Ontario’s Provincial Government has recently proposed Bill 218, titled the Supporting Ontario’s Recovery Act (the “Bill”). If passed, the most significant effect that the Bill would have would be to drastically limit the potential liability that businesses, individuals and the government could face from lawsuits brought by people who were infected or exposed to COVID-19. It is important that individuals and organizations are aware of how the Bill, if passed, will affect them.
The Bill Would Provide Protection from Liability from Most
Individuals and Organizations that have Acted in Good Faith
The Bill would have the effect of barring any lawsuits from being brought, which arise from anyone being infected with or exposed to COVID-19, whether directly or indirectly, through the actions or failure to act of another party, so long as that other party has made a good-faith effort to comply with any public health guidance and/or laws relating to COVID-19, which apply to that other party. The Bill, if passed, would apply retroactively, so the bar against bringing such lawsuits related to COVID-19 would extend to any person who was infected with or exposed to COVID-19 as early as March 17, 2020. Furthermore, any lawsuit that has already been brought as a result of such an incident that occurred on or after March 17, 2020 will be considered to be dismissed without legal costs being ordered to either party on the day that the Bill comes into effect.
There are Exceptions to the Protections from Liability
If the actions or failure to act of that party constitute gross negligence, they will not enjoy this protection from lawsuits related to COVID-19. Another exception included in the Bill provides that a party will not be protected from a lawsuit arising to another’s infection with or exposure to COVID-19, where it occurred as a result of the liable party failing to close their operations in accordance with a law. The most significant exception that is provided for in the Bill states that an employer will not be protected from such lawsuits that are brought against them by one of their employees.
The Standards that Must be Met to Receive Protection
As mentioned above, the Bill would provide protection from lawsuits from those that have made good-faith efforts to comply with public health guidance or laws related to COVID-19. The Bill defines a “good-faith effort” to include an honest effort to comply, whether or not the effort is reasonable. As this definition could be subject to interpretation, it is likely that we will see lawsuits in the near future that will revolve around whether or not a party made a good-faith effort to comply and, thus, is entitled to protection from such a lawsuit.
Conversely, protection from lawsuits will not be afforded to parties whose actions or failures to act constitute “gross negligence.” While gross negligence is not defined in the Bill, the standard that must be met to show gross negligence is significantly higher than the standard for proving ordinary negligence. The Courts have described gross negligence as a very significant departure from the standard of care that would reasonably expected from a party who has a duty to provide a standard of care.
The Bill’s Impact on Businesses
While some of the protections afforded by the Bill will be very attractive to businesses, it is likely that many business-owners will feel that the Bill does not go far enough protect them. For instance, it will be a relief to business-owners that they will be protected from lawsuits who catch or are exposed to COVID-19 while in their place of business, so long as the business was entitled to be open and good-faith efforts were made to comply with the law and public health guidelines.
On the other hand, it will be troubling for many employers that the Bill does not protect them from lawsuits that may be brought by their employees who caught or were exposed to COVID-19 in the workplace. As a result, it is very important that employers continue to provide a safe working environment for all their employees and have specific policies and measures in place related to COVID-19. Such policies may include required training on COVID-19 safety, provision of personal protective equipment, and making reasonable accommodations to allow their employees to maintain safe physical distancing in the course of their employment.
We will continue to follow how the Courts deal with lawsuits that arise in relation to this Bill and will also strive to keep our readers updated as new laws are introduced and developments occur.