This week on Legally Speaking with Michael Mulligan:
The approval of COVID-19 vaccines for children ages 5 – 11 has resulted in family law disputes between separated parents who disagree about getting their children vaccinated.
A number of these cases have now been litigated, across Canada, and the consistent outcome has been for court orders permitting the children to be vaccinated, despite the objection of one parent.
On the show, one of these cases is discussed which involved two children, aged 10 and 12. The mother of the children wished to have the children vaccinated, while the father objected based on information he had gathered from the internet.
The father had been providing age-inappropriate information he had collected from the internet to the children to persuade them that the COVID-10 vaccine was not safe.
Because judicial decisions require a reasoned analysis, and explanation for how a decision has been reached, these cases afford an objective assessment of evidence concerning the safety and efficiency of COVID-19 vaccines for children.
Legal disputes of this kind are determined based on an assessment of what’s in the best interest of the children.
This judge in the case discussed ordered that the mother was free to get the children vaccinated, despite the objections of the father. The father was ordered to stop providing the children with the material he was collecting on the internet claiming that the vaccine was unsafe.
Also on the show, provisions of the BC Emergency Program Act and the COVID-19 Related Measures Act, that limit liability for spreading COVID-19 are discussed.
Ordinarily, people and organizations owe a duty of care to avoid acts or omissions that could cause harm to others. The standard of care that a person or organization owes would be assessed based on what a reasonable person would do. If a person or organization fails to act reasonably, they can be liable for damages that result based on their negligence.
The BC acts discussed limit liability for acts or omissions related to COVID-19. They exempt the government, and others, from liability for action or inaction related to COVID-19 except in cases of “gross negligence”.
Gross negligence is a legal term that has been interpreted by the courts to mean conduct that is a very marked departure from the standard of a reasonable and competent person. The standard of care implied by gross negligence can be modified where the standard of care is very high.
In BC the provincial government has made vaccination for government employees mandatory. Those who chose not to be vaccinated for COVID-19 have been placed on unpaid leave and will eventually be terminated if they do not get vaccinated. Despite clear legal authority to require the same of teachers, they were exempted from this requirement, and it was left to the school boards to mandate vaccination.
Various school boards have decided not to require teachers and staff who are interacting with young children to get vaccinated.
Because COVID-19 vaccines for children ages 5-11 were only made available at the beginning of December, and because an eight-week delay between first and second doses was decided on, almost no children under age 11 in BC have been fully vaccinated.
As a result, teachers or school staff who decide to keep working without being vaccinated, as well as school boards and the provincial government, may be liable for the transmission of COVID-19 to school children and their families if their conduct is found to constitute gross negligence.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
Legally Speaking - Dec. 23 2021
Adam Stirling [00:00:00] My regular conversation with Michael Mulligan from Mulligan Defence Lawyers, Legally Speaking on CFAX1070, Michael, how are you doing?
Michael T. Mulligan [00:00:07] I'm doing great, COVID free and good to be here.
Adam Stirling [00:00:10] Absolutely. All trying to steer clear of this Omicron variant, I tell you it's skyrocketing just about everywhere. Now you and I have discussed in the past that family law can be amongst the most challenging areas of law for practitioners in the legal profession because the stakes, when it comes to a child or custody of a child, or the health and well-being of a child cannot be higher in many cases in the minds of the parent. Now that children ages five to eleven can be vaccinated with respect to COVID 19, I would suspect that this is creating some friction.
Michael T. Mulligan [00:00:44] You would be correct. We've seen since, particularly since the vaccine was approved for younger children, disputes all across the country between divorced or separated parents about whether their younger children should be vaccinated. And so, we've seen cases in different provinces analyzing that issue. And essentially, they come to the same conclusion, which is, yes, they should.
Adam Stirling [00:01:17] mm - hmm.
Michael T. Mulligan [00:01:17] The interesting element of it, and it's one of the things I must say that generally commends the justice system is the fact that you have to have reasoned, objective analysis for decisions, right?
Adam Stirling [00:01:33] yes.
