The news is abuzz with parallels between the start of the COVID-19 pandemic and the recent Hantavirus outbreak linked to the cruise ship MV Hondius, departing from Argentina. Questions around outbreaks and liability in Ontario are becoming increasingly relevant in situations like these.

Hantavirus is a rare disease with a substantial mortality rate.  Hantavirus is typically spread by contact with rodents or their droppings.  It can also be spread person-to-person, but the transmission rate is low: (What is hantavirus?  Everything you need to know).

In a terrarium-like environment (such as a cruise ship) disease can spread fast.  You may wonder: what duties do cruise ship owners owe to their passengers to prevent the spread of disease?

That answer depends on which laws apply.  Maritime law is complicated.  Cruise ships travel the world.  They may originate in one country, have citizens of countries across the world, stop in different countries, etc.  Cruise line tickets may also have forum or law selection clauses (deciding which jurisdiction’s laws apply or where disputes will be heard).

This blog is limited to outbreaks and liability in Ontario.

Outbreaks and Liability in Ontario for the Spread of Infectious Disease

If you become ill due to a disease outbreak, it is possible that another person, business or institution may be legally liable for your illness.  In other words, you may have a tort claim.

I’m not suggesting you sue the preschool every time your child brings home a cold or a stomach bug.  There are, however, examples in Ontario case law of more serious instances of the spread of disease where the Court entertained or found liability against another person.

Institutionally, this can happen in hospitals, long-term care facilities and other treatment settings.  Several class actions have been certified in Ontario against long-term care homes for their actions/inactions during the COVID-19 pandemic.

In the travel vein, there is also the case of Lavier v Mytravel Canada Holidays Inc., where the plaintiff was seeking to certify a class action against a tour operator that provided a vacation package to a destination where there was a norovirus outbreak.

There are also situations where food providers can be liable for diseases from food poisoning and where hotels/landlords could be liable for diseases spread from rodents or other pests that they have failed to control.

The Negligence Test in Disease Transmission Cases

Establishing negligence for the spread of disease as it is for any other negligence case:

1. You suffered harm;
2. The person or business you’re suing owed you a duty of care;
3. They fell below the standard of care required of them; and
4. Their fall below the standard of care caused your harm.

Proving causation (i.e., that someone made you sick) and a fall below the standard of care will require a diligent and early investigation.  Evidence will be quickly lost otherwise.

Unlike many personal injury claims, proving that a duty of care existed may also be difficult. In the medical negligence and long-term care context, physicians, nurses, and staff owe duties to take reasonable steps to precent the spread of disease. Some of these items include:

• Washing hands
• Isolating contagious patients
• Following infection control protocols

However, establishing a duty of care becomes far more complicated when the relationship between the parties is less defined.

For example – does the stranger on a street owe you a legal duty not to get you sick?  In most instances probably not.  There are, however, cases where someone may be liable for battery. For instance, if the stranger spat on another person and caused a disease. Or, if someone has sexual relations with another person without disclosing a sexually transmitted infection (STI).

Battery is an intentional tort and typically easier to prove than negligence.  It is normally restricted to the context however where someone touches another non-consensually.  Even for apparently consensual sexual acts, consent may be vitiated due to a failure to disclose an STI before engaging in the sex act.

When Does a Disease Related Lawsuit Make Sense?

Another important consideration is the severity of the illness and resulting damages.

A 24-hour stomach bug from bad sushi probably wouldn’t warrant an economically viable claim against the at-fault restaurant.  Similarly, nor would a short-term case of influenza warrant a lawsuit against a sick healthcare worker that failed to wash their hands.

However, when the illness is debilitating on a long-term basis, or even fatal (like hantavirus can be), that is when a lawsuit may make economic sense.

Hantavirus and Negligence Claims in Ontario

Here’s hoping that the ill passengers on the MV Hondius make a quick recovery and this Hantavirus outbreak does not spread any further.

If you have been seriously disabled or lost a loved one due to a disease contracted because of the negligence of another person or institution, call us today for a free consultation.