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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; EdwardsÂ
vÂ
LawÂ
SocietyÂ
ofÂ
UpperÂ
Canada, 2001 SCC 80; Fullowka v Pinkerton’s of Canada Ltd., 2010 SCC 5; Alberta v
Elder AdvocatesÂ
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.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International