Michael T. Mulligan [00:01:33] The whole idea of going to court is you've got an impartial person who is going to the judge, look at all of the evidence and not simply come to a decision, but explain how they've come to the decision, so anyone can read it and see how they've come to it. It's not just a matter of the length of the person's foot. And so, one of the cases of the sort that I've described just came out of Alberta, but it was an interesting one worth commenting on. The fact pattern involved divorced parents who have a 12-year-old and a ten-year-old child, and the mother wished to have the children vaccinated. But the father was resistant to that, and it had apparently been taking his cues from information he was finding on the internet.
Adam Stirling [00:02:23] I see.
Michael T. Mulligan [00:02:23] Not always a source of truth. And so, before this judge, came all of this material that the judge that the father had downloaded from the internet, talking about things like the so-called pandemic and calling the vaccines experimental, things of that sort.
Adam Stirling [00:02:43] Yep.
Michael T. Mulligan [00:02:44] And then evidence provided by the mother and counsel for the mother about scientific reports and analysis of the virus and the vaccine and the testing done on the vaccine for children. And so, the case called, it called upon the judge to analyze all of this material and come to a reasoned decision about it. And so, it's worth commenting on from that perspective because the judge took the time to do that, looking at the printouts of material that the father had found and all of the information that the mother had found, as well as information provided by a lawyer who was appointed to help the children. That's something which can also be done in B.C., where you have a lawyer who's appointed just to look out for the kid's interests.
Adam Stirling [00:03:32] Interesting.
Michael T. Mulligan [00:03:35] And so the judge analyzed all of that and concluded that the benefits of the vaccines, very substantially outweighed the small risks that it posed to children. Everything, of course, have some small risks associated with it.
Adam Stirling [00:03:52] Yes.
Michael T. Mulligan [00:03:53] But the judge concluded that the vaccine, the benefits of it vastly outweighed the small risk that could occur, and the judge was also quite critical of the sort of material that the father had sort of fallen for online. And the other challenge with the case was the father, who was the person who was the vaccine sceptic, was providing this material to the 10- and 12-year-old telling them things about the vaccine that caused the children to become very worried about it, right.
Adam Stirling [00:04:30] Interesting.
Michael T. Mulligan [00:04:30] They had the father presenting them with this material, telling them this could harm them. And so, at the end of the day, after analyzing all of the material and the evidence before, the judge, he concluded, what I have indicated. And so, he ordered several things, including that the children should be vaccinated when the mother saw fit to have that done. Further, the judge ordered that future medical decisions, if the parties can't agree, will be made by the mother.
Adam Stirling [00:05:00] Wow.
Michael T. Mulligan [00:05:01] And furthermore, that the father is to cease providing the children with age and appropriate information that he's finding on dubious websites, causing them to be concerned about getting vaccinated.
Adam Stirling [00:05:17] Interesting.
Michael T. Mulligan [00:05:17] And so it's an interesting thing because it does involve that element of rationality, carefully looking everything from the perspective of the legal test for children, which is in Canada; what is in the best interest of the child?
Adam Stirling [00:05:32] Yes.
Michael T. Mulligan [00:05:33] Right. It's not analyzed from the perspective of what the parents want or what rights to the parents have. It's always to be analyzed from the perspective of what's in the children's best interest. And so having done that, the mother will be allowed to vaccinate the children. She'll be given future authority to make medical decisions if they can't agree, and the father's been directed to stop providing this unreliable age-inappropriate information to the children, which is causing them anxiety. And so happily, the 10- and 12-year-old, I suspect, will be off getting their shots, hopefully sooner rather than later.
Adam Stirling [00:06:11] I also find it's of interest that neither parent will be permitted to speak negatively about the other in front of the children. So, the mother won't be able to say your father's an idiot, he doesn't know what he's talking about, he's wrong about the vaccine, either. So, there is a little bit of symmetry there in terms of shielding the children from the dispute entirely.
Michael T. Mulligan [00:06:29] That's true. And you hope those kind of provisions work right, at least it could serve as a reminder to both people that they need to bear in mind, you know what their role is. They're not there enforcing some kind of a right you have as a parent.
Adam Stirling [00:06:42] No.
