What class-action lawsuits in past pandemics can teach us

By LegalMatters Staff • Past pandemics can provide a lesson as we consider the possibility of class actions arising from the coronavirus crisis, says Toronto class-action lawyer Margaret Waddell.

In a presentation to the Ontario Bar Association (OBA), Waddell, a partner with Waddell Phillips Professional Corporation, referred to a proposed class-action lawsuit filed on behalf of people infected during a second wave of the SARS outbreak.

In Williams v. Ontario et al., a woman who was a surgical patient at a Toronto-area hospital in May 2003 brought a proposed class action on behalf of individuals who contracted SARS in the second wave of that epidemic.

“The plaintiff alleged that the easing of infection control procedures was premature and led to the second outbreak,” Waddell says.

Failed to provide proper directives

According to the judgment, the woman claimed that “Ontario’s failure to control the first outbreak of SARS led to SARS II, that it failed to have in place a proper public health system to adequately deal with outbreaks such as SARS, that it failed to issue proper directives to hospitals to control or limit the spread of SARS and that it prematurely lifted the state of emergency before the first outbreak of SARS was eradicated.”

The court heard that when the woman was still in hospital, the province “announced that SARS had not been completely contained, and shortly thereafter all hospitals in the Greater Toronto Area were ordered to reinstate heightened infection-control procedures.”

At issue in the case was whether Ontario owed “a private law duty of care to the plaintiff sufficient to ground an action in negligence for damages.”

However, Waddell says the “claim was struck out as disclosing no cause of action against the Attorney General of Canada, Ontario and Toronto,” because that threshold was not met.

“The government’s duty is owed to the public as a whole, not to the individual, and a breach of that duty, or breach of statute, does not give rise to a private law cause of action,” she tells the OBA. “Decisions and actions taken by public authorities in response to SARS are not actionable.”

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Waddell says the court found the lawsuit failed because it did not meet the test for establishing that the governments owed a private law duty of care in addition to their duty to act for the public welfare.

“The fact that the plaintiff contracted SARS while she was in the hospital does not put her in a narrow class of individuals in a direct relationship with Ontario,” she quotes from the judgment. “When assessing how best to deal with the SARS outbreak, Ontario was required to address the interests of the public at large rather than focus on the particular interests of the plaintiff or other individuals in her situation.

“The public officials charged with the responsibility for imposing and lifting such measures must weigh and balance the advantages and disadvantages and strive to act in a manner that best meets the overall interests of the public at large.”

Claim struck out

Waddell says before SARS, a similar claim was made in respect of the West Nile virus, the basis for Eliopoulos Estate v. Ontario., which was another case in which a claim brought against the government was struck out.

“The plaintiff alleged that the province owed a private law duty of care to prevent the spread of West Nile virus, relying upon its statutory duties under the Health Protection and Promotion Act (HPPA),” she says in her presentation.

However, in that case, the court found “these important and extensive statutory provisions create discretionary powers that are not capable of creating a private law duty. The discretionary powers created by the HPPA are to be exercised, if the Minister chooses to exercise them, in the general public interest.”

“They are not aimed at or geared to the protection of the private interests of specific individuals,” the court ruled, adding “a general public law duty of that nature does not give rise to a private law duty sufficient to ground an action in negligence.”

‘This is now’

“That was then, this is now,” Waddell says, noting that the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 precludes claims respecting many governmental functions.

She says acts of a legislative nature nullify negligence claims against the Crown relating to functions that include the development or introduction of a bill, the enactment of an Act, the making of a regulation, making regulatory decision, or failing to make regulatory decisions.

As well, under policy decision provisions, “no cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter,” Waddell says.

“A policy matter includes a long list of conduct, including funding programs and initiatives or termination thereof,” she adds. “So, decisions of the Ontario government about what funding it will provide to respond to COVID-19 is immune from suit.”

Waddell also says under the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 “no proceeding may, without leave of the court, be brought against the Crown or an officer or employee of the Crown in respect of a tort of misfeasance in public office or a tort-based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions.”

In large measure, therefore, the provincial government has immunized itself against lawsuits for how it handles a public health crisis, she says.

All at risk

Waddell tells the OBA that, unlike the province, hospitals, hospices, health-care providers, long-term care facilities and retirement homes, corporations or businesses are all at risk of a class proceeding.

That includes “any entity that has engaged in a systemic practice that falls below the standards set by local, provincial and federal public health authorities, causing infection, or risk of infection to multiple people/employees,” she says.

Among the torts that might be asserted:

• Negligence in institution for failing to implement infection control measures, or to adequately supervise their enforcement, leading to spread of infection;
• Negligence in institution for failing to promptly undertake outbreak protocol once infection identified;
• Breach of Human Rights Code, RSO, 1990, c. H.19, for failure to provide equal treatment with respect to services, goods or facilities, because of age or disability (which includes illness)

Potential defences to a class proceeding were also identified by Waddell, including:

• Lack of commonality – the inability of the plaintiff to prove that the infections suffered by the class were caused by the defendant’s negligence (community spread);
• Met the standard of care, in a quickly changing dynamic, with rapid changes in directions from health authorities from municipal to world levels;
• No vicarious liability for a rogue infected employee;
• No vicarious liability for the spread of infection by a person under the institution’s care, if all appropriate precautions were in place;
• Decisions based upon medical ethics standards, and allocation of resources based upon limited resources, that meets the standard of care;
• No higher duty of care owed to front line care providers by institutional employers;
• No breach of the Human Rights Code, when decisions based on finite resources and matters of public health and safety.

“While the likelihood of success in any class actions against institutional defendants arising from their response to COVID-19 will depend in large measure on how proactive the institution was in complying with government and health authority directives, what is certain is that we are bound to see a number of actions commenced, where clusters of infections or deaths have occurred,” Waddell says.