A court application to stop unsafe school reopening, legislation prohibiting claims for COVID-19, and firing justified for not wearing safety equipmenet


This week on Legally Speaking with Michael Mulligan:

Two fathers have filed a petition in the British Columbia Supreme Court to prevent schools from reopening without adequate COVID-19 safety protocols.

In order to permit schools to reopen, the latest provincial Public Health Act order that sets out safety requirements for virtually any public gathering simply exempts schools.

The protocols that schools are excluded from include measures such as wearing masks, allowing sufficient space for social distancing, and not having gatherings of more than 50 people.

Having been exempted from the Public Health Act order, schools have “guidance” from the British Columbia Centre for Disease Control which states “There is limited evidence of confirmed transmission within school settings.”

This is despite the reported COVID-19 outbreaks in schools, shortly after reopening, in Germany, Israel, the United Kingdom, and the United States.

The children of both fathers, as well as their families, have pre-existing conditions. They point out that children, including theirs, have siblings so that school cohorts can be multiples of what’s intended because of contact at home.

The application for an injunction is scheduled to be heard the week of September 14th.

Also discussed is the COVID-19 Related Measures Act.

This act included provisions that prohibit civil claims arising from COVID-19 infection.

The regulations passed pursuant to the act prohibit any claims for damages that result from COVID-19 infections resulting from, amongst other things, educational endeavours.

As a result, if a student, or family member, is infected or dies no compensation would be available.

Finally, a wrongful dismissal claim is discussed.

A long-term employee of a manufacturing company refused to wear a safety hat on the basis that she claimed it caused headaches. Despite repeated requests, the employee did not provide medical information to substantiate this claim and she was eventually fired.

The judge concluded that failing to wear protective equipment provided cause to dismiss the employee.

This result is important in the context of employers requiring employees to wear masks.


An automated transcript of the episode:

Legally Speaking Aug 27 2020

Adam Stirling [00:00:00] It is time for Legally Speaking here on CFAX 1070, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael Mulligan.

Michael T. Mulligan [00:00:09] Good morning. Great to be here.

Adam Stirling [00:00:11] Lots on the agenda today.

Michael T. Mulligan [00:00:12] No doubt about that. So the first thing on the agenda, I think, is a really interesting Petition that was filed in the B.C. Supreme Court just yesterday by a father, two fathers, of who, who have young children who would be scheduled to return to school. And the petition that they’ve brought in seeking to prevent the schools from reopening as the government is currently announced. And they are seeking a number of potential remedies on the basis that the current plans to reopen schools don’t adequately ensure the protection of children, their families, or the community more broadly. The Petition and the Notice of Application, which seeks the injunction to stop the reopening of schools as currently proposed, is scheduled to be heard on the week of September the 14th. And it will be very interesting to watch how this plays out. I’ve had an opportunity to review the Notice of Application,.

Adam Stirling [00:01:31] Yes.

Michael T. Mulligan [00:01:31] And Petition that was filed and both are obviously very carefully considered and detailed applications. These are not something which somebody has sort of filled out on the back of an envelope. The legal basis, there are several, for the Application that the fathers are making on behalf of their children and their families, is premised on one level on the Provincial Public Health Act and the Public Health Act in Section 15 says this: “a person must not willingly cause a health hazard or act in a manner that the person knows or ought to know will cause a health hazard”. And the Petition points out in detail, various elements of the provincial governments current plan to permit children to go back to school. And the Petition points out various elements of that, which the fathers say are missing. And without them, the fathers allege the province would be causing a health hazard.

Adam Stirling [00:02:46] Interesting

Michael T. Mulligan [00:02:46] To those various elements include things like, not requiring adequate physical distancing at schools, not having class sizes and density targets at a size which would permit physical distancing, not requiring masks or face shields, not providing virtual learning opportunities for people. The two fathers, interestingly, both of the children have health conditions which would make them at greater risk if they were to contract COVID-19 and the family members of both of the children also have health conditions. And it’s interesting because, of course, the risk created is one level to the children, but it’s also to the families of the children. And one of the interesting points that’s made in the Petition and the Notice of Application is that the children have siblings, which is not unusual.

Adam Stirling [00:03:49] Mhmm.

Michael T. Mulligan [00:03:51] And so the fathers point out that when you take a proposed size of a class or a cohort, really, you need to multiply that by the number of siblings, because that’s really now going to be the size of the pool of people who are interacting.

Adam Stirling [00:04:06] Yes.

