Ontario courts expected to be busy with COVID lawsuits long after pandemic

Even when the pandemic is finally behind us, Ontario's courts will likely be dealing with COVID-19 lawsuits for years to come.

There are already some suits filed claiming wrongful deaths in long-term care homes, a lack of disability coverage for so-called COVID "long haulers" with lingering symptoms and a class action suit claiming the government's masking laws are violating constitutional rights.

A class action suit filed by Ottawa lawyer Michael Swinwood is going even further.

"It's a challenge to what is being put before humanity," he says. 

"We're saying straight up that there is no justification for the declaration of a pandemic ... I'd go so far as to say that what medical science says is that this is no worse than a seasonal flu."

The suit is filed against the Canadian and Ontario governments, individual political leaders, as well as the Bill and Melinda Gates Foundation, the World Health Organization and the Pope.

It claims that all the defendants allowed for the bringing in of COVID restrictions and shutdowns "without lawful authority and due process on behalf of the mind, body and health of the Canadian Public."

The class of Ontario claimants includes the owner of a convenience store in Henvey Inlet First Nation south of Sudbury, a small business owner in Peterborough, a man living with disabilities in Balderson and a single mother in downtown Toronto.

Each is seeking $1 million, as are the likely millions of "John and Jane Does" named in the suit representing everyone else affected by the pandemic.

Swinwood says he expects the governments will claim the suit is "frivolous and vexatious" but "that doesn't matter, the facts are all there."

The Ontario government is trying to limit COVID lawsuits, with a law passed in November forbidding claims against employers and others who make an "honest effort" to follow guidelines and prevent spread of the virus.

Elizabeth Keenan— an employment lawyer with Matthews, Dinsdale and Clark in Toronto— says what exactly that means is "the big question" that will have to be tested in court.

"One would imagine that there's a purpose in using that language," she says.

But Keenan says workers can still file COVID-related Workplace Safety Insurance Board claims against their employers and those who lost work during the shutdown are already starting to file for what's called a "constructive dismissal" in hopes of getting severance pay. 

"We anticipate a flurry of those actions," she says. 

"I think we're going to feel the repercussions of this for a long while."

Toronto personal injury lawyer and York University law professor Joseph Campisi says he expects a range of different suits to come after the pandemic.

"The next major hurdle will be actually getting in front of a judge," he says

"The backlog is significant before you even get into a court to have your case heard."

While some cases have been heard in courtrooms and online during the past 11 months, many have been delayed.

The province is not allowing any jury trials until mid-May at the earliest and civil lawsuits are likely to get priority after criminal and family law matters.