Michael T. Mulligan [00:06:43] What they're doing is sort of serving in the best interests of the kids. And it doesn't serve kids well to have parents bad mouthing one another and telling them how the other person is a nut or whatever it might be. And so hopefully that admonition is a reminder not to do that and to focus on what their best interest is and to do that in a rational way and a good reminder to everyone. Don't believe everything you read on the internet. One of the challenges, of course, in 2021 is whatever wacky views somebody might have, you'll find a thousand other people parroting that wacky view. And if you started searching for it, it's a virtually self-reinforcing state of affairs where algorithms will keep showing you whatever you know, misguided thought you might have.
Adam Stirling [00:07:35] Yeah.
Michael T. Mulligan [00:07:36] If you start searching for it and reading it more and more, you'll get fed the same thing because the algorithms on social media and for search sites are intended to feed people things that they will continue to pay attention to.
Adam Stirling [00:07:50] Yes.
Michael T. Mulligan [00:07:50] How you sell advertising. You don't make money if you are feeding people things that they have no interest in seeing and contradict what they think. They move on and go somewhere else to find self-reinforcing things. And so if you start down the rabbit hole of reading things on social media or searching for things claiming that the pandemic is fake or the government's out to magnetize your arm or whatever it might be, you will find thousands of other people who are joining in the chorus, warning you about the risks of becoming magnetic if you get vaccinated, and it's all nonsense. But for the people who are reading this, you no doubt feels real, right?
Adam Stirling [00:08:35] yeah.
Michael T. Mulligan [00:08:36] Because you know the internet doesn't have an editor to it.
Adam Stirling [00:08:40] no.
Michael T. Mulligan [00:08:40] You know, when you pick up the newspaper or listen to the radio or television, you're not going to, you know the completely unreasonable views are going to get filtered out. You're just not going to, you know, hear people warning you about the risk of becoming magnetic if you get vaccinated against the flu or something, right? No doubt there are people out there that think that, but it's going to get weeded out. But that's simply not true online. And moreover, once you start reading about it, you'll get more and more of that, and it can wind up reinforcing people's misguided views. So, I suppose it can be hard to break out of that. But you do have judges all across the country who have no particular interest in, you know, they're not the vaccine manufacturer.
Adam Stirling [00:09:26] nope.
Michael T. Mulligan [00:09:26] Or the government. They're not running for anything. Their task is to make a rational, impartial decision who are looking at all of the information and who are coming to the exact same conclusion that this Superior Court judge in Alberta came to and carefully explaining how it is, they came to the decision. And so perhaps that would give some people some comfort that you've got smart, impartial people who have no interest in anything in terms of the parties or economics or political interests or anything else. They're not trying to sell you advertising, and they're not trying to get you to keep clicking on the Facebook page. So having looked at it all and who are coming to exactly this conclusion, which is when you look at it, it is clearly in people's interest to become, to get vaccinated, to protect themselves and to protect the community.
Adam Stirling [00:10:21] Legally speaking, here on CFAX, 1070 will continue in just a moment. Stay with us.
Adam Stirling [00:10:26] Legally Speaking, continues on CFAX 1070, joined by Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers. What's next on our agenda, Michael?
Michael T. Mulligan [00:10:35] Next on the agenda would be the oppression of the COVID 19 Related Measures Act and what it does with respect to potential liability for spreading COVID 19. In the background of that is that in B.C. we have the enact called the Emergency Program Act, which we've been using with depressing regularity as a result of floods and the pandemic and so on. That provides some special powers to government to take emergency action. And because COVID 19 has been going on for so long, rather than continuing to renew the state of emergency, at least for it. We have the COVID 19 Related Measures Act and both of those pieces of legislation. One of their elements is to limit civil claims for negligence for decisions related to those sort of emergencies,.
Adam Stirling [00:11:33] mm-hmm.
Michael T. Mulligan [00:11:34] and the rationale for that, I think, is understandable. Right. When you have an emergency room, somebody is making some difficult decision about, you know, do you close this highway, or do you write you permit the school to be open? You don't necessarily want that to result in litigation if the difficult decision turned out to be wrong. And the way it works under the COVID 19 Related Measures Act is that the regulations can prescribe whole classes of activity or individuals who are exempt from negligence, resulting in the spread of COVID or difficulties arising from it. And they include things in the regulations, things like decisions made in the promotion of health, the relief of poverty or the advancement of education or religion. Very broad things.
