A class action has now been filed in Alberta in relation to the Covid-19 outbreak at the Cargill meatpacking plant. No doubt this will be the first of many such suits as we continue to deal with the fallout of the pandemic in Canada. As a business, your liability will turn on what you knew or ought to have known and whether you took reasonable care to prevent an outbreak arising from your operations. Knowing how these cases will be decided can help you, as a business owner, avoid liability should an outbreak be linked to your operations. 5 basic things to ask yourself:
1. Is my business, at minimum, following all of the government/health guidance?
Stay informed throughout the pandemic and exercise precautions appropriate for your business. Compliance with guidance from government and health authorities Is the bare minimum. Take all reasonable steps to protect your staff, customers and visitors to your premises and go beyond the bare minimum. Requiring masks for employees and visitors, ensuring appropriate distancing, increased sanitization of surfaces, ensuring ventilation of the premises, Installing protective barriers, and ensuring frequent hand-washing are some of the steps you can consider now. You should consider doing more than what your local government may be advising. Simply following the bare minimum precautions may not be enough to protect your business from liability in the case of a lawsuit.
2. How can I minimize the impact to my business if I learn of infected person having been on the premises?
Keeping a daily log of visitors so that you can do your own contact tracing alert To potentially infected people is one way to minimize impacts. Consider privacy issues before publishing a name and consult a lawyer if you are not sure how to handle the notifications. Locking down and sanitizing the areas that the infected person was in contact with is another. There are companies offering Covid-19 specific cleaning services that can be retained for this.
3. I have experienced an outbreak, what is the impact of making changes to prevent another one? Will that be used against me?
Making corrections after an outbreak will not assist with defending a lawsuit from the first outbreak and can be used as evidence that you had insufficient precautions in place prior to the outbreak (though our Courts are supposed to give little weight to that evidence, it can be prejudicial). That said, the risk of not making corrections is greater: if you fail to do so and experience a second outbreak the failure to learn from your mistakes will definitely be used against you in the second action.
4. I’m not an infectious disease expert, why is this my responsibility?
As a business owner, you will be held to the standard of care expected of a reasonable business owner in all of the circumstances. The Court will ask how a reasonable business owner in your business would have informed themselves and what precautions they would have taken. The Court may look at what others in your industry did or may extrapolate what constitutes reasonable from the specific facts relevant to your operations and what you knew or ought to have known at the time the outbreak occurred.
5. If I have everyone who enters the premises sign a waiver, will that protect me?
The short answer is probably not. A waiver in the absence of proper reasonable precautions will almost certainly not protect you from liability. A waiver that is not clear or timely, or specific enough, or not properly communicated, or worded improperly will not protect you from liability. That said, waivers have some value in warning and encouraging people to address their minds to the issue and can discourage suits.
As always, consult counsel if you have questions. The above is general legal advice but can not account for every specific situation. Brownlee LLP provides advice to many businesses and defends them in litigation of all types, including class actions.
“Every battle is won or lost before it is fought“ -Sun Tzu