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Nainesh Kotak, founder of Kotak Personal Injury Law

Parents could face fines, liability if they send kids to school with COVID-19, lawyer warns

Tuesday, September 14, 2021 @ 9:42 AM | By Amanda Jerome

Last Updated: Tuesday, September 14, 2021 @ 1:51 PM

The start of the academic year has brought on a rise in COVID-19 cases, with schools across Ontario reporting active cases amongst students and staff. One school in the province, Viscount Alexander Public School in Cornwall, has been ordered to close until at least Sept. 20 to curb the spread of the virus in the school and community.

Nainesh Kotak, founder of Kotak Personal Injury Law in Mississauga, warns that parents could be on the hook if they send their children to school or daycare with COVID-19.

 Nainesh Kotak, founder of Kotak Personal Injury Law

Nainesh Kotak, Kotak Personal Injury Law

He noted in a press release that a parent in Vaughan has been charged after “allegedly sending their child with COVID-19 symptoms to daycare.” The local health unit, York Region Public Health, claimed that the parent “violated the region’s Sec. 22 order by sending their child to daycare despite the fact that they would not have passed the daily COVID-19 screening tool.”

The release explained that the parent was charged $770, as well as a victim surcharge fee, and that 15 children at the daycare had tested positive for COVID-19.

“These recent provincial offence charges should be a warning to parents with children enrolled in in-class learning. If you knowingly send your child with COVID-19 like symptoms and they indeed do have COVID and spread it to others at school, be prepared to potentially be fined by the local public health authority,” said Kotak in a statement.

“There could also be potential civil liability if it were proven that a parent was grossly negligent and did not make a good faith effort to comply with the law and public health guidelines,” he added.

The province has provided direction to parents on when they should keep children home from school or daycare if they suspect a COVID-19 infection.

Kotak noted that Ontario’s Bill 218 provides protection for businesses and individuals from “certain COVID-19 related liabilities unless it can be proven that there was a lack of good faith or recklessness.”

Keeping in mind safety and liability, Kotak highlighted five points parents should be aware of this school year:

  • “These are extraordinary times and personal information is now public knowledge in settings such as a school or daycare;
  • Take every precaution with your child’s health;
  • Students must self-screen for symptoms of COVID-19 before leaving home;
  • Comply with your local public health authority;
  • Know the health and safety measures that are in place at your local school board.”

In an interview with The Lawyer’s Daily, Kotak said there are two aspects to liability, the first being provincial offence liability under the Health Protection and Promotion Act and the second being potential civil liability.

He noted that the Health Protection and Promotion Act “permits a medical officer to make a written order that requires a person to refrain from taking action that is specified or to take action that is specified in the order in respect of a communicable disease.”

“This gives regional medical health officers the authority to put forth rules with respect to COVID screening and quarantine for whether you’re vaccinated or unvaccinated,” he said, adding that there are different rules for both groups and “each region has something very similar.”

“The Health Protection and Promotion Act does create offences if there’s a violation of the Act and also, importantly, section 23 of the statute says that where an order by a medical officer of health in respect of a communicable disease is directed to a person under 16 years of age and is served upon a parent or the person who has responsibilities of a parent in relation to them, the parent, or that other person, will ensure the order is complied with,” he explained, noting that there is potential liability and “quasi-criminal, which is provincial offences, on parents if those under the age of 16 don’t comply with COVID screening processes.”

He noted that more often than not it’s businesses that are being fined, and not individuals, but nonetheless the rules “have teeth.”

Kotak explained that for individuals who don’t comply with restrictions “there’s a minimum fine of $750.” He also noted that there’s another penalty if an individual “obstructs an authority or an individual enforcing or complying with the order, you can get a minimum fine of $1,000 for that.”

“These rules have teeth, obviously. They wouldn’t produce a criminal record and you can obviously dispute them and ask for a trial. It’s akin to any other provincial offence,” he noted, “but there are teeth here and we do see establishments being fined. There is that scope for individuals to receive a fine as well.”

Kotak said that the civil liability issue is “tempered by Bill 218.”

“That statute was enacted last year,” he said, noting that one would think the bill was designed to protect long-term care homes from class actions, “but it has the effect of protecting anyone, individuals, corporations from COVID-related liability in a civil context unless it can be shown that they didn’t act with a good faith attempt to comply with public health guidelines, or if they acted recklessly then there could be liability.”

“That really is a very strong protection to individuals for civil liability. However, one could see the potential of showing recklessness if it’s quite obvious that the child, for example, has obvious COVID symptoms, maybe even a diagnosis, or a family member has a diagnosis, there’s respiratory issues, they can’t smell. If it could be established that there was recklessness and they weren’t acting in good faith to comply with guidelines you could see potential civil liability,” he stressed.

Kotak believes that civil liability may be hard to establish given Bill 218 and noted that “the burden of proof is greater than a normal negligence type of lawsuit due to the legislation itself.”

“I do think the situation is evolving and it’s good to be on top of it. We do see, for example, the removal of runny nose and sore throat as a screening question because we know that children do get runny noses and sore throats from general colds and from allergies and the problem was that you’d have so many people lined up for COVID testing that it became unmanageable. So, we have to watch the guidelines as they change in terms of what symptoms are red flags where the child must stay home and get tested,” he added.

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