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COVID-19 mandates have become increasingly politicized over recent months. The many who descended on Parliament Hill in late January to protest COVID-related government restrictions are one extreme example of the rising dichotomy in Canada. However, what many Canadians may be unaware of is that their responsibilities under the law are far more expansive than just those prescribed by government mandates.  

The neighbour principle

Donoghue v Stevenson, a 1932 decision from the House of Lords, established a legal concept that became known as the “neighbour principle”. Simply put, the decision held that you “must not injure your neighbour”. This decision laid the foundation for the legal concept of negligence, whereby a person can be held liable for their negligent conduct if that conduct causes injury, loss, or damage to another. Regardless of any government mandate, under current Canadian law a person is required to take reasonable care to avoid acts or omissions that they can reasonably foresee would likely injure their “neighbour”.

Collective responsibility

In this pandemic, we owe a legal responsibility to each other for each other’s safety.

As an example, if a person is aware or ought to have been aware that they are COVID-positive and chooses to attend a party, they could likely be found personally liable for infecting another partygoer. The liable person could be ordered to pay any damages arising therefrom, such as lost wages and medical expenses of the person they infected.

When the pandemic started, the Ontario government recognized that such a scenario could become a frequent occurrence.  Both individuals and entities such as restaurants could be held liable for not taking all reasonable care to limit the spread of COVID-19. Accordingly, the government enacted legislation in an attempt to limit such claims. This legislation is called the Supporting Ontario’s Recovery Act (theAct”).

The Act states that:

  1. “No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,
    • at the relevant time, the person acted or made a good faith effort to act in accordance with,
      • public health guidance relating to coronavirus (COVID-19) that applied to the person, and
      • any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
    • the act or omission of the person does not constitute gross negligence.”

Public health implications

This means that, for a person or entity acting in compliance with all guidelines and laws, including public health recommendations, they can rely on the Act as a defence to a lawsuit claiming their actions caused the spread of COVID-19. However, if they are not making good faith attempts to comply with these guidelines and laws, they likely cannot rely on the Act as a defence.

In theory, even if the government removes all restrictions, a person who fails to comply with public health guidance and infects another person with COVID-19 cannot rely on this defence. They can be held personally liable for the resulting damages.

Regardless of government restrictions, under Canadian law we all owe a responsibility to each other. The law is clear. Political beliefs aside, we must take care of our neighbours.

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