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Can a school be sued if a student becomes infected with COVID-19?

Thursday, October 01, 2020 @ 11:37 AM | By Samantha Shatz


Samantha Shatz %>
Samantha Shatz
With the beginning of a new school year, many parents are wondering whether it is safe for their children to attend school. We have already seen an influx of cases, with some schools having to shut down after being open for only a few weeks.

The new school year has also raised a number of legal questions with respect to the liability of schools and school boards. What happens if a student contracts COVID-19 while at school? Could the school, school officials and the school board be held liable?

At this time, it is too early to provide a definitive answer to these questions. The federal and provincial governments have not provided school boards with immunity from legal action. However, this is something that may change down the road, depending on the amount of children that contract and spread the disease while attending school.

Practically speaking, it is difficult to envision a lawsuit like this succeeding. In my view, it would be an uphill battle from the start. In order for a parent to successfully sue a school, they would have to prove that the school and its employees were negligent.

Schools, teachers and staff within a school have a recognized duty of care to students. This means that they are required to protect students from foreseeable risks and harm. The test is one of reasonableness, meaning school officials must act prudently and take all reasonable steps to ensure safety for students.

In order to establish that a school and school officials were negligent, parents would need to prove that the school failed to implement the various policies, protocols and guidelines mandated by our government to protect students from COVID-19. Furthermore, not only would parents be required to prove that the school was negligent in ensuring a safe environment for students, they would also have to establish that the student actually contracted COVID-19 while at school. This would be exceptionally difficult, given the community spread of the disease.

Waivers

Waivers have been circulated at some schools to shield the school and all school officials from liability in the event of an outbreak. In other words, these waivers are intended to foreclose the ability of parents to issue a lawsuit against the school.

However, even if parents agree to sign a waiver, it is not clear that these waivers will hold up in court.

Issues to consider with waivers are whether parents were given enough time to review the waiver. Did they understand what they were signing? Were they given the opportunity to seek legal advice prior to signing? The answers to these questions all go to the enforceability of the waiver.

Parent pods

Some parents have decided to create “parent pods” within their communities. A parent pod can be described as two or more families joining together to establish small learning groups. Parent pods are being used as an alternative to sending children to school. Given that these pods are operating in a household, this raises legal liability questions of those individuals responsible for the pods.

Homeowners can typically rely on their home insurance to protect all members of a household against lawsuits for any injury caused to others on their property. However, it is uncertain whether home insurance will protect against lawsuits for children contracting COVID-19 while attending school within a parent pod.

It is very possible that parent pods could be construed as business ventures, meaning that coverage from a standard homeowner’s policy would not apply.

This new reality has certainly raised questions that the legal community never pondered prior to the global pandemic. We have already seen our courts set precedents in relation to the pandemic and it’s possible that we could see new laws created in relation to the school system. At this time, it is too early to tell what the new school year will bring, in terms of both the spread of COVID-19 as well as the legal liability of schools.

Samantha Shatz, of Howie, Sacks and Henry LLP, combines her experience working in both plaintiff personal injury as well as insurance defence into her current practice. She has appeared as trial counsel representing individual and insurance clients in the Superior Court of Justice. Shatz’s current practice focuses on medical malpractice.

Photo credit / FamVeld ISTOCKPHOTO.COM

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