As COVID issues increase, so will the need for litigation

By Tony Poland, LegalMatters Staff • COVID’s seemingly unrelenting grip could have a profound impact on civil litigation as society grapples with issues involving health care, employment and human rights, says Barrie-area litigator Steve Rastin.

“We appear to be focusing on getting back to life as normal after the pandemic. But let’s assume that this is the new norm. Let’s assume we never get past COVID.,” says Rastin, senior counsel at Rastin Gluckstein. “The reality is that at some point, society may have to adapt to living within the constraints of the coronavirus. If we don’t, my prediction is there is going to be an increasing number of lawsuits.

“I feel sorry for business owners right now. They are damned if they do and damned if they don’t,” he tells LegalMattersCanada.ca. “If they don’t bring in mandatory vaccination policies, they are at the risk of being sued. And if they do bring in mandatory vaccination policies, they’re at risk of being sued. For the good of small business, the government ought to be coming out strong on this issue.” 

On August 13, Canada made vaccinations mandatory for all workers in federal service by this fall.

‘Best way to end the pandemic’

“We are also calling on all federally regulated industries and sectors, and we are also calling on crown corporations to follow suit,” Minister of Intergovernmental Affairs, Dominic LeBlanc told reporters. “We expect the federal public service to want to comply with this mandatory requirement. This is the best way to end the pandemic and allow the economy to remain open safely.”

According to a KPMG poll, 62 per cent of small- and medium-sized businesses in Canada are turning their attention to mandatory vaccination for their employees.

Several of the country’s largest banks will now require some staff to be fully vaccinated against the coronavirus, Global News reports.

Rastin says in addition to ongoing issues with vaccinations and employee rights, society must also deal with so-called COVID long-haulers, which threatens to be “the fibromyalgia of the next decade.”

Long haul COVID could be next health-care crisis

He says there is growing evidence long haul could be the next health-care crisis and have a significant effect on long-term disability claims.

“We are starting to see instances where people, who have been trying to get benefits for several months, are seeking legal advice because their insurance companies refuse to look at their claims. I anticipate that this is going to be a massive battleground as people fight for their rights in court,” says Rastin. “There are a few areas where we are feeling our way with COVID.”

He says there are people opposed to vaccinations, which he adds is within their rights. However, while employers are obligated to make accommodations under the Ontario Human Rights Code (OHRC), those individual rights are not absolute, Rastin says.

Meanwhile, business owners who favour mandatory vaccination or cater to those who have had the COVID vaccine are facing criticism.

“The onus is falling upon business, not governments, to deal with this issue, and that does not seem fair,” Rastin says.

On Sept. 1, the Ontario government unveiled its vaccination passport, which will be required to access non-essential businesses, including concerts, indoor restaurants, movie theatres, gyms and large organized gatherings, starting Sept. 22. 

Still, some business owners have complained that enforcement will be left up to them. And employers will still have to struggle with the vaccination issue within the workplace, says Rastin.

“If businesses implement mandatory vaccinations for employees and people are terminated because they refuse, they are likely to sue,” he explains. “It might be on the grounds that it violates freedom of their body, which is a difficult argument.

Rights are protected under human rights code

“People may have a legitimate medical or religious reason to refuse the vaccine, and their rights are protected under the OHRC. But for individuals who do not want to do or don’t believe in the science, that’s likely not going to be an effective argument.”

Rastin anticipates wrongful dismissal lawsuits for human rights violations and, in the federal sector, involving Charter of Rights and Freedoms arguments.

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Of course, if employers do not impose mandatory vaccinations, they could still face litigation or Workplace Safety and Insurance Board (WSIB) claims, he says.

“If an employee goes into work and contracts the virus from an unvaccinated person, they might file for WSIB,” says Rastin. “That worker may also sue the business owner. So, the business owner faces litigation from both sides of the spectrum when it comes to mandatory vaccinations.”

He says in cases of long-haul COVID where symptoms could prevail for months or years, “a WSIB claim could be substantial.”

As well, business customers who contract the virus from an unvaccinated employee may also decide to sue, says Rastin, adding that owners should no longer assume insurance will cover such cases.

‘Businesses are going to need to review their policies’

“We are starting to see COVID-19 changes in insurance policies,” he says. “Businesses are going to need to review their policies carefully as we advance. If one of your employees spreads the virus and litigation ensue, are you covered?”

Health care has been at the forefront during the pandemic, especially with overburdened intensive care units, Rastin says. But what often gets overlooked is the fallout from medical procedures that have been put on hold during the crisis.

“We know how many people have died due to COVID but do we know how many people have passed away as a result of delayed medical treatment? It may be more than people realize,” he says. “I see a battleground emerging with people whose medical needs are not being addressed.”

Failure to get referrals could have consequences

Rastin says he is starting to hear about cases where people could not get referrals for specialists or even see their family doctor in person and are now facing more dire consequences.

“For example, you have someone who called their doctor with a lump in their throat,” he says. “But their doctor couldn’t see them. Nine months go by before a specialist confirms they have terminal cancer. If it had been dealt with nine months ago, the outcome could have been much different.”

Rastin acknowledges that the health-care system has been overburdened, but change is necessary.

“We’ve been dealing with COVID for close to two years, so the question becomes should the medical system be pivoting faster, especially when it comes to things such as diagnostic testing, referrals to specialists and surgeries,” he says. “People are dying on waiting lists. At some point, there needs to be a balance in health care. What if this crisis goes on for two years or three more years? 

“Eventually, the medical community is going to have to face this new reality. What’s happening is we are waiting for things to return to how they were before COVID. We cannot assume they will.”