The Government of Ontario recently introduced Bill 218, Supporting Ontario's Recovery and Municipal Elections Act, 2020 (“Bill 218”). If enacted in its current form, Bill 218 will offer liability protection for businesses that make an honest effort to follow public health guidelines and laws regarding exposure to COVID-19. The legislation would apply retroactively to COVID-19 exposures that occurred from March 17, 2020 onward and could require the dismissal of some ongoing actions.
Scope of Liability Protection
Bill 218 seeks to provide protection against COVID-19 related liability for any person, including “any individual, corporation or other entity”. Subsection 2(1) provides:
No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,
a) at the relevant time, the person acted or made a good faith effort to act in accordance with,
i) public health guidance relating to coronavirus (COVID-19) that applied to the person, and
ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
b) the act or omission of the person does not constitute gross negligence.
A “good faith effort” is defined as “an honest effort, whether or not that effort is reasonable.”
“Public health guidance” is defined as “advice, recommendations, directives, guidance or instructions” made by various individuals and government entities, including the Chief Medical Officer of Health, public health officials of the Government of Canada, government agencies and ministries, municipalities, and their officers or employees.
For businesses seeking to protect themselves against COVID-19 related liability, it remains to be seen what constitutes a good faith effort, as public health recommendations from various entities have conflicted and evolved throughout the pandemic. However, if the legislation is passed in its current form, organizations and businesses may take comfort in subsections 2(2) and (3), which provide that the protection from liability applies regardless of any conflict or inconsistency in the applicable public health guidance or laws, no matter the degree of specificity.
Parties litigating liability claims will likely have to turn to courts to determine whether a good faith effort was made in accordance with public health guidelines based on the specific facts of each case.
Notable Exceptions to Liability Protection
The liability protections proposed under Bill 218 are subject to several exceptions, including:
- Any acts or omissions which constitute gross negligence;
- Any liability claims where the relevant act, or omission, occurred while a law required the individual's or business's operation to close, in whole or in part; and
- Any claims made by employees against employers for COVID-19 exposure or infection that occurred in the course of the employee's performance of work.
The legislation does not provide guidance as to the meaning of “gross negligence”. If plaintiffs intend to litigate on this basis, they will likely have to turn to the common law meaning of this term.
Application to Existing and Contemplated Proceedings
If Bill 218 in its current form becomes law, no proceedings that fall within the meaning of subsection 2(1) may be brought on or after the day it comes into force. Additionally, Bill 218 would apply retroactively to infections or exposure to COVID-19 on or after March 17, 2020. This means that any relevant proceedings commenced on or after March 17, 2020, will be deemed to have been dismissed, without costs, on the day Bill 218 comes into force.
Implications for Businesses and Organizations
For businesses and organizations concerned about the risk of liability arising from COVID-19, Bill 218 can offer some peace of mind. However, given the focus on good faith efforts, it is important for such businesses and organizations to track and document their efforts and ensure they are abreast of the ever-evolving public health guidance and laws.
Bill 218 passed second reading on October 27, 2020 and is presently being considered by the Standing Committee on Justice Policy. We will continue to monitor the progress of Bill 218, and keep you advised as the bill progresses through the legislative process.
Originally Published by Stikeman, November 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.