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Proper protocols for driver safety during pandemic may come too late for some

Toronto Mayor John Tory announced on April 17 that the city planned to work with the taxi industry to develop proper procedures for transporting possible COVID-19 patients.

For taxi drivers, this delay in implementing procedures may have come at great cost. Those who have been transporting these possible patients between their homes and the hospital for over a month now may well have been exposed to COVID-19 already, and may in turn have exposed their families. From mid-March, hospitals were broadcasting concern about their capacity to deal with a flood of COVID-19 patients, but their overall message to the public was that no individual case of feverish symptoms was all that likely to be COVID-19. Certainly, there were no specific protocols put in place to prevent people who believed they might have the virus from going to the hospital by taxi, Uber, Lyft, etc., or for notifying the driver if the person were to ultimately test positive.

This situation may be comparable to that of a tavern owner who fails to take affirmative action to prevent a patron of the tavern from driving while intoxicated. In Jordan House Ltd. v. Menow and Honsberger [1974] SCR 239, the Supreme Court of Canada held that it would be reasonable to require the owner of a tavern to see that an intoxicated patron of the tavern got home safely. The Ontario Superior Court later extended this duty of care to third parties whom one could reasonably expect may be harmed by the intoxicated patron (Hague v. Billings, 68 OR (2d) 321).

Since mid-March 2020 at the latest, hospitals and transport companies have been well aware of the danger associated with close physical proximity to someone who has or may have COVID-19. There has been no doubt since that time that a driver who transports someone who ultimately tests positive for the virus could catch it from the person while in transit. And yet Mayor Tory was pressed to make his announcement on April 17, presumably because neither hospitals nor the taxi or transport companies had put adequate protocols in place for the drivers’ protection.

Of course, there may be difficulties associated with tracking precisely where and from whom someone contracted COVID-19, but drivers are known to be at high risk and every driver who picks up a passenger at a hospital knows precisely where and when she did so. It’s time for litigation lawyers to get on board with professional drivers and to hold those who put them in harm’s way to account.

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