A Tour Through Pandemic Law for COVID-19

Canada has come a long way since the SARS pandemic in 2003. With the outbreak of COVID-19, here is a non-exhaustive overview of some of the ways that pandemics have come up in our legal system.

Keri Gammon makes the argument in the Dalhousie Journal of Legal Studies that given the need for local implementation, provincial jurisdiction for pandemics is still warranted,

In extreme cases, such as where one province fails to act altogether in respect of a  public health emergency, federal jurisdiction may be required if only on a temporary basis. But with respect to regional differences in public health legislation, such differences should not be dogmatically impugned and subjected to  standardization. Differences in approach do not suggest that provinces have abdicated their responsibility or in any way compromised their ability to protect the health of their citizenry. On the contrary, the very fact of these differences suggests that provincial and municipal governments have acted based on the needs and values of their communities, thereby fullling their responsibility to protect health and, at the same time, preserving local democracy and the relationship between an individual and their local community. In assessing arguments for federal jurisdiction over public health, the unique position and abilities of the other governments must be kept at the forefront of the discussion. Such an approach will likely conclude that in all but extreme circumstances, the provinces must not be divested of primary jurisdiction over public health.

In contrast, Amir Attaran and Kumanan Wilson argue in the McGill Law Journal that Canada has the constitutional jurisdiction under criminal law and quarantine powers, to pass laws for epidemic preparedness and response. More importantly, they state that it is medically desirable to do so. They point out that the existing legislative framework, including the Emergencies Act, includes infectious diseases under public welfare emergencies in s. 5, but requires cases of national emergencies, and not where a problem is confined to specific provinces.

They point to some of the challenges of using this scheme during SARS,

Canadas response to the 2003 SARS epidemic demonstrated some of the limitations of federal and provincial law. 15 After the disease made landfall in Toronto, having been brought by an infected traveler from Hong Kong, it acted as many infectious diseases are expected to do, spreading from person to person within hospitals. How much of this nosocomial, or hospital-based, transmission occurred and how many visitors to the hospital had contact with other uninfected persons in Toronto, necessitating an effort to trace and monitor them for signs of illness, were obviously of extreme interest to public health experts around the world. And yet, the collection and the transfer of this epidemiological information from the provincial to the federal level, and onward to the international level, were not just slow or difficult, but totally dysfunctional.

In response to SARS, Canada created the Public Health Agency of Canada (PHAC), passing the Public Health Agency of Canada Act (PHACA) in 2006. In 2014, PHACA was amended to separate the Chief Public Health Officer’s responsibilities from the head of the agency, by creating a new position to lead the organization.

Pandemics at Work and in the Workplace

Employers have a general duty under s. 25.2(h) of the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.” This provision was invoked in an award in Lakeridge Health Corporation v Ontario Nurses’ Association, specifically to ensure that there were adequate stocks of N95 respirators and other personal protective equipment in the emergence of a pandemic.

Reasonable precautions outside a collective agreement would still include taking steps such as encouraging hygiene, communicating leave policies during a pandemic, or encouraging employees to stay home when they are sick.

Employees are entitled to an unpaid leave of absence under s. 50.1 of the Employment Standards Act, if there is an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act or because of an order under section 7.0.2 of the Emergency Management and Civil Protection Act or the Health Protection and Promotion Act. Although these specific provisions don’t appear to be particularly litigated, the Attendance Support and Management Pilot Program (ASMPP) in Ontario has come up in several labour disputes in the contexts of pandemics.

In 2014-0886 (Re), a health care worker asked the Alberta Workers’ Compensation Board to conclude that she had contracted H1N1 as a result of her employment duties, which included working in immunization clinics and flu screening clinics. A pandemic of H1N1 flu occurred in Alberta in 2009, and the worker was immunized for it in October of that year. The government had discontinued testing while the disease was still active, making it impossible to confirm whether she was positive for H1N1 subsequently.

