Liability to the Public in the Era of COVID-19
As the province of Ontario begins reopening, businesses will need to take steps to ensure the safety of the public and their employees given COVID-19. The government of Ontario has recently published industry-specific guidelines to assist employers with keeping workers and the public safe. These can be found at: https://www.ontario.ca/page/resources-prevent-covid-19-workplace. More information regarding COVID-19 and employment issues can also be found here.
Ontario’s Occupiers’ Liability Act requires businesses to take reasonable care to ensure the safety of those entering their premises. Theoretically, an occupier (such as a retail store, restaurant, medical or dental office) could be found liable to a customer who contracts COVID-19 from attending at their premises. Recent news reports reveal that lawsuits have been commenced alleging negligence on the part of Princess Cruise Lines¹ as well as various Ontario nursing homes².
A business which opens to the public but fails to properly screen its staff and/or customers who enter the premises, does not properly clean or disinfect, or which fails to take other reasonable care such as social distancing, could expose itself to liability. Every situation will be unique, and the risk of exposure to liability may be greater depending on the nature of the business.
For example, when hair salons or clinics open, employees may need to engage with customers without being able to socially distance. If these employees are not screened and/or provided with personal protective equipment and a customer contracts the virus, there could be exposure to liability. In contrast, the risk of exposure to liability may be much lower for a grocery store which fails to screen customers as they enter a store.
In the case of a business which is reopening to the public, one issue which may arise is the extent to which a customer voluntarily assumes the risk of contracting COVID-19 by entering the premises. Depending on the nature of the business, it may be wise to warn members of the public of their assumption of risk. For higher risk activities such as the provision of health or dental services, operators may wish to have customers sign a waiver confirming that they accept the risk of contracting the virus.
Every situation is unique, and there are numerous other issues which will arise in the context of COVID-19 related civil actions including: (a) causation – where did the customer actually contract the virus?; and (b) damages – what financial loss did the customer or their family suffer?
If you are a business in the processing of reopening to the public, we encourage you to contact our Kanata office for a no obligation consultation today.