While local owners of businesses such as gyms and restaurants are smiling at the prospect of finally being allowed to reopen later this week following the COVID-19 lockdown, many are also looking at ways of protecting themselves from lawsuits as the novel coronavirus continues to circulate in the community.
With nearly all businesses in most parts of Ontario now allowed to reopen as of Friday under phase three of the province’s plan to restart the economy, Tracy Lyle, a partner at Nelligan Law, says it’s up to each individual business owner to weigh the benefits of protecting themselves against potential legal action.
In places such as gyms and fitness centres – where people are more likely to be gathered in close quarters and engaged in physical activities that require heavier breathing – it’s probably prudent to take such steps, she explained.
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“The riskier the environment, the greater the need for a waiver,” said Lyle, the firm’s head of litigation. “For some business owners, it would provide an added layer of protection (against lawsuits).”
Ashley Lawrie, the CEO of Ottawa-based Free Form Fitness, said all members at the chain’s six gyms in the city were already required to sign waivers as a condition of joining the club even before the pandemic hit. The company has now updated its forms to include specific clauses that protect it against claims related to COVID-19, she said.
“It’s just a new age of doing business, I guess,” said Lawrie. “But I think it’s important for businesses to have that, because it’s such an unknown situation. We just want to make sure that we’re doing our due diligence and making sure that we’re taking every safety precaution possible.”
While waivers have long been a standard feature of the fitness and sports industries, Lyle said it might not be practical for other businesses to force every customer to read and sign a detailed legal form before they enter the premises.
“(There are) businesses who are very eager to reopen, and they don’t want to scare away potential customers with waivers,” she said, citing restaurants and bars as examples of establishments where owners could argue such procedures are an undue burden that would be difficult to enforce.
“I can see why, from a business point of view, it may not be too palatable to a restaurant owner.”
Local bar and restaurant owners told OBJ Tuesday they have no plans to force patrons to sign any legal documents before entering their establishments.
“People understand the risks, I think, when they dine out, when they go to a grocery store, when they go to a theatre, when they go to a hairdresser,” said Stephen Beckta, who owns three Ottawa restaurants – Beckta Dining and Wine, Play Food & Wine and Gezellig.
Dave Longbottom, the owner of Flora Hall brew pub in Centretown, said he checked with his insurance provider before setting his no-waiver policy.
Longbottom, like Beckta, said he plans to ask for contact information from each party to help health authorities with contact tracing if necessary.
“There’s not really a specific need for a waiver in my case,” he explained.
Protection not airtight
Lyle said most commercial general liability insurance policies would probably cover COVID-19 claims. Still, she stressed that it’s important for business owners to double-check to make sure, adding that even waivers that specifically mention COVID-19 don’t automatically provide airtight protection against legal action.
“It’s not going to excuse, I don’t think, a business owner who doesn’t meet the public health guidelines,” Lyle said.
While St. Francis Xavier University in Antigonish, N.S., made waves this week for requiring students to sign a COVID-19 liability waiver in order to attend classes – a practice some law experts say is becoming increasingly common – Lyle says the jury is still out on just how widespread such waivers will be in the business world.
Legal obstacles facing potential plaintiffs in COVID-19 cases mean there’s not likely to be a groundswell of action against business owners, she said.
“How do you prove that you got it when you were there rather than somewhere else?” Lyle said. “That’s going to be a burden for plaintiffs to prove. We’re not expecting to see a huge number of these claims in Canada.”