Michael T. Mulligan [00:04:07] And so that’s pointed out there. The Application, in addition to being brought on the basis of the Public Health Act and this alleged causing of a health hazard by the current plan, also seeks a remedy on the basis that the proposal is contrary to Section 7 of the Canadian Charter on the basis that it interferes with the students and families right to be secure,.

Adam Stirling [00:04:40] Yes.

Michael T. Mulligan [00:04:40] In terms of life and security of the person.

Adam Stirling [00:04:42] Yes.

Michael T. Mulligan [00:04:43] So it’s constitutional litigation as well as relying on the Health Act. The number of remedies they’re seeking in the alternative include either stopping the schools from opening altogether.

Adam Stirling [00:04:56] Yeah.

Michael T. Mulligan [00:04:56] So if they are able to obtain interim injunction in that regard, schools would cease operation at that point, if they are successful in their application, in the alternative, they are seeking an injunction which would prevent the schools from opening unless those various things are implemented.

Adam Stirling [00:05:16] Yeah.

Michael T. Mulligan [00:05:17] Physical distancing, spacing, masks and various other elements. And in reviewing the Application of the Petition, it also caused me to go and have a look at what the government has done in terms of the public health orders that would permit the schools to reopen.

Adam Stirling [00:05:35] Yes.

Michael T. Mulligan [00:05:36] And what’s occurred in that respect is that we have a number of things which are orders that are made under the Public Health Act. And when there is an order made under the Public Health Act, it’s sort of what it sounds like, it’s a requirement, not a kind suggestion. It’s you must do these various things. And we have in place in the province, currently an order in which applies to an order that applies to gatherings and events. And that order sets out the justification for the order, talking about things like how COVID-19 or SARS COVID-2 can spread through droplets in the air left.

Adam Stirling [00:06:19] Yes.

Michael T. Mulligan [00:06:19] On surfaces. It speaks about things like the gathering together of people indoors or outdoors for the purpose of attending an event can promote the transmission of SARS COVID 2, and increase the number of people who develop COVID-19. And then this is what they’ve done. The order defines what an event is, and the event described in the order is incredibly broad. Is it everything one could possibly imagine, parties, celebrations of life, musicals, theatrical or dance or entertainment performances, disc jockey performances, comic acts, strip dancing, art shows, magic shows, puppet shows, fashion shows, book signings, readings, receptions, displays, movies, films, meeting conferences, lectures, talks, educational presentations. And they got this (except in a school and post-secondary institution).

Adam Stirling [00:07:10] Wait, wait. It’s excluded.

Michael T. Mulligan [00:07:13] It’s excluded.

Adam Stirling [00:07:14] huh.

Michael T. Mulligan [00:07:15] So what they’ve done is they’ve set out the danger, the disease, the danger, how it spreads and then they’ve defined an event is everything you can imagine. It goes on quizzes, games, rallies, festivals, everything but they exempt, exempt except in a school or post-secondary institution.

Adam Stirling [00:07:35] Wow.

Michael T. Mulligan [00:07:35] And so then the order goes on to require various things in accordance with the risks that the order describes. And it requires things like there must be two meters from one another for people that are at an event unless they’re in the same party. There, if there are tables, there must be no more than six patrons at them. The chairs, they must be six feet, they must be two meters between the chairs at different tables. There must be sufficient space to permit patrons to maintain a distance of two meters from one another. In any place you may not have more than 50 people. There are all of these requirements which are not met by the current plan for schools to reopen. And so, the only way the schools are able to legally reopen in the fashion currently proposed is by exempting them, which is what they’ve done.

Adam Stirling [00:08:28] Huh.

Michael T. Mulligan [00:08:28] And so instead of the order which would otherwise deem the current school plan to be contrary to this Public Health Order, instead, what they have been issued is this guidance for schools to be reopened. And so, they’re all sort of helpful suggestions, none of which are binding on schools because of that exemption I’ve just mentioned.

Adam Stirling [00:08:51] And because they’re binding, no court can rule on whether they’re being adhered to because they need not be adhered to.

Michael T. Mulligan [00:08:57] Correct. Otherwise, the Petition would be saying, hey, you’re breaching the public health law.

Adam Stirling [00:09:02] Yeah.

Michael T. Mulligan [00:09:02] Right. And so that’s why it doesn’t say that. And interestingly, in the one with what they have in its place, that sort of suggestion, the guidelines is premised on this: It says that there is limited evidence of confirmed transmission within school settings. And the interesting element of that, of course, is that we’re now seeing internationally the result of schools reopening in various places.