Adam Stirling [00:12:26] yes.
Michael T. Mulligan [00:12:27] So what that would mean, practically speaking, would be, for example, if somebody was to permit religious service to go on. And it turned out that you've got COVID from the person sitting next to you, you would not be able to sue the priest or the religious official holding the ceremony, or necessarily the government for permitting the religious ceremony in the first place or the school to be open, for example, on the basis of simply negligence or carelessness.
Adam Stirling [00:12:59] hmm.
Michael T. Mulligan [00:12:59] Right. However, that exemption is only for the regular sort of negligence, which would be carelessness,.
Adam Stirling [00:13:07] Yes.
Michael T. Mulligan [00:13:07] Failing to meet the standard of care of somebody acting reasonably in that circumstance.
Adam Stirling [00:13:12] Mm-Hmm.
Michael T. Mulligan [00:13:13] What is not exempted is gross negligence.
Adam Stirling [00:13:16] Interesting. So, there's a threshold.
Michael T. Mulligan [00:13:18] More ... There is. You can't just do anything you like, right?
Adam Stirling [00:13:22] Mm-Hmm.
Michael T. Mulligan [00:13:23] And that seems reasonable.
Adam Stirling [00:13:24] Yeah.
Michael T. Mulligan [00:13:25] And so what then is gross negligence and how might it interface with some of the decisions that are being made currently? And that concept of gross negligence, courts have tried to define that over time. They've spoken about it as something it could include willful misconduct. Right. Like if you knew if somebody came in and said, I've got COVID in the, you know, religious officials have all come on in any way, sit over here.
Adam Stirling [00:13:51] I see.
Michael T. Mulligan [00:13:52] next to Adam.
Adam Stirling [00:13:54] .... next to Adam.....
Michael T. Mulligan [00:13:54] You might turn into willful misconduct, or you knew the person was infectious. You asked them to sit down. But it can also include something short of willful misconduct. It can include wrongdoing, which would be described as a, you know, very marked departure from the standard that a reasonable person would engage in. And what that is can depend on factors, including the degree of risk and the standard of care that you have for somebody. And so, there's another case that speaks about it this way. So therefore, in situations where the standard of care is very high, like, for example, if you're caring for a child or a vulnerable person. Right.
Adam Stirling [00:14:37] Yes.
Michael T. Mulligan [00:14:37] The standard for gross negligence is arguably less than ordinary care. Where there were particularly egregious conduct can result in, you know, a very serious risk. So, let's imagine, you know, let's imagine you're putting a child on a bungee jump with, you know, concrete at the bottom of it.
Adam Stirling [00:14:57] Yes.
Michael T. Mulligan [00:14:57] Right. It would. You've got to have for a child, you've got a very high standard of care there, right? And so, in the grievous potential harm is the, you know, rubber band isn't tied up. And so there would be a higher expectation there, even if the only liability potential was for gross negligence. And so, the potential relevance of that in the current sort of policy matrix is that we've talked about the success we've had in getting children that have been old enough to get vaccinated, vaccinated. And that's great.
Adam Stirling [00:15:33] Yeah.
Michael T. Mulligan [00:15:33] But younger children, right, five to eleven have only recently become eligible to get vaccinated. And in British Columbia, the decision was made to not allow the second shot for a period of eight weeks rather than three weeks, which would be the interval that the Pfizer company would specify for the vaccine.
Adam Stirling [00:15:56] mm-hmm.
Michael T. Mulligan [00:15:56] The rationale for that, as it may seem to have some good success in having doses spread out longer for adults. When we had a shortage of vaccine at the beginning of the pandemic, when that was available. But what it means is that even diligent parents who are trying to get their younger children vaccinated would not have had time to get their kids both of their shots. Right.
Adam Stirling [00:16:20] Yeah.
Michael T. Mulligan [00:16:20] That's only been available now for about a month.
