Schools, private ‘pandemic pods’ could be held liable for COVID-19 outbreaks, legal experts say

By | September 1, 2020

TORONTO — As parents and students grapple with the risk of COVID-19, legal experts warn that schools and those operating private at-home ‘pandemic pods’ could be held liable in the event of an outbreak.

Experts say it’s a complex issue compounded by the fact that neither the federal nor provincial governments have given school boards immunity from legal action in the event that a student contracts COVID-19 on school property.

Toronto-based personal injury lawyer Jasmine Daya says that if a child contracts the virus at school and spreads it to vulnerable family members who then experience loss of income or complications from the disease, the school or school board may be held liable.

However, she notes that a claim would likely only be successful if it could be proven that the school acted negligently.

“That would require an examination of whether the schools and the school boards were following the policies and the guidelines that have been set out by the government and health officials,” Daya, managing partner at Jasmine Daya and Co., told CTV’s Your Morning Tuesday.

With back-to-school plans varying across the country, some parents have chosen to keep their school their kids in so-called “pandemic pods” instead of having their children go back to the classroom.

The idea is that private classrooms would be run by a parent, tutor or school teacher with a small number of elementary-aged children, establishing their own schooling bubble.

But Daya warns this solution could present more liability risk to the person running the operation, particularly if they run it out of their own home.

She notes that under usual circumstances home insurance would cost the cost of injury sustained on private property. But “pandemic pods” may be considered a business venture, which may void that type of coverage.

“If the home is considered to be operating as a school — more of a business environment — the insurer could deny any claims arising from any incidents that occur,” Daya explained

“The problem with this is that the home insurer has exclusionary clauses. So, the homeowner that was hosting this pandemic pod may not be covered and may actually have to pay for the claim from their own pocket.”

COVID-19 WAIVERS UNLIKELY TO PROTECT SCHOOLS

Some schools and private education institutions have also considered requiring parents to sign a waiver indemnifying the school from liability. But experts say there is no guarantee it would stop a parent from pursuing a claim citing negligence or a related offence on the part of the school.

“Just like when we send our children to extra-curricular activities, you have to sign away the right to sue if there is negligence, it doesn’t always mean that waiver is enforceable,” said Daya.

But she notes that, because the courts have yet to rule on issues related to COVID-19 outbreak in the classroom, there is opportunity for a precedent to be set.

“This is a novel area, the courts have yet to see the issue and decide on it,” she added.

Toronto lawyer John Schuman says he’s provided “a couple of clients” with contracts that essentially have parents accept full responsibility if their child gets COVID-19 in a school setting, noting that private schools could be targeted even if they do follow the rules.

“What schools are also worried about is that they’re going to do everything and they’re going to be careful and they’re going to sanitize stuff (but) some kid’s going to walk in and before even getting screened, sneeze on a bunch of kids and spread COVID-19,” Schuman, senior partner at Devry Smith Frank LLP, told the Canadian Press.

“And then they’re going to get sued even if they’ve done everything they could possibly do to stop the virus.”​

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