Covid-19 related lawsuits: trends

INTRODUCTION

COVID-19 has hit the world in the same manner as the countries are attacked by war. Many nations have adopted the measure of lockdown to tackle with the situation and a number of policies and laws have been introduced so as to adapt in the new situation which the virus has introduced. In past several weeks, it has been observed that there is a rapid increase in COVID-19 related lawsuits in Canada. This has caused serious troubles to many companies against whom the cases are being filed by the people in large number. Many provinces and territories have come out with certain immunities or limited liability policies and some other provinces are in a process to draft such legislations.

FLOOD OF LAWSUITS

Both individual actions and class actions have been filed in a massive number in Canada against several companies. Individual actions include civil matters like suits for insurance, employments, contracts, negligence, personal injury, etc. Following instances represent the lawsuits filed by the customers or clients:

  • The lawsuits have been filed against various Airline companies like Air Canada, Air Transit, etc. when these companies denied the refund of money as their flights were cancelled due to the pandemic.
  • Lawsuits against educational institutions for not refunding the charges paid in advance for parking, etc.
  • When some event organizers refused to refund the money for the tickets as the shows got cancelled, class actions were filed against them also.
  • The suits were filed against insurance companies who refused to indemnify the businesses for their huge amount of losses or shut down.
  • Lawsuits have been filed against many institutions providing long term care facilities by the relatives of the person who have become the victim of COVID-19.
  • Also, employees have also filed claims for the issues such as decreased salaries or unsafe working environment and equipments.
  • Lawsuits under the provisions such as Ontario’s “Occupier’s Liability Act” on the basis of which the persons can file cases against the businesses if they come in contact with COVID-19 due to lack of reasonable care in their premises.

LAWSUITS AGAINST INSURANCE COMPANIES

On refusal to indemnify its customers, the lawsuits have been filed against several insurance companies including many top institutions. On the other hand, these companies are taking the defence of “force majeure” which are again counter argued by people by saying that the pandemic does not come within the ambit of “force majeure” as in the past also restrictions have been caused in the smooth flow of businesses due to “SARS”,”MERS”, Avian flu”, etc. Some of the companies against whom the suits have been filed are “Co-Operators General Insurance”, “Economical Insurance”, “Lloyd’s Canada”, “Intact Financial Corp”, “Aviva Canada”, etc. Aviva Canada’s policies expressly states that they provide the coverage for the “business interruptions’ and “supplementary coverages” and the latter includes coverages for the “outbreaks” with respect to “negative publicity coverage” and “restricted access”. Therefore, the company argued that here the COVID pandemic cannot come within the ambit of “outbreak”.

The chief arguments by the people against the Insurance Companies are:

  • Losses due to the fall in customers visiting the stores as the social distancing rules have been formed due to pandemic or;
  • Revenue loss because of “the costs addressing physical damage to business premises due to the presence, release, discharge or contamination of COVID-19 at the business premises” or;
  • Most of the businesses were instructed for the closure entirely or in part, sue to which they suffered huge losses.
  • Losses due to efforts to stop the spread of COVID-19 virus such as in the processes to disinfect, replacement, etc.

THE COVID-19 RELATED MEASURES ACT OF BRITISH COLUMBIA

In British Columbia, “the COVID-19 Related Measures Act” was introduced on July 8, 2020 to limit the liability of the institutions or persons. Section 5(1) states the protection that no legal proceedings with respect to COVID-19 can be “commenced” or “maintained” against any “person” or class of persons”. However, Section 5(2) provides for an exception that this protection will not be provided in case the matter reflects “gross negligence” on the part of “person” or “class of persons”.

ONTARIO’S PROPOSITION FOR LIABILITY PROTECTION

In Ontario, the “Occupier’s Liability Act” imposes liability on the businesses if they do not take reasonable care and precautions and any person gets affected with COVID-19 from their premises. The provision reads as, “take such care as in all circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises.”

In Ontario, the provisions for the liability protection are introduced under the “Supporting Ontario’s Recovery and Municipal Elections Act, 2020” or “Bill 218”. This Bill was proposed on October 20, 2020 with the object of limiting the liability for COVID-19 related claims. Some of the salient features of this proposed Bill are briefly stated as follows:

  • Shield to workers and businesses- This Bill provides a shield to the workers and the businesses against filing of lawsuits. All the COVID-19 related lawsuits which come within the ambit of the provisions of the Bill would be barred.
  • Elements of “good faith” and “honest” acts- The protection is limited to the lawsuits against the businesses who acted in “good faith” and with honesty in ensuring reasonable care and precautions for COVID-19 on their premises.
  • Principle of retrospection- This Act would apply retrospectively from the date on which emergency provisions were laid for the purpose of tackling with COVID-19 and the said date is March 17, 2020.
  • Exceptions- There are two exceptions stated under this Bill according to which that this Bill does not apply in the cases of “gross negligence” and where the employees were infected with the virus in the course of their employment.