Adam Stirling [00:09:27] Yes.

Michael T. Mulligan [00:09:27] In Germany, Israel, the United States, the United Kingdom and all of those places, what is in fact being observed, are outbreaks that are occurring shortly after schools have opened like Berlin, just opened up their schools, and after two weeks, 41 of them had outbreaks.

Adam Stirling [00:09:45] Yeah.

Michael T. Mulligan [00:09:45] And so the whole premise of this thing is this proposition that there’s limited evidence of confirmed transmission in a school setting. That may be true in B.C. because, of course, last school year they had remote learning and all of this. But that doesn’t seem to accord with international experience, at least.

Adam Stirling [00:10:05] Interesting.

Michael T. Mulligan [00:10:05] and so, I think, we’re going to need to watch very, very carefully what happens with this Petition and this Application that’s going to be heard on the week of September 14th. And that, I think, is going to cast some significant doubt on whether schools are, in fact, going to be able to proceed in the way that the provincial government is currently suggesting that they should. And so, I think parents need to be aware of that and should look at that and consider it carefully because, well, of course, they don’t know what the outcome of that application is going to be.

Adam Stirling [00:10:43] Indeed

Michael T. Mulligan [00:10:43] And there’s clearly sort of a very well, at least considered, and articulated Application here. As I said, this does not appear to be some quickie off the corner of somebody’s desk. Right. You’ve got this Application that runs on some, counted up your 25 pages detailing all of the background and the nature of these orders and all of these various arguments, constitutional and otherwise. And so, some judge is going to need to sort that out, and that’s when it’s scheduled to be heard. So, I think parents need to be aware of that and carefully follow it, because I think it does cause some real doubt about whether what’s currently proposed is likely to be permitted.

Adam Stirling [00:11:30] Absolutely. Let’s take a quick break. We’ll continue with legally speaking in just a moment. Michael Mulligan after this.

[00:11:35] COMMERCIAL.

Adam Stirling [00:11:35] This is Legally Speaking on Ceefax 10 70. We continue our conversation with Michael Mulligan from Mulligan Defence Lawyers. What’s next on the agenda, Michael? I’m reading here the COVID- 19 Related Measures Act rather innocuously named a piece of legislation, but what does it do?

Michael T. Mulligan [00:11:50] Sure. That sounds like the sort of thing one might want to have in times of COVID-19. You might want to have some related measure.

Adam Stirling [00:11:56] Indeed. Only appropriate related measures, though, surely.

Michael T. Mulligan [00:11:59] Indeed. So, this piece of legislation was passed recently. It came into force on regulation here of July 10th. So, it’s new. And the section I wanted to draw to people’s attention, and it relates to the last topic concerning the opening of schools and the exempting schools from the Public Health Act order that would keep other gatherings of that sort, safe. Is that, this act, that is to say, the COVID-19 Related Measures Act in Section 5, acts to stop you from being able to sue successfully if you wind up getting infected as a result of a number of things which are described as prescribed damages or prescribed acts or omissions.

[00:12:53] Hmm.

[00:12:53] And so you need to go a little bit further to figure out what exactly are they talking about here when they say that there can be no legal proceeding for prescribed damages or any prescribed act or omission. And so, what you need to go to is you need to go to what are called this are the regulations under that act to see whatever they prescribed. And they’ve prescribed these things.

[00:13:16] Yes.

[00:13:17] You will be unable to sue for damages resulting directly or indirectly from an individual being or likely being infected with or exposed to SARS COVID 2, those who are prescribed damages. So, if your child goes to school, gets infected with COVID 19, comes home, and passes away or a family member passes away, as a result of that, you would be unable to sue because those damages would be prescribed damages. They’ve also prescribed various acts and those acts would include it’s defined in this way. An activity that has the purpose of benefiting the community or any aspect of the community, and then sub 2, is there the advancement of education or religion. And so what that means is that if a family member or a child contracts COVID-19, going to school and causes some loss, like, let’s say the child comes home and affects the child’s mother, who is the person who worked and supported the family and the mother passes away, it would mean that you would have no cause of action on the basis that the government or the school were negligent because of the activity is a prescribed activity and the damages are a prescribed type of damages. And so it would mean that if a person or family suffered that kind of an economic loss as a result of the negligence of the teacher or principal or school board or the provincial government or whoever else might make a decision that would put somebody in jeopardy. You would have no cause of action and would be unable to receive compensation for that. The act, I should say, does provide an exemption for what’s called gross negligence.

