Coronavirus (COVID-19): Lessons Learned From SARS — A Guide For Hospitals And Employers

In this Update

Lessons learned from the 2003 SARS outbreak and subsequent litigation are key in understanding hospital and government obligations in the context of COVID-19. Governments have an overarching public duty of care owed to the public at large, not a private duty of care to frontline hospital staff or patients. Hospitals have legal obligations during pandemics, including owing a private duty of care to their staff, personnel and patients. In light of conflicting duties, hospitals must keep in mind the fiduciary duty to act in the best interest of patients and employees, and in particular, the elevated duty of precautionary care, referred to as the “precautionary principle” in planning and taking all reasonable precautions to protect staff. Background

The designation of a novel coronavirus by the World Health Organization as a global public health emergency has captured headlines in 2020. As of March 3, 2020, there have been 33 confirmed cases of COVID-19 in Canada with 20 in Ontario, 12 in British Columbia and one in Québec.1 The international spread of the virus (63 countries in addition to Canada as of the time of writing) has unsurprisingly stirred memories of the 2003 severe acute respiratory syndrome (SARS) outbreak in Toronto and raised concerns regarding preparedness by hospitals, employers and all levels of government. This Osler Update provides a brief overview of (1) the SARS Litigation (defined below), (2) hospitals' obligations to have appropriate procedures in place to protect patients and staff and (3) the elevated duty of care which hospitals owe to protect their staff.

SARS Litigation

Summary

Following the 2003 SARS outbreak in Ontario, affected nurses, patients and their families commenced five actions2 against stakeholders such as the Government of Canada, the Government of Ontario and the City of Toronto, in addition to hospitals, physicians and other stakeholders (collectively, the SARS Litigation).3

Claims against government

While the SARS Litigation actions varied in their pleadings and choice of respondent, generally the claims against Ontario and Toronto included “issuing confusing contradictory or otherwise inappropriate directives,” and the claims against Canada included “approving or acquiescing in the decision of Ontario and Toronto to reduce infection control systems.”4

The only class action by nurses and their families, Abarquez v. Ontario (Abarquez)5 included claims against the government of Ontario, the Ministry of Health and Long-Term Care (the MOHLTC, now known as the Ministry of Health), the Provincial Operations Centre (the POC) and the Ministry of Labour (the MOL). The claims included the following:

that the MOHLTC and the POC failed to provide nurses with timely information about SARS; that the directives Ontario issued to hospitals were inadequate, exposing the plaintiffs to the risk of contracting SARS; that the MOHLTC or POC was an employer/supervisor under the Occupational Health and Safety Act and failed to ensure the nurses' health and safety in the hospitals; that the MOL failed to enforce the directives and occupational health and safety standards; and that Ontario breached the nurses' rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms by exercising discretion in bad faith and for improper motives.6 No government private duty care

Each level of government brought preliminary motions to have actions against them in the SARS Litigation dismissed because it wasplain and obvious that there was...