SCHEDULE 1 OF BILL 218

Schedule 1 of the Bill 218 deals with the significant provisions which are the sole object of this Act. It lays down the protection from liability of the persons and with the conditions which are necessary for the preventing such liability. The provision reflects that no cause of action can be initiated or continued if any person get affected with COVID-19 due to any “act or omission” by any person inspite of the fact that the infection from that “act or omission” was caused directly or indirectly. The provision would apply in COVID-19 related cases on or after March 17, 2020. This protection is subject to the following conditions:

  • The person who is seeking protection from liability has acted in “good faith” and in consonance with the “public health guidance” related to coronavirus and has complied with all the rules and regulations as per the municipal, provincial or any federal law related to coronavirus.
  • There was no “gross negligence” by the person claiming liability under this provision.

Under the interpretation parts some terms are defined. “Good faith” refers to an “honest” effort irrespective of the fact that whether that act was reasonable or not. “Public health guidance” includes “advice, recommendations, directives, guidance or instructions” by the “Chief Medical Officer of Health”, an “Associate Chief Medical Officer of Health”, a person who is a medical officer, associate medical officer under the “Health Protection and Promotion Act”, “public health official”, “agency of government of Ontario”, a municipal officer, etc.

PROVISIONS RELATED TO CAUSES OF ACTION UNDER “BILL 218”

It has mentioned some exceptions where the employer cannot be saved from the liability in cases when the employees or workers filed “causes of action”. The following points highlight the same:

  • Where the “cause of action” has arisen due to any “personal injury” or accident or because of any “occupational disease”.
  • Where the “cause of action” is substituted under Section 30 of the “Workplace Safety and Insurance Act, 1997”.
  • Where the basis of “cause of action” is the actual exposure to COVID-19 when the worker or employer was providing services in the course of their employment.

OTHER PROVISIONS OF THE “BILL 218”

Some other significant provisions of the Bill 218 are highlighted as follows:

  • No restriction on any other defence- This Bill does not restrict or limit the defences available in other legislations in common law.
  • Retrospective operation- As it is vividly mentioned that the protection applies to all lawsuits on or before March 17, 2020, therefore, it operates retrospectively.
  • No relief- There is no relief or remedy for the persons whose right to initiate lawsuits have been barred under this Act.
  • In cases of regulations related to closure- There is another exception for the non application of the protection from liability provision which says that where a unit was required to be closed due to operation of any law, protection will not be provided to the persons operating such units.
  • No impact on “Workplace Safety and Insurance Act, 1997”- The “Workplace Safety and Insurance Act, 1997” has the exclusive jurisdiction to decide the cases which fall under Subsection 31(1) of this Act and in case of any conflict between the “Workplace Safety and Insurance Act, 1997” and this Act, the former prevails.

PROTECTION TO “ESSENTIAL WORKERS”

“Essential workers” can be defined as the people who work in the fields which provide essential services. Some examples are health care workers, civil servants, employees at grocery stores, etc. Various lawsuits have been filed by people against the businesses which provide essential services and they were also facing problems in getting their losses recovered from the insurance companies. So, in order to protect these workers from various negligence lawsuits, some provinces of Canada have already introduced limited liability provisions for them such as New Brunswick and British Columbia. These two provinces have provided safeguard to civil servants, cannabis retail workers, oil refinery workers, etc.

“The Minister of Public Safety and Solicitor General” of British Columbia has passed an order dated “Ministerial Order M094” for the protection of “essential workers” from the liability. It says that in order to provide essential services to all the people which is the preservation of “life, health, public safety, and basic functioning”, essential service providers are protected in accordance with this Order. The “essential workers” are immunized against the liabilities which occur directly or indirectly which and are related to COVID-19 pandemic, arising due to the transmission of SARS-COV-2 to other persons while operating with them, provided that these persons “reasonably believe” that they are rendering these essential services in accordance with the policies or legislations as announced in the situation of Emergency. However, this protection is not available in case the workers are “grossly negligent”. This order will be in application till the time the emergency prevails. The attached schedule stipulates all the “essential services” for which these provisions apply. These include “Health and health services”, “Law Enforcement, Public Safety, First Responders and Emergency Response Personnel”, “Vulnerable Population Service Providers”, “Critical Infrastructure Service Providers”, “Food and Agriculture Service Providers”, “Transportation, Infrastructure and Manufacturing”, “Sanitation”, “Communications, Information Sharing and Information Technology”, “Non Health Essential Service Providers”.

CONCLUSION

A lot of people have faced and are still facing losses and obstacles due to this global pandemic. As a result, a huge number of people are filing lawsuits so as to get some compensation for the losses they have suffered. Businesses who do not follow proper guidelines and without taking reasonable care is increasing the chances of persons getting infected from the virus needs to be cautioned and sued.

No doubt, it was pivotal to introduce liabilities for the person who were not taking precautions due to which others were getting infecting from COVID-19, but as there were floods of lawsuits so it became feasible to introduce protections from such liabilities. A few policies and legislations have already been formulated to tackle with the demands and complaints of customers as well as business but still a lot of evaluation and analysis have yet to be done in order to frame more efficient, effective and fair legislations for this purpose.