Adam Stirling [00:15:18] Yeah, what does that mean? That’s a term of art, isn’t it? It has a special meaning.

Michael T. Mulligan [00:15:21] Yeah, it would mean this would mean it would be things like sort of a marked or flagrant departure from what through the standard of care of a reasonably prudent person would be.

Adam Stirling [00:15:30] Okay.

Michael T. Mulligan [00:15:30] I mean, when you talk about negligence from a legal perspective, what you’re talking about really is carelessness. Right.

Adam Stirling [00:15:38] Okay.

Michael T. Mulligan [00:15:38] And the way that that’s ordinarily articulated would be sort of the standard of care that a reasonably prudent person would take. Right.

Adam Stirling [00:15:46] Okay.

Michael T. Mulligan [00:15:47] And gross negligence would be that would be sort of a marked or flagrant departure. Right.

Adam Stirling [00:15:51] Okay.

Michael T. Mulligan [00:15:51] I suppose so. Let’s say you said that prison has COVID-19, right. And you say, yes, I appreciate that you’re telling me to go into the closet with that person with COVID-19. Yes, I’m telling you to do that. Okay.

Adam Stirling [00:16:03] Easily, so a marked departure from standard of care that a reasonably prudent person would observe. Okay

Michael T. Mulligan [00:16:08] Correct. But basically, they passed legislation which would insulate individuals, including those that have indicated people that are engaged in activity for the advancement of education or religion. It also, interestingly, exempts any activity, including a business that’s carried on for direct or indirect gain or profit.

Adam Stirling [00:16:27] Hmm.

Michael T. Mulligan [00:16:27] And so that would mean, for example, let’s say a restaurant or some business was careless, and it caused you to become infected. Like they didn’t, I don’t know, ask their staff members to wear masks.

Adam Stirling [00:16:40] Yeah.

Michael T. Mulligan [00:16:40] You know, carefully, you know, allowed somebody come to work with a fever and a cough and I. Oh, just go for it right. We’re short one line cook or something.

Adam Stirling [00:16:47] Yeah.

Michael T. Mulligan [00:16:47] You know, maybe that gets to the level of gross negligence. But I wouldn’t want to hang my hat on it.

Adam Stirling [00:16:51] No.

Michael T. Mulligan [00:16:52] The idea is that those things would be exempted from liability and so you wouldn’t be able to get any compensation if you suffered a loss, or loss of life as a result of somebody being negligent and causing you to get COVID.

Adam Stirling [00:17:06] Well, at least the civil justice system won’t be overwhelmed with a hailstorm of lawsuits when this starts. It sounds like an eye was turned to the prospect of litigation when these regulations and statutes were drafted.

Michael T. Mulligan [00:17:18] Yeah. I mean, I guess here’s the other, here’s the concern about that. Right. Because, of course, having those sort of civil remedies available to people are part of what encourage people to act in a reasonable, safe, and prudent fashion.

Adam Stirling [00:17:31] Yes.

Michael T. Mulligan [00:17:31] Right. Unless, unless and until, I suppose we get no fault insurance, for example. One of the reasons why you might want to drive carefully in your cars, if you don’t, you could get sued.

Adam Stirling [00:17:41] Yes.

Michael T. Mulligan [00:17:41] Right. Or anything else you do in your life. You want to engage in a, you know, cautious pursuit of whatever you’re doing so that you don’t expose yourself to civil liability.

Adam Stirling [00:17:51] Yes.

Michael T. Mulligan [00:17:51] And when you say to somebody that’s no longer the case, the worry is that it might promote unsafe behaviour. And, you know, we’ve seen reported examples of people who were engaged in behaviour that appears to be quite unsafe.

Adam Stirling [00:18:08] Yes.

Michael T. Mulligan [00:18:08] You know, party people being ticketed for doing those things. One of the things that might be a constraint on people’s behaviour would be the possibility that you’d be financially responsible if you engage in careless behaviour and you cause somebody to become sick or die. And if we remove that, you remove one of the things I would encourage people to behave in a cautious way.

Adam Stirling [00:18:31] Michael Mulligan for Mulligan Defence Lawyers, we have four minutes and four seconds remaining. And I note an unsuccessful claim for wrongful dismissal after being fired for failing to wear a bump cap at work. Still on the agenda.

