Can you be held liable if you throw a holiday party and someone catches COVID?

Julie Berridge is planning to spend Christmas with her cats, so she won’t be in any danger of facing fines for violating provincial law — which in a locked-down Toronto can be as high as $ 100,000.

Until a couple of years ago, the Toronto lawyer and her mother hosted their extended family for Christmas dinner in their Toronto condominium, bringing about a dozen relatives together to celebrate the holiday.

When Berridge’s mother passed away in 2018, she turned the hosting duties over to her children.

This year, however, Berridge will not be visiting her son in St. Catharines, or any other family, for that matter.

“I do want to get together with everyone,” Berridge said, “but given the risks, I am taking things seriously. I’m not a youngster and I’m trying to be careful of my health.”

Provincial officials and those of regions in lockdown until at least Dec. 21 are urging everyone to adopt Berridge’s approach to holiday celebrations.

As of Friday morning, only Toronto and Peel were in lockdown. However, the province announced Friday that York Region and Windsor-Essex will enter lockdown on Monday, Dec. 14.

An official provincial map, which can be found online, allows residents to determine the status and rules for their individual regions. The map is colour-coded to reflect the restrictions in that area.

The Reopening Ontario Act mandates that any area under lockdown (grey) rules can have no indoor organized public events or social gatherings, except with members of the same household, and outdoor gatherings are limited to 10 people.

In the areas surrounding Toronto, either red (control) or orange (restrict) rules are in force. Residents of red zones are asked to socialize only with members of their households. Indoor private gatherings are limited to five people; outdoor gatherings to 25. In orange zones, indoor private gatherings are limited to 10 people, and outdoor gatherings to 25.

There are fines for breaking the rules and they will be enforced if necessary, says Carleton Grant, executive director of municipal licensing and standards for the City of Toronto.

“We will be triaging calls we receive through 311, and the police will take the lead on large gatherings,” Grant said.

“But, we’re relying on the people of Toronto to be smart and to stay home. Those aren’t just my words; they’re the words of Dr. Eileen de Villa (Toronto’s medical officer of health) and Mayor John Tory.”

Grant asks that complainants be sure of their facts; a myriad of cars parked on the street may signal nothing more than families who have their university-age children home for the holidays.

For anyone defying the law, the fines can be steep. Individual organizers of events that violate gathering rules are a minimum of $ 10,000 and a maximum of $ 100,000, including up to one year in jail.

Fines for those attending gatherings with other households or those that exceed the capacity restrictions can range from $ 750 to $ 100,000, including up to one year in jail.

There is also some debate about a host’s liability if a gathering takes place and someone contracts COVID-19.

Rajiv Haté, a personal injury and disability lawyer with Kotak Law in Mississauga, says there are added risks for celebrating the holidays with others this year.

“If you have a party at home and a guest contracts COVID-19, will your homeowner’s policy cover you?” Haté asked. “Many policies have exclusions and some exclude unlawful acts or communicable diseases.

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“It’s a risk if a guest sues you after contracting COVID-19. Will your insurance company defend you? And what if someone sues your personally in a civil lawsuit? I don’t know if you’d be personally responsible, because these things haven’t been tested in court. It could be a big lawsuit if someone’s whole life changes when they contract the disease.”

Steve Kee, the executive director of external communications for the Insurance Bureau of Canada, offered this statement on behalf of the organization:

“The federal government and the province continue to provide health and safety guidance, including targeted restrictions on gatherings. All individuals within those affected areas should abide by that guidance. We cannot comment on hypothetical situations.

“Most homeowners’ policies do not cover the liability for the transmission of a communicable disease by an insured person. In addition, to the extent that an insured person engages in an unlawful activity, any potential insurance coverage may be compromised.”

Daniel Priel, a professor at Osgoode Hall Law School at York University who teaches torts, says the issue of a host’s liability would fall under the rubric of Ontario’s Occupiers’ Liability Act, which states that an occupier of a premises must take reasonable care to ensure that anyone entering the premises is safe.

However, they are not generally held liable if the visitors willingly assume risk, unless the host deliberately attempts to injure them, according to the Act.

“If a guest were to be infected at a house party, the host will argue that this was a risk ‘willingly assumed,’ ” Priel said by email. “In other contexts, courts are quite restrictive about this defence, but when we are eight months into the pandemic, I think it will be difficult for the guest to say they did not know about this risk.”

In the event that a guest at a house party infects someone else with COVID-19, Priel says that although there are no cases on COVID-19, it’s very unlikely the party’s host would be held liable, based on a similar case involving alcohol that was decided by the Supreme Court in 2006, Childs vs. Desormeaux.

“If I host a party and someone gets drunk at my party and then drives home and on the way home injures someone while driving drunk, I — the host — am not liable to that third person,” said Priel, who noted that the ruling applied only to social hosts, not commercial hosts. “Based on Childs, the chances of a host being liable to a third-party infected by a guest are, I think, very small.”

Potential liabilities won’t be of any concern to Berridge.

Her daughter plans to drop off a holiday dinner and presents for her to enjoy alone, and the entire family will connect by Zoom on Christmas Day.

“We’ll all be together on Zoom,” she said, “and meanwhile, my animals will keep me busy.”

Elaine Smith

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