COVID-19 & Personal Injury Law: Procedural & Substantive Adaptations

Both the law and the Canadian judicial system have been forced to adapt to the ever-evolving circumstances surrounding COVID-19. These adaptations pose several legal implications for personal injury claims in Ontario and can be broken down into two categories: procedural and substantive.

Procedural Adaptations

Key Dates

Effective March 17, 2020, the Ontario Superior Court of Justice suspended its usual operations in order to prevent the spread of COVID-19.[1] As of July 6, 2020, Ontario has gradually begun reopening courtrooms with strict social distancing guidelines and other health and safety protocols in place.[2] Jury trials and jury selection will not resume until September 2020 at the earliest.[3] By November 1, 2020, Ontario hopes to have opened all courtrooms.[4]

Implications

In lieu of in-person proceedings, both the Superior and Ontario Courts of Justice have shifted online by conducting over 21,000 remote proceedings over teleconferencing platforms such as Zoom, Skype, and others.[5] The courts have also allowed online filing for civil claims, including personal injury matters.[6] This shift poses challenges for personal injury claimants who are unable to reach out-of-court settlements in the negotiation phase as trials have been postponed to dates far later than previously anticipated. This prevents claimants from obtaining judgment in a timely manner, which may lead to other hardships regarding affordability for services tied to their injuries.

The good news is…

Most civil matters are settled outside of court, and the means through which these settlements can be negotiated are feasible through online videoconferencing technology. The courts have safeguarded against stalling tactics by communicating guidelines to legal professionals recommending usual compliance with procedural timelines and other obligations related to civil matters.[7] This means that COVID-19 will not prevent most personal injury claimants from collecting compensation in the same or similar amount of time as they would have prior to COVID-19.

Substantive Adaptations

Duty to mitigate injuries

Generally speaking, claimants are required to do whatever they can to mitigate their losses upon suffering an injury. This might include physiotherapy, psychotherapy, or other activities designed to help an injured person heal from their respective ailments. If this duty is not fulfilled, claimants risk losing compensatory damages they would have otherwise been entitled to. COVID-19 forced several of these mitigation options to cease operations, leaving claimants without the ability to mitigate to the extent they normally would. Will courts view this as an unfulfilled duty to mitigate?

Pecuniary damages for lost income

On the same token as the duty to mitigate, claimants whose injuries prevent them from participating in their usual employment may be entitled to damages for lost income. But what about those who were injured and unable to work, yet had their place of employment shut down due to COVID-19? Are these claimants still able to recover for lost income despite the fact that they might not have been able to work even if the injury was never sustained?

Potential Solutions

Although they represent different aspects of a personal injury claim, these points of concern stem from the same place: COVID-19 has rendered it nearly impossible for claimants to provide the evidence necessary for obtaining compensatory relief in a civil setting. There are three potential ways in which a court might deal with these issues:

  • The “reasonableness” standard: In law, decisions are often measured against those which a “reasonable person” would make if put in the same situation as the actor in question. From a duty to mitigate standpoint, it seems clear that a reasonable person would first attempt to make appointments with healthcare providers. Once informed that certain healthcare providers are not considered “essential services” and are closed as a result, it seems equally clear that a reasonable person would attempt to find a healthcare provider who can offer some sort of online advice or therapy. By taking these steps, a claimant is acting “reasonably” to mitigate the damages associated with their injury, and should not be barred from recovery on that basis.
  • Act of God: Typically used as a defence to tort actions, an Act of God can excuse one from liability when the source of their liability stems from unforeseeable, unpreventable situations. Courts may borrow this doctrine from the defence category and apply it to claimants’ duty to mitigate. For example, if COVID-19 (an “Act of God”) prevents one from accessing the resources necessary to mitigate their injuries, claimants should not be said to have failed to fulfil their duty to mitigate.  
  •  “But for” test: When claiming damages for personal injuries, claimants are required to establish their injuries would not have occurred “but for” the actions of the defendant. Similar to the Act of God defence, courts might borrow the “but for” test in applying claimants’ loss of income to COVID-19. A court might interpret this in one of two ways: (1) For example, “but for” the actions of a drunk driver who rendered a claimant paralyzed in a motor vehicle accident, the claimant would still be able to perform his job as a welder. However, that claimant would be unemployed during the COVID-19 economic shutdown if the accident never happened. For this reason, a court might deduct pecuniary damages for lost income during the time period in which the paralyzed claimant’s former workplace was shut down. (2) On the other hand, a court might instead focus on the welder’s inability to work as a result of the accident. In this case, the injured claimant would be unable to work regardless of COVID-19, and so they should not be barred from recovering lost income which could not have been earned even if COVID-19 never happened.

Unprecedented times call for unprecedented decisions. Courts recognize the uniqueness of the COVID-19 situation, and will undoubtedly continue to rely upon the principles of fairness and justice in guiding their decision-making processes.


[1] Ontario Courts, “Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media”, Superior Court of Justice (13 May 2020) at Section A <https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/>.

[2] Ibid at section B.1.

[3] Ibid.

[4] Ministry of the Attorney General, “Ontario Courts Gradually Resuming In-Person Proceedings”, Ontario (30 June 2020) <https://news.ontario.ca/mag/en/2020/06/ontario-courts-gradually-resuming-in-person-proceedings.html>.

[5] Ibid.

[6] Ibid.

[7] Supra note 1 at Section C.1.