The need for mandatory workplace vaccination against the CoViD-19 virus may bring in more personal injury lawsuits. This is a problem for the entire judicial system in Canada, which is already experiencing a backlog of cases.
As of July 2021, there were already 27,619 CoViD-19-related claims allowed in Ontario alone. This number shows a significant increase from the 14,580 allowed cases in 2020. These figures do not even include other personal injuries cases like slip-and-fall injury and work-related injury claims, which came to an estimated 201,000 registered cases in 2020.
Do these increasing numbers mean that mass tort claims will become the future for personal injury cases in Ontario and the rest of the country? Are mass tort claims the solution, or will they further decrease the chances of successful trials?
Are CoViD-19 Cases Considered Workplace Injuries?
In 2020, 5.3% of CoViD-19 outbreaks among those aged 20 to 69 were attributed to workplaces. It was highest in December at 2,800, which was in line with the easing of work restrictions. As such, some claims arose from 14,580 allowed cases. But, there are conditions before a CoViD-19 positive employee becomes entitled to claims.
First, the workplace increased transmission risks. The WSIB in Ontario considers the following factors:
- There was a high probability of transmission in the workplace.
- The contact source must be identified.
- The operations have higher risks of exposure to infected persons or substances.
Second, has the infected employee’s condition been confirmed? WSIB set the following considerations:
- The duration from the date and time of exposure to the onset of symptoms
- An appropriate medical assessment has been done.
Workplace injury claims in Ontario due to CoViD-19 further increased this year. Toronto lawyers led by the Diamond & Diamond launched the largest CoViD-19 lawsuit. It also provided helpful guidelines for filing workplace injuries. As of July, CoViD-19 claims in Ontario rose by 89%, reaching 27,689.
Mass Tort Claims in the Future
Now that Canada is easing its restrictions, workplaces may return to usual operations. Yet, the fears of many workers have not subsided. Sixty-five percent of Canadian workers do not feel safe working with unvaccinated colleagues.
These measures are still met with opposition from anti-vaxxers in Canada. It further intensifies debates on CoViD-19 claims due to misinformation. As of October 2021, there were 44 fatality reports that are possibly linked to vaccines and are under investigation. This is out of 55 million doses administered.
Meanwhile, businesses are torn between safety measures and anti-vaccination campaigns. If they do not vaccinate their employees, they can get sued.
To prevent employers from being sued by the vaccine hesitant, the government launched the Vaccine Injury Support Program (VISP). Quebec has its provincial version. But now, individuals can feel confident taking the vaccine as in the extremely unlikely event of injuries, there is a straightforward compensation program.
As of September, 62% of small and medium businesses will implement mandatory vaccination. The provisions under the Ontario Human Rights Code (OHRC) and the Canadian Charter of Rights and Freedoms only protect those who cannot be vaccinated due to medical reasons. People refusing vaccines due to their own preferences or beliefs are not covered. If an employee has a genuine religious belief (nearly all religions recommend vaccinations), the employer is only required to accommodate if doing so will not endanger other employees or the public.
Given the current situation, mass tort claims are expected to rise further. Workplace injury lawsuits may be filled with mass filings of injuries related to CoViD-19. Constructive dismissal, workplace infection, and claims of vaccine-related injuries will be the new trend of workplace lawsuits.
With thousands of similar cases in the last year, employees may file lawsuits against their employers. Their interests and the severity of damages may differ. Indeed, Covid-19 reduced workplace accidents due to lockdowns. But it has opened doors for the insurance industry. Business interruption insurance has become more common in settling pandemic-related compensations.