Although the worker’s employment involved significant exposure to persons infected with H1N1, this was part of her normal job duties. They concluded that on a balance of probabilities she likely did contract H1N1 as she was at higher risk than the general population, and that this was a compensable injury under the Occupational Disease policy, which states,

When a worker contracts an infectious disease as a result of
employment, the worker is entitled to compensation if the
following conditions are met:

  • the nature of employment involves sufficient exposure
    to the source of infection, and
  • the nature of employment is shown to be the cause of
    the condition, or
  • the nature of employment creates an increased risk of
    exposure for the worker.

If a worker, as a result of contracting a compensable
infectious disease, is forced by the terms of the Public
Health Act to lose time from work, the time loss is
compensable, whether or not the worker is disabled.

Health care workers are also routinely involved in the preparation and planning of pandemics. In Simcoe Muskoka District Health Unit v Ontario Nurses’ Association, the Ontario Labour Relations Board did not consider a nurse who had been involved in pandemic planning as exercising managerial functions under the Labour Relations Act. Although the plan resulted in a change of duties for for all of the nurses in the health unit, and the nurse involved advised casual nurses that their services were no longer needed, these roles did not rise to the level of engaging in management,

125. The purpose of the managerial exclusion is to preserve the arm’s length relationship between employees and management necessary for collective bargaining. The primary concern is that persons who exercise managerial functions or have regular access to confidential collective bargaining or labour relations information would be placed in a conflict of interest if they were included in the bargaining unit. The exclusion protects the interests of both management and unions, preventing circumstances in which individuals’ loyalties might be divided between the two. See Corporation of the City of Burnaby [1974] 1 CLRBR 1, at para. 3.

The provision of vaccines was subject to a grievance in Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), during the H1N1 pandemic in 2009. Ontario began a mass immunization program in 2009 by focusing on priority groups, starting with pregnant women, children between 6 months to 5 years, people who live with children under 6 months, people under 65 with medical conditions, immune-comprised people and their caregivers, and those living in remote or isolated communities.

Inmates or incarcerated youth, or Correction Officers or Youth Workers, were not part of the priority groups. However, the inmates at Correctional Facilities, not the staff, were included as part of a federal recommendation for immunization.

By the time the issue reached the Grievance Settlement Board, the pandemic was over. The union pushed for a decision regardless, hoping to extend it to pandemics generally, but the Board decided the issue was moot,

[34] No individual losses or damages have been claimed. The only relief sought is a declaration. But with the passing of the H1N1 crises, the issue of vaccinations for staff – the actual dispute between the parties – ended, and no present live controversy exists which affects the rights of the parties. The reason d’etre of the action has disappeared.

[35] Even if the grievance may be given a broader construction, the same conclusion applies. A decision on the merits would not, in my view, provide future guidance to the parties. It would be an academic exercise only. This is because a decision about the Employer’s obligation to provide a vaccine to its employees during a pandemic is fact specific. Even if I concluded that there was no violation here, that does not mean that in the future, under different facts, an obligation would not arise, or vice versa. The Employer’s obligation to vaccinate employees is something that must be determined in context.

A Private Duty in Pandemics, and Insurance Considerations

In Adam, Abudu v. Ledesma-Cadhit et althe plaintiffs invoked the PHACA as a basis for suing a physician and pharmaceutical company in negligence, after their 5 year old daughter died, allegedly as a result of the administration of the H1N1 influenza vaccination during a pandemic health risk in 2009.

The public vaccination program was a national strategy developed to address this threat, and these were core policy decisions as defined by the Supreme Court of Canada in Imperial Tobacco. Imposing a private law duty of care would create an unreasonable burden that would interfere with public health decision-making.

Justice Chiappetta concluded that the plaintiffs were not owed a private duty of care by the Crown, dismissing the claim as plain and obvious as to fail. Although PHACA creates an obligation to protect Canadians against infectious disease at a national level, it is a duty to all Canadians, and not any individual recipient of a vaccine,

[121] The respective governing statutes are reviewed below. I have concluded that the governing statues cannot properly be construed as giving rise to a relationship of proximity that could ground a civil action because the duty under the respective statutes is owed not to any one individual but to the public at large: CooperEdwards.

