in law you must not injure your neighbour." This case provided the basis for Canadian negligence law, which is premised on the principle that we are each responsible for one another’s safety. Since it is clear that following public health protocols is intended to protect those around us, what if someone knowingly infects another person with COVID-19? Previous case law has established that people do bear some legal responsibility when it comes to knowingly passing on disease. In the case of R. v. Cuerrier [1998], for example, the Supreme Court of Canada found that the accused’s failure to disclose his HIV status amounted to fraud, vitiating consent to sexual intercourse. Bell v. Ginsberg resulted in a similar finding, stating that the husband had a duty of care toward his wife to disclose his high-risk extramarital activities.
It’s common knowledge that the virus is highly contagious and by now everyone should know the safety protocols to follow. Based on these rulings, it seems clear that someone who is either suffering from COVID-19 or exhibiting symptoms may be held liable in negligence if they defy quarantine restrictions, place themselves in close proximity to another person without disclosing their illness, and transmit the virus. People found liable for spreading the coronavirus could face very large liabilities, since they’d be responsible for medical costs and income loss, plus compensation for any long-term effects. However, the contagious nature of the virus may make it difficult to prove exactly how any given person contracted COVID-19.
Failure to Protect
One area where it might be easier to successfully pursue a suit for liability in negligence is that of failure to adequately protect those in your employ from the virus. Employers have a clear responsibility to provide safe working conditions, and some have demonstrably not done so. For example, meat-packing and meat processing plants in Ontario, Alberta, Quebec, and BC have closed due to COVID-19 outbreaks. The Cargill plant in High River, AB, has been named as the source of 1,500 community cases and at least one worker has died of the virus. Toronto has recently begun to name companies with outbreaks, including DECIEM Inc., Sofina Foods Inc., whose products include the brands Mastro and Lilydale, and the circuit-board manufacturer TTM Technologies. City councillor Joe Cressy, chair of the city’s board of health, says, “Not only is reporting on workplace outbreaks important for transparency, to better inform the public and in turn inform behaviour, it’s critical for workplace safety because it draws attention to unsafe settings and thus holds both employers and governments accountable to make improvements.”
Some of the worst COVID-19 outbreaks in Canada have occurred at long-term care homes for the elderly. These homes house some of those most vulnerable to the virus, and the Globe and Mail reported in October that 80% of Canada’s first-wave COVID deaths occurred in LTC facilities. The Public Health Agency reported that although Canada ranked 79th out of 201 countries in terms of total cases per million population, it has one of the highest fatality rates among long-term care residents out of the 37 countries in the Organization for Economic Co-operation and Development. Already, several class action suits have been filed against provincial governments and the corporations running LTC homes.
The COVID-19 pandemic has affected every aspect of our lives. It will continue to have impacts in every sector, including the legal field.