Adam Stirling [00:16:22] Yeah. And so, while the government has made the decision to. Require ordinary employees to be vaccinated, right, and they'll be, you know, suspended, and eventually terminated if they don't get vaccinated. Provincial government employees. They made the decision not to do that for teachers or staff in elementary schools\.
Adam Stirling [00:16:44] hmm.
Michael T. Mulligan [00:16:44] And they've left that instead with school boards.
Adam Stirling [00:16:47] yes.
Michael T. Mulligan [00:16:48] And we've seen decisions where the school boards have also decided to pass on the issue. We've seen that, I think in Sooke recently and Saanich made that same decision. But what it means is that you've got a circumstance where there are young children for whom you would have a very high standard of care or you're caring for a young child.
Adam Stirling [00:17:08] Yeah.
Michael T. Mulligan [00:17:08] We're you're making and, where you know, that they cannot, no matter how diligent they might be, have gotten fully vaccinated, making the decision in that context, with the rapid spread of the Omicron variant to say we are not going to require teachers or staff to be vaccinated to therefore protect these young children for whom you have a very high standard of care, and where we know that in some, you know, happily rare cases, there can be extreme harm if a child were to get infected.
Adam Stirling [00:17:47] Yes.
Michael T. Mulligan [00:17:48] And so it's in that matrix, at least for the next month or so where somebody was looking at would the protection available in these COVID 19 Related Measures Act or the equivalent protection in the Emergency Program Act shield, let's say the government or the school board or indeed a teacher,.
Adam Stirling [00:18:10] hmm.
Michael T. Mulligan [00:18:10] Who decided to come in and care for young, vulnerable children, while, unvaccinated.
Adam Stirling [00:18:17] Interesting.
Michael T. Mulligan [00:18:17] And you would have to analyze that from the perspective of would that rise to the standard of gross negligence? Is that more than just, well, I was not quite as careful as they should have been, right? We have a known risk.
Adam Stirling [00:18:30] Yeah.
Michael T. Mulligan [00:18:31] And a very high standard of care and a potential extreme harm. And so, I would urge those who are in a position to consider whether you should extend the requirement for vaccination not only to, you know, government employees working at the whatever it might be, right?
Adam Stirling [00:18:49] yeah.
Michael T. Mulligan [00:18:49] You know, dealing with the public in some fashion, whether you should extend that same requirement to teachers who we know are caring for young children who are not fully vaccinated in the context of a pandemic and with a variant that appears to be extremely infectious. And so, I would hope that those in charge of those decisions, be that the provincial government who could clearly act or school boards, who can also clearly act or indeed teachers or staff who are making an individual decision about what they're doing. I would urge them to think about what they're doing and what their decisions are in the context of whether it's what you're doing here grossly negligent.
Adam Stirling [00:19:37] hmm.
Michael T. Mulligan [00:19:37] Bearing in mind the high standard of care you've got for children and what you're doing is, of course, knowing. Nobody can be unaware of the fact that young children five to eleven cannot have been fully vaccinated in British Columbia.
Adam Stirling [00:19:54] Yeah.
Michael T. Mulligan [00:19:55] Because of the time period, people would know that teachers would know it if you were going into teach and you're not vaccinated. School boards would know it if they made the decision not to require vaccination, and the provincial government would clearly know it. And so, I suppose what I would say is that you're not necessarily protected by those provisions if what you're doing meets that relatively low standard of gross negligence.
Adam Stirling [00:20:22] Hmm.
Michael T. Mulligan [00:20:22] And so we would ask people to think carefully about those decisions, both personal and policy, depending on where you are in that matrix and ask yourself whether what you're doing would make it through even that filter of gross negligence. Bearing in mind that you're caring for young children,
Adam Stirling [00:20:42] Michael Mulligan a pleasure is always Legally Speaking here on CFAX 1070. Looking forward to I think we're doing one of these next week, aren't we?
Michael T. Mulligan [00:20:50] That sounds good to me.
Adam Stirling [00:20:51] All right. December the 30th. If I'm here and I believe I will be, I look forward to speaking with you then, Michael. A pleasure, as always.
Automatically Transcribed on January 6, 2022 – MULLIGAN DEFENCE LAWYERS