[122] The government mandate in each governing statute is to promote and protect the health of the entire population in the context of the spread of communicable diseases generally and the regulation of vaccinations distributed for sale in Canada. The regulators necessarily have broad discretionary powers to balance a multitude of competing interests while identifying and responding to widespread threats to public health. The risk assessment is population-based, rather than individual. The legislative functions are exercised for the benefit of the public as a whole and do not give rise to a private law duty of care to particular individuals or sub-groups of the publicWilliamsEliopoulosAttis, and Wuttunee.
[emphasis added]

The British Columbia Court of Appeal also considered in The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency the issue of a private law duty of care, in the context of federal food inspectors who were allegedly negligent in their inspection of carrots imported into Canada. The plaintiff was an exporter of baby carrots that were sold in Canada at Costco stores across the country.

The inspectors were exercising their powers under the Canadian Food Inspection Agency, regulated by the Canadian Food Inspection Agency Act, and the Canada Agricultural Products Act, and believed they were contaminated by the Shigella bacteria. This conclusion was made with the assistance of PHAC and Health Canada, in concluding through an epidemiological analysis that there was statistical probability that the baby carrots were the source of the illness. After a public warning, a recall from Costco stores in Canada and the plaintiff’s retail stores in the U.S., and destruction of the carrots, it turned out that the carrots were not contaminated at all.

The plaintiffs alleged the following:

[11] The plaintiffs allege that CFIA owes them a duty of care to:

(a) take reasonable steps to ensure the public statements it makes about food products which are sold in Canada are:

(i) accurate and fair;

(ii) based on proper, complete and accurate tests and test results; and

(iii) based on adequate and sufficient information.

(b) ensure that its testing methods, protocols and results are fair, reasonable and accurate;

(c) properly investigate, inspect and test food products;

(d) properly interpret and report the results of such tests;

(e) ensure or take reasonable steps to ensure that it properly identifies the supplier, importer, manufacturer or distributor of food products in any public or private communication; and

(f) provide full and accurate information to any supplier, importer, manufacturer or distributor of food products when it makes statements regarding its food products.

[12] The plaintiffs allege that CFIA breached the duty of care owed to them by failing to exercise the standard of care required. In particular, they allege that CFIA:

(a) made the public announcements without sufficient or reliable information to support the allegations therein. In particular, it lacked a reasonable, factual or scientific basis for concluding that the baby carrots were contaminated;

(b) failed to conduct adequate tests of the baby carrots before making the public announcements;

(c) failed to conduct an adequate factual investigation;

(d) failed to conduct a reasonable or diligent investigation of the alleged contamination;

(e) failed to follow its own or any proper scientific protocols;

(f) failed to properly identify the supplier, distributor and owner of the baby carrots;

(g) failed to provide information to the plaintiffs in a timely way, or at all, so as to allow the plaintiffs the opportunity to respond to the allegations made in the public announcements or in its statements to the American Food and Drug Administration;

(h) failed to accurately report the test results it conducted of the baby carrots before making the public announcements or communicating with the American Food and Drug Administration regarding the baby carrots; and

(i) failed to provide relevant samples to the plaintiffs so that they could conduct appropriate tests on the allegedly contaminated baby carrots.

The chambers judge, whose decision was upheld on appeal, applied a proximity analysis through the relevant statutory schemes and the conduct of the government, and concluded that the CFIA creates duties to the public at large, and not suppliers of food products. Commercial interests are not the interests that are prioritized in law during public health emergencies, and public health statements are not representations directed towards commercial entities. 

