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VULNERABLE - The Law, Policy and Ethics of COVID-19
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VULNERABLE230 is not easy to decide whether the degree of ‘policy’ involved suffices for protection from negligence liability.”25 However, the Court added that “most government decisions that represent a course or principle of action based on a balancing of economic, social and political consid- erations will be readily identifiable.”26 Unless governments’ decisions in Canada were taken in bad faith or can be proven to be irrational,27 it appears unlikely that they will attract liability. Courts conduct a control test to determine if a Crown corpora- tion is part of the Crown and therefore can benefit or not from the various immunities the Crown can claim.28 The status of each indi- vidual Crown corporation, Crown agent, or other public entities will depend on its enabling statute and the relevant legislative framework and regulatory scheme. In the case of lawsuits against long-term care homes themselves, the issue of whether they can rely on public law immunities—because they are part of the “Crown”—will depend on that test. Whether claimants will be able to sue provincial or local gov- ernments for actions that were taken or not taken at long-term care homes, for example, will also depend on that care home’s status and the degree of control exercised by the government over it. In Ontario, the  Crown  Liability  and  Proceedings  Act maintains the Crown’s immunity for torts committed by Crown agencies, Crown corporations, municipalities, hospitals, universities, colleges, boards of education, community health facilities, long-term care homes, along with independent contractors providing services to the Crown for any purpose.29 Crown agencies and other Crown corporations, as well as all other entities funded by the Ontario government listed above, must therefore be sued individually. Under the Ontario CLPA, the Government of Ontario cannot be sued for the tort they committed, or for their regulatory or policy decisions taken in good faith—or their failure to make such a decision. Under the Ontario CLPA, a policy 25. Imperial, supra note 17 at para 90. 26. Ibid. 27. Ibid. 28. Hogg, Monahan & Wright, supra note 7 at 465. 29. Ontario CLPA, supra note 4, ss 1, 9(1)(a)–(b). Crown corporations are defined broadly as “a corporation having 50 per cent or more of its issued and outstand- ing shares vested in the Crown or having the appointment of a majority of its board of directors made or approved by the Lieutenant Governor in Council or by one or more members of the Executive Council” and “a wholly-owned sub- sidiary” of such a corporation.
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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
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VULNERABLE