Daniel Romano, BCL, LL.B., MA; Antonio Ostrica, LL.C., LL.B., LL.M.

From the “What-else-can-we-add-to-this-Apocalypse” department, many people are beginning to worry about legal implications resulting from the COVID-19 pandemic. In business law we will see many breaches of contract. In landlord tenant law, we expect more than a few leases going unpaid or completely abandoned. In real-estate law we expect people wanting to back down from offers to purchase. In family law we are already seeing a lot of action with respect to visitation during lockdown and adjusting support payments during the economic downturn. More than a few people have decided that a divorce is the best way to move forward. In elder law we already have two class action suits against the Province for several failures relating to long term care standards. And in criminal law, we hear from the police that there is a surge in reports of domestic violence. But what about individual liability for spreading the virus?

Yes, in theory an individual can be sued by another individual in Court for spreading the COVID-19 virus. As usual, a plaintiff would have to prove “fault”, “causation” and “damages”. All three steps of this formula will be challenging. Before the lockdown began, if someone were asymptomatic and did not know that they were contagious, it would be hard to find fault for any of their behaviour. It is a different story if they knew that they had symptoms upon returning from a trip abroad, and then decided to go and visit their elderly parents in a retirement home.

Even if fault is proven, we also must prove causation. Depending on the circumstances, it will generally be almost impossible to prove medically that it was specifically the defendant and not someone else who spread the virus to the victim. Causation would have to be proven through legal presumptions which is basically an exercise in convoluted logic. An example would be the following: “Victim X was at home on the 12^th day of her own complete social isolation when Defendant Y came to visit, not disclosing that he had some symptoms. Victim X saw nobody else during this time but began developing symptoms on Day 15. Therefore, it must be Defendant Y who transmitted the virus to Victim X.”

Finally, the question of damages will be very interesting. Most cases of COVID-19 are minor. So even if you could prove fault and causation, it does not make sense to instigate a difficult case against someone for having caused a minor inconvenience. A lawsuit begins to make sense when the repercussions of the faulty behaviour are more serious. In the cases where the COVID-19 infection had a major impact, or even proved fatal, it appears that most of the victims were already suffering from other ailments. The detailed opinions of medical experts will be necessary to prove that it was specifically the COVID-19 infection that caused the damages. The defendants will of course hire their own legal experts to counter the claim. If causation is clearly established, however, the general rule in law is that “you take the victim as they are.” If someone is already immunocompromised and the virus is clearly identified as having caused their suffering, then the defendant who is at fault for causing their infection is fully at fault for those resulting damages.

Civil liability is not the only way that one can find themselves having to pay money for their actions during this period. People are also being fined amounts in the hundreds and thousands of dollars for breaking distancing rules. In such cases, the authorities do not need to prove fault, causation or damages. All that they need to prove is that you broke the rule. These rules and penalties may seem necessary and reasonable to some and draconian to others. Regardless of where you stand on the issue, people have a right to question by what authority our three levels of government can order us not to have guests over for Easter or Passover, or for the first BBQ of the season. We will dedicate next month’s column to answering these important questions.

Antonio Ostrica and Daniel Romano are attorneys with KALMAN SAMUELS, a family law firm.

Dear Reader, these articles are published in order to provide you with some general information about interesting legal topics and not as a legal opinion. Please do not try to hold the author, KALMAN SAMUELS – Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend that you consult with a qualified attorney.