Applying many of the same cases as the Adam case above, the chambers judge concluded that was plain and obvious that on the facts pleaded the defendants did not owe the plaintiffs a duty of care. Proximity could not be found from the statutory scheme, the conduct of the regulator exercising its responsibilities, or policy reasons,

[124] …If a duty of care to protect the economic interests of a supplier of food existed, then it is difficult to see on what principled basis a duty would not be owed to a multitude of other persons whom it would be reasonably foreseeable would suffer economic loss by negligent inspection. Claims could be advanced by retailers, wholesalers, suppliers, food processors, distributors, farmers and employees of each of the above. This appears to be exactly the kind of problem that has led to a prima facie duty of care being negatived in other circumstances.

Given the forgoing, it may not be surprising that accident policies have also denied coverage in naturally transmitted diseases. In Co-operators Life Insurance Co. v. Gibbens, the Supreme Court of Canada reviewed the case of a man who had unprotected sex with three women. He acquired genital herpes from these activities, which resulted in a rare complication of paralysis due to transverse myelitis. Although the trial judge and the Court of Appeal upheld that the paraplegia qualified as a bodily injury occasioned through accidental means, the Supreme Court of Canada overturned this decision.

The Court held that accident insurance is not comprehensive health insurance, and the parties did not expect the policy to cover all loss or bodily injury. The causal chain from the unprotected sex to the paraplegia was an unexpected consequence that while rare, is a normal consequence of the disease.

The insured attempted to rely on the Court’s decision in Martin v. American International Assurance Life Co., where a doctor addicted to morphine and Demerol, accidentally killed himself by a self-administered drug overdose. The Court distinguished between an accident and an unexpected health outcome in this context,

[45] just because an outcome is unexpected does not establish the existence of an accident within the scope of the policy. In Martin, the Court was able to infer accidental means from the circumstances of the death that pointed to a miscalculation. The Court rejected the insurer’s argument that deaths that are the natural and predictable consequences of deliberate actions could never be considered accidental, but the Court, nevertheless, found it necessary to identify a miscalculation as a necessary step in finding the claim to be valid (para. 17). There is no necessary equivalence between “unexpected” and “accident”.  If a man, sitting at a bus station, is hit by a bus that has careened out of control, that is unquestionably an accident — but it is not an accident by virtue of the fact that the man did not expect it.
[emphasis added]

The insured also attempted to rely on Kolbuc v. ACE INA Insurance, where the Ontario Court of Appeal reviewed a plasterer who became a paraplegic after he was bitten by a mosquito carrying the West Nile virus. The insured was successful in convincing the British Columbia Court of Appeal to adopt this reasoning, leaving it to the insurance industry to draft clauses in future policies clarifying that contracting a disease was not “an accident.” The Court did not find this as convincing,

[63] To conclude that Mr. Gibbens’ acquisition of herpes was “an accident” despite the absence of any mishap or trauma other than the acquisition of a sexually transmitted disease in the ordinary way would simply serve to add sexually transmitted diseases to the list of Critical Diseases in the group policy contrary to the intent of the policy.

[64] …Various forms of bacteria and viruses constantly make their way into our bodies, sometimes with little effect, and we in turn spread them to others. Bacterial infections include, for example, tuberculosis, anthrax and typhoid. The bubonic plague was transmitted by fleas. Malaria is transmitted by mosquitoes. In ordinary speech, we would not say that the bubonic plague was the result of a pandemic of accidents, or that the inhabitants of warm climates are particularly “accident prone” to contracting malaria. It cannot be correct that passengers sitting in an airliner who catch the SARS virus through the externality of the plane’s air circulation system, or riders on a bus who catch “swine flu” from an infected fellow passenger, or people who contract any number of infectious diseases because of a failure to wash hands in disinfectant, or to smack a circling mosquito, have valid claims under an accident policy.

[65] In my view, with respect, such a conclusion would stretch the boundaries of an accident policy beyond the snapping point and convert it into a comprehensive insurance policy for infectious diseases contrary to the expressed intent of the parties and their reasonable expectations.