Michael T. Mulligan [00:18:44] Yeah, I think we can cover that in that time. And I think it is some relation to other things we just talked about. The particular case was a person who worked doing manufacturing work for a number of years and her employer implemented a policy that employees wear a bump cap. It was like a soft cap and so they don’t hurt themself if they hit their head on machinery, presumably.

Adam Stirling [00:19:03] Okay.

Michael T. Mulligan [00:19:03] And the particular employee initially wore the thing, but then refused to keep wearing it, claiming that it gave her migraines.

Adam Stirling [00:19:10] Interesting.

Michael T. Mulligan [00:19:10] But then after multiple requests and letters and so, one, she just wouldn’t go and get any medical opinion to substantiate that claim. And she did wouldn’t put the hat on.

Adam Stirling [00:19:21] Hmm.

Michael T. Mulligan [00:19:21] And eventually, after a period of time, her employer fired her right for not wearing the safety equipment.

Adam Stirling [00:19:26] Yes.

Michael T. Mulligan [00:19:26] She sued unsuccessfully. And the judge found that, no employer can require an employee to wear safety equipment. They were making legitimate enquiries if she had a medical condition that needed to be accommodated. She simply wouldn’t substantiate that. And so, she could be fired and was due no compensation and no notice for that. And the lesson there, I think, for people to take away is essentially you need to wear safety equipment your employer is asking you to wear.

Adam Stirling [00:19:53] Yes.

Michael T. Mulligan [00:19:53] And again, indeed, you’ve covered the natural piece of equipment that might be controversial, would be please put a mask on. Right. And if you’re somebody who says, I won’t do that and you won’t provide some, you know, good evidence as to why, you know, you’re unable to do that, you may find yourself in the same position that this person did. So, wear a safety equipment, lest you wind up being dismissed from your job.

Adam Stirling [00:20:18] Well, we can imagine the alternate scenario where the employer turns a blind eye and allows this person to engage in their work without wearing a bump cap. Something goes wrong. They hit their head. They’re injured. Who’s liable for that? Insurance isn’t going to cover that. At least I would not expect them to do so without a fight. So, the employer really had no choice.

Michael T. Mulligan [00:20:35] Yeah. I guess in the case of the mask, the employer can take some solace in the COVID-19 Related Measures Act. (laughter) No problem. I’m only negligent in my failure to act put a mask on. I’m good to go.

Adam Stirling [00:20:48] Quick, somebody describe what a marked departure means again. This is important. Oh, dear. Michael Mulligan, we always appreciate the benefit or your knowledge and insight helping us understand these issues. Thank you as always. How about 90 seconds left on the clock today? Anybody else want to leave with us?

Michael T. Mulligan [00:21:02] No. I think the broad takeaway from all of these things is that we all need to do our best to stay safe, ensure that we’re not putting other people in jeopardy. And I think we’re going to be in for some, I think, very interesting legal times over the next few weeks as the courts are required to struggle with things like whether the schools can be reopened in the way that’s proposed. I also think it’s likely we’re going to see litigation in that regard, possibly from teachers who feel that they are in some jeopardy. And we may even see things like human rights complaints coming of it.

Adam Stirling [00:21:37] Interesting.

Michael T. Mulligan [00:21:38] I think we’re going to explore some very interesting legal times as well as medical health times over the next few weeks as we see how the back to work or back to school plan actually unfolds.

Adam Stirling [00:21:50] While indeed the courts exist at times as the steady hand to ensure that legislators follow their own rules, among others. So, I’m glad that we have that that backstop there.

Michael T. Mulligan [00:21:59] No, and I can say this, that the Supreme Court is functioning in person again.

Adam Stirling [00:22:05] Good.

Michael T. Mulligan [00:22:05] I just spent three days in the Supreme Court up in Duncan. And there are quite a few safety measures in place, plexi glass and people wearing masks and checking for symptoms coming into the courthouse.

Adam Stirling [00:22:17] Good.

Michael T. Mulligan [00:22:17] It’s good to see that the courts are taking those precautions and maybe not at full capacity, but we’re doing our very best to move cases along. And so that’s good to see.

Adam Stirling [00:22:27] Very well, Michael Mulligan. Thank you so much as always. We’ll talk again soon.

Michael T. Mulligan [00:22:31] Thank you so much for having me. Have a great day.

Adam Stirling [00:22:32] Have a great week, bye now.

Automatically Transcribed on August 27, 2020 – MULLIGAN DEFENCE LAWYERS