Ontario Proposes Liability Protection against COVID-19 Lawsuits

On 20 October 2020, Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020, to offer businesses protection against lawsuits relating to COVID-19 infection or exposure. If enacted, liability protection against COVID-19 related lawsuits would apply to businesses and workers who “acted or made a good faith effort” to follow public health guidelines and laws.

Section 2(1) of Schedule 1 provides that ‘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 COVID-19 on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if:

1. 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

2. The act or omission of the person does not constitute gross negligence.

The proposed legislation defines “good faith effort” as an “honest effort, whether or not that effort is reasonable”. Public health guidance is broadly understood to include advice, recommendations, directives, guidance or instructions given or made in respect of public health by the following bodies:

• Chief Medical Officer of Health
• A minister or ministry of the Government of Ontario or Canada, or an officer or employee in such a ministry
• An agency of the Government of Ontario or Canada or an officer or employee in such an agency
• A municipality or an officer or employee of a municipality
• A regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body

The Act provides for a number of exceptions. In particular, the Act does not preclude causes of actions that result from the act or omission of a person whose operation was required to close under an existing law. Moreover, protection from liability would not apply to actions brought by a worker who is or was employed by a Schedule 1 employer or Schedule 2 employer within the meaning of the Workplace Safety and Insurance Act, 1997. Schedule 1 and Schedule 2 employers are listed under O. Reg 175/98. Broad exceptions also apply with respect to an actual or potential exposure or infection “that occurred in the course, or as a result of, employment with a person or in the performance of work for or supply of services to a person”.

If passed, the Act will enter into force on the day the Supporting Ontario’s Recovery and Municipal Elections Act, 2020 receives Royal Assent.