The Court noted that although this sexual conduct was foolish and risky, it did not prevent him from being considered as accidental within the meaning of the policy. One of the reasons people buy insurance is to provide protection against the consequences of risky behaviour.

It might be time to check the social distancing clauses of your private health insurance before your next romantic encounter.

Non-Competition and Tendering

Pandemics often require significant communications with the public, including in both official languages. In one legal dispute, 723186 Alberta Ltd (Re), a translation vendor objected to the Canadian International Trade Tribunal under Subsection 30.11(1) of the Canadian International Trade Tribunal Act (CITTA), over bilingualism and security requirements made by a procurement of the Public Health Agency of Canada. The requirements were claimed to be an unfair barrier to competition.

The regulations to CITTA allows the Tribunal to determine whether a procurement is in accordance with various international agreements, including  Chapter Ten of the North American Free Trade Agreement, Chapter Five of the Agreement on Internal Trade [AIT], the Agreement on Government Procurement, Chapter Kbis of the Canada-Chile Free Trade Agreement, Chapter Fourteen of the Canada-Peru Free Trade Agreement, and Chapter Fourteen of the Canada-Colombia Free Trade Agreement.

Article 504(3)(b) of AIT provides that technical specifications that favour certain suppliers would be inconsistent with the non-discrimination provisions in Articles 401 and 504. Although the Tribunal noted that certain bidders have competitive advantages regarding a particular tendering process, that does not necessarily make the process discriminatory. The Tribunal cited CAE Inc. v. Canada (Public Works and Government Services), where a complaint about a procurement resulted in an order that the original bidders be allowed to resubmit their proposals, where the Tribunal stated,

43.the Tribunal does not believe that there is necessarily anything inherently discriminatory in the tendering procedures where bidders are on an unequal footing going into the bidding process… “There is no question that certain bidders have certain competitive advantages in certain bids. This is simply part of the ordinary ebb and flow of business.” The Tribunal notes that these competitive advantages could be created as a result of incumbency, IP [intellectual property], ITAR [international security considerations via the International Traffic in Arms Regulations, Title 22, Parts 120-130 of the Code of Federal Regulations (United States)] or any number of other business factors. The Tribunal is… of the opinion that, if a bidder is at a disadvantage, it does not necessarily follow that the tendering procedures used… are discriminatory.

The challenge to PHAC’s assessment of its own security requirements was insufficient to impugn the procurement, as the work involved sensitive policy documents prepared for the Cabinet and Treasury Board.

The AIT was replaced by the Canadian Free Trade Agreement in 2017, and contains similar principles of non-discrimination in Articles 102, 201, and 316.

A dispute around the ordering of supplies arose in Fitzgerald v. Southmedic Incorporated, where the plaintiff sought to enforce an extraordinarily large commission for medical eye shields placed during the 2009 H1N1 pandemic.

There was tough bargaining between the parties, and the plaintiff claimed some commercial pressure due to inequality of bargaining power. Although the court failed to provide him this commission, he was entitled to a smaller bonus under a different document.

Canada’s current struggles with COVID-19 will invariably give rise to more litigation, and further reading for those interested in the legal intersections with pandemics.

 

Comments

  1. Melanie Bueckert

    I am interested in the public schooling aspect of our government’s COVID plans. Has any provincial/territorial government ever closed all public schools before? In Manitoba, this ability seems to flow from s. 43(3)(e) of our Public Health Act (http://web2.gov.mb.ca/laws/statutes/ccsm/p210e.php#43(3)), which was only passed in 2006 and came into force in 2009. The previous version does not appear to contain a similar provision (http://web2.gov.mb.ca/laws/statutes/repealed/p210(2009-04-01)e.php). I looked for some authority on this point in our Public Schools Act (http://web2.gov.mb.ca/laws/statutes/ccsm/p250e.php), but I didn’t see anything along those lines. Is anyone aware of any scholarship/research on this point?

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