Wednesday, May 13, 2020

That Vexxing Duty of Care

Employers welcoming the return of their workers as the pandemic lockdown is lifted have a problem - the duty of care. It's the employer's responsibility under common law to ensure the safety of the workplace against known and foreseeable hazards.
An employer owes his employees a duty of care in common law. By common law we mean that the ‘duty’ is not written down in an act of Parliament but one that has come about due to custom i.e. a practice that has become law over a period of time. 
The common law duty of care can be defined as ‘a duty to take care of you whilst you are at work’. He must take reasonable care of your safety, avoid exposing you to unnecessary risks and ensure a safe system of working. 
The common law also imposes a duty on your employer not to behave in a manner calculated or likely to destroy, or seriously damage the relationship of trust and confidence between you.
Governments around the world call for physical or social distancing. Unfortunately most places of work were designed with overhead, not pandemics, in mind.

In Ontario and Quebec, lawyers are applying for permission to bring class action lawsuits against two companies that own and operate chains of nursing homes.
The revised claim is against Revera Retirement Living and Sienna Senior Living, which both own and manage long-term care facilities across the country. Combined, the two companies own more than 130 nursing homes in Ontario alone.

An earlier statement of claim named Revera only, but now there are six plaintiffs including two whose father lived at Madonna, where 30 residents and one staff member have now died of COVID-19. 
This class action, which must be examined and certified by a judge in order to move forward, alleges negligence and breach of contract.
We had all better hope our provincial governments are ready to step in if/when the private sector operators fail.


Anonymous said...

The duty of care is not "a practice that has become law over a period of time." It can be traced quite precisely to 1932 and a case before the House of Lords known as Donoghue v Stevenson, aka the snail in the ginger beer case. In other words, this is judge-made law. It's also perfectly normal in our common law system, contrary to the notion put out by conservatives that the judge's role is limited to "calling balls and strikes" according to the laws passed by Parliament. It's a small point, but one worth reminding people of - Parliament is not the only source of law. Sorry for the OT rant.


Toby said...

There are enough examples of nursing homes that did not experience Covid-19 infections. A shining example is the one in France where the manager took the warnings to heart and locked the doors; she and her staff isolated the whole facility for six weeks. Dramatic but it saved her charges.

It's a virus and we can't expect 100% safety but the places that have been ravaged have owners that did essentially nothing. I hope those lawsuits succeed.

The Disaffected Lib said...

Thank you, Lord Denning. I met the Master of the Rolls once in Ottawa. We had a drink. Or at least I had a drink. Maybe more than one. Splendid evening.

The Disaffected Lib said...

Yes, Toby, I did a post about that French nursing home a week, perhaps two, ago.

Trailblazer said...

Those that took precautions were prepared to take a financial loss.

Those that did not were profit oriented.

This is the end game.


The Disaffected Lib said...

Cap, BTW is Equity still alive in Canada. I got hooked on equity when it was taught by a visiting professor from Trinity in Ireland. Liam McCaughey. Young guy but he breathed life into the subject and made it a delight to study. A Harry Potter/Hogwarts sort of thing. It was a powerful tool in bankruptcy cases.

Once he migrated to the University of Victoria law school I had the opportunity of meeting with Donovan Waters. I was able to afford to retain Donovan on a file.