Should the Government Grant Immunity From Civil Lawsuits Related to COVID-19?

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The Ontario government is considering granting immunity from civil lawsuits related to COVID-19. Other jurisdictions have already done so to varying degrees. In New York, Governor Cuomo signed legislation immunizing health care providers for medical decisions that they make in the course of treating victims of the pandemic. (Reported in the New York Times.)

Similarly, in British Columbia, the government has shielded essential service providers from liability for damages relating to COVID-19. Immunity may be available if services are provided in accordance with all applicable emergency and public health guidance.

The CBC reports in the article “More and More Claims: Pandemic lawsuits could tie up courts for years” that at least 19 proposed class action lawsuits across Canada have been identified. Eight of them are against senior homes. “Other COVID-19 lawsuits involve airline travellers refused fare refunds, businesses looking for compensation against insurance companies not paying interruption insurance… class action against Ticketmaster for its refusal to issue refunds for events …”

There are pros and cons to shielding organizations from civil liability. The CBC reports that Donna Duncan, the CEO of the Ontario Long-Term Care Association, states that “Civil liability protection is a necessary measure to stabilize and renew Ontario’s entire long-term care sector… Without it, many insurance companies will cease coverage and long-term care providers would be unable to continue operating.” 

However, personal injury law firm Thomson, Rogers has a different point of view. They reported to the CBC that they believe no immunity should be granted to long-term care homes or their owners. They allege that these homes created unsafe environments. Thomson, Rogers is currently pursuing a class action lawsuit for $15 million in damages on behalf of residents of Woodbridge Vista Care Community and their families.

I see advantages and disadvantages to shielding companies from civil liability. On one hand, companies acting in good faith with reasonable procedures should not be tied up in years of litigation over claims. As of now, our court system is antiquated, slow, and unaffordable for many litigants. On the other hand, we should avoid immunizing large companies from responsibility for negligent practices.

In the article “McConnell’s Rush to Protect Businesses Endangers Everyone Else“, the New York Times editorial points out that “immunity doesn’t just shield the worst actors; it also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and customer health and safety.”

Perhaps the best way to answer the question “should the government grant civil immunity?” is to ask what is in the best interest of the public. In “Online Courts and the Future of Justice”, Richard Susskind states that people want outcomes. “What does this mean for lawyers and the courts? It follows that litigants do not really want courts, judges, lawyers, rules of procedure, and the rest. More likely, they want not to have a problem at all. Or to have their disputes resolved fairly and with finality…” Susskind encourages us to look for the purpose or goal of what we deliver and not with how we deliver it.

Is there another way to hold companies responsible and protect the public outside of the court system?

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)

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