In the event of an outbreak, legal experts caution that schools and those operating private at-home ‘pandemic pods’ may be held accountable. This comes as parents and students grapple with the risk of COVID-19. Because neither the federal nor provincial governments have given school boards immunity from legal action, if a student contracts COVID-19 on school property, experts say it will be a complicated issue.
Jasmine Daya, a Toronto-based personal injury lawyer, said that the school or school board might be held liable if a child contracts the virus at school and spreads it to vulnerable family members who then experience loss of income or complications from the disease. She also noted that if it could be proven that the school acted negligently, a claim would likely only be successful.
On Tuesday morning, Daya, managing partner at Jasmine Daya and Co., said it would require an examination of whether the schools and the school boards were following the policies and the guidelines that have been set out by the government and health officials. Some parents have chosen to keep their kids in schools so-called “pandemic pods” as back-to-school plans vary across the country.
Daya warned the idea that private classrooms would be run by a parent, tutor, or school teacher as a small number of elementary-aged children could present more liability risk to the person running the operation. Daya also noted that the insurer could deny any claims arising from any incidents that occur if the home is considered to be operating as a school.
She added that the problem was that the home insurer had exclusionary clauses.
Some schools and private education institutions are considering asking parents to sign a waiver for insuring the school from liability. However, experts are arguing that there is no guarantee it would stop a parent from pursuing a claim. Daya also noted that people have to sign away the right to sue if there is negligence like when they send their children to extra-curricular activities. But she noted that there is an opportunity for a precedent to be set.
She added that that was a novel area, and the courts have yet to see the issue and decide on it. John Schuman, a Toronto lawyer, said he had provided “a couple of clients” with contracts that essentially had parents accept full responsibility if their child got COVID-19 in a school setting. He noted that even if they follow the rules, private schools could be targeted. Schuman, a senior partner at Devry Smith Frank LLP, said schools are worried about how they will handle the outbreak.