Parents and children are often overwhelmed with advertisements for products and services intended to provide support, further education, or provide entertainment. While many of these products and services are useful, or even essential, tools, such as technology, food choices, and childcare services, it is important to ensure that individuals and families are provided with sufficient information to make the best decision for them. However, despite best efforts, things can still happen which put parents and children at risk. Whether it is a product liability concern or a concern about potential injuries, it is important to have sufficient information available to weigh out the risk and protect your family.
This blog post will provide an update on the E. Coli outbreak which has impacted various daycares throughout Calgary and will look at the duty and standard of care owed by businesses providing products and services aimed at children.
Expanding E. Coli Outbreak at Calgary Daycares
On September 4, 2023, Alberta Health Services declared an E. Coli outbreak likely originating from a shared kitchen which services numerous daycares in the Calgary area. As of September 18, 2023, case numbers continued to climb with 348 lab-confirmed cases connected with this outbreak. Of these, 27 cases occurred from secondary transmission, with 37 children and one adult having been hospitalized so far.
Cuming & Gillespie LLP has been retained to pursue a class action lawsuit on behalf of those impacted by this outbreak. Details on this proceeding, and information on class action lawsuits can be found in our recent blog post.
This distressing situation has cast a spotlight on the legal responsibilities of businesses that provide products and services for children.
Children are a Vulnerable Population
The Canadian Medical Association classifies children as a vulnerable population due to their developmental stage, as they have a higher risk of experiencing adverse health impacts than the general population.
Children have also been identified as being particularly at risk for E. coli 0157, which is the strain that has been identified in the recent outbreak in certain Calgary daycares. Children are more vulnerable because their immune systems are yet not fully developed, which leaves them more susceptible to serious or long-term health impacts.
The fact that children are still developing physically, mentally and emotionally, also means they may be at greater risk of harm from other forms of illness and injury, including physical and emotional traumas. So, what does this increased vulnerability mean for the duty and standard of care owed by those who provide services and products to children?
When Does a Duty of Care Exist?
Sometimes a duty of care may seem obvious to even the most casual observer, such as the duty of care that exists between a motorist and pedestrians; doctors and their patients; and daycare staff and the children left in their care. Other situations, however, can be more complex. For example, although the Alberta Health Services investigation is ongoing, the suspected source of the E. Coli outbreak is a centralized kitchen that provided food to numerous daycares. Health inspectors have already identified three critical violations at this kitchen.
The link between the centralized kitchen and the children who became ill may not be a direct one. This kitchen provides food to a number of daycare facilities and the staff at these facilities may handle, store and/or transport the food before it is provided to the children. Business and contractual arrangements, as well as operational procedures, will be relevant in determining who owes duties of care to whom.
The Applicable Legal Test
It is easy to see how a situation involving multiple parties and relationships can quickly become complicated. When harm or losses occur, establishing these connections and determining liability requires knowledge and skill to understand the legal requirements and gather and submit the necessary evidence.
The legal test for whether a duty of care exists is an objective one. It is based on the concepts of proximity and foreseeability. For a defendant to owe the plaintiff a duty of care, their relationship must be sufficiently close and direct (in other words, proximate) that it is reasonably foreseeable that the defendant’s actions may lead to the harm or loss suffered by the plaintiff.
What is the Standard of Care?
Once a duty of care has been established, the focus switches to the defendant’s actions. Specifically, the question becomes whether they met the required standard of care, but what is that standard?
This question must be answered on a case-by-case basis. A universal standard of care does not exist. Instead, the applicable standard will be determined in court by asking what an ordinary, reasonable, prudent person would do in similar circumstances. Naturally, this will depend heavily on the specific facts of the case, including the foreseeability and degree of risk. The potential for harm may be greater for a vulnerable group than the general population.
In a professional setting, the standard will be that of a reasonably prudent professional, or manufacturer of a product (for example, prepared foods). In determining what actions are reasonable and prudent in a given situation, a court will consider relevant factors such as applicable regulatory standards and industry practice. Commercial food-handling practices are of course extensively regulated according to stringent health criteria. The standard of care in medical contexts will entail additional considerations.
The Increased Risk of Harm to Children
If a defendant’s actions fall below the required standard of care, the court will then consider what harm has been suffered by the plaintiff. The fact that children are a vulnerable population may be a relevant consideration. In the case of illness, if children experience long term health impacts this may result in ongoing medical support and expenses, or other impacts on their future development and opportunities.
Contact Cuming & Gillespie LLP for Further Information on the Calgary Daycare E. Coli Outbreak Class Action
At Cuming & Gillespie LLP, our experienced personal injury lawyers provide trustworthy representation to families who have sustained injuries or losses due to an accident or negligence in connection with child-focused products or services.
If a member of your family has suffered injury or illness resulting from the use of such products or services, or you have been impacted by the Calgary daycare E. Coli outbreak, it is important to consult with a skilled injury lawyer who can help you determine whether you may have a claim. It can be difficult to know what steps to take after a product liability incident, which is why we work closely with clients throughout the course of the claims process and litigation when necessary. To schedule a confidential consultation with one of our lawyers, contact us online or call our office at 403-571-0555.