Page - 229 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

229Liability of the Crown in Times of Pandemic characterized as a policy decision resulting from assessing and allo- cating resources.22 Lastly, whether a provincial Crown can be sued for the actions taken by long-term care homes will depend on statutory provisions on Crown liability and the degree of control exercised by the Crown over them, as discussed further below. Added to the public law immunity flowing from policy deci- sions is the fact that common law courts rarely find that there was a duty of care between the authority and the plaintiff.23 This is also likely to be true in the context of the current pandemic,24 where mul- tifaceted factors—relating to health care, the allocation of resources, and other social and economic aspects—are taken into account. As the existence of a duty of care is necessary to find that anyone is liable, the absence of such a duty of care means that tortious liability cannot be established and that a plaintiff’s claim must fail. Defining the Contours of the Crown and Its Liability in the Context of COVID-19 What are the implications of the current state of the law on Crown immunity in the context of the COVID-19 pandemic? The difficulty in suing the federal government as the Crown directly for the decisions it took in relation to stockpiling medical supplies, funding research into novel coronaviruses, testing, or other areas of policy is likely to be two-fold. First, as per the Hinse decision, the Crown cannot be sued directly; it cannot, therefore, be sued for institutional inertia. Individual or specific wrongdoing will have to be identified. Second, core policy decisions attract immunity. Decisions that were taken by considering the allocation of finite resources and evaluating the risk that there would be a new virus—in short, these are conflicting policy considerations—may also fall in the “core policy” category following the Court’s ruling in Imperial. The Court cautioned in Imperial that it did not purport to provide a litmus test, and that “[d]ifficult cases may be expected to arise from time to time where it 22. Even where the government had a duty to inspect long-term care homes, failing to meet a statutory duty does not entail liability when the duty is owed to the population at large: Cooper v Hobart, 2001 SCC 79; Edwards  v  Law  Society  of  Upper  Canada, 2001 SCC 80; Fullowka  v  Pinkerton’s  of  Canada  Ltd., 2010 SCC 5; Alberta v Elder  Advocates  of  Alberta  Society, 2011 SCC 24. 23. Feldthusen, “Public Authority Immunity”, supra note 20 at 213. 24. Lara Khoury, “Crises sanitaires et responsabilité étatique envers la collectivité” (2016) 46:2 RDUS 261.