In response to growing and prospective litigation arising out of the COVID-19 pandemic, several jurisdictions have considered liability protection legislation1. The Ontario Government is no exception and has recently introduced Bill 218, the Supporting Ontario's Recovery Act (the “Act” or the “Bill”).
The Act includes provisions which would limit civil liability for the transmission and/or contraction of COVID-19 to those who engage in gross negligence.
The Government has indicated that its reasoning for introducing the Act is to protect those who have made an honest effort to follow public health guidelines and laws.2
Section 2 of the Act reads, as follows:
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,
- At the relevant time, the person acted or made a good faith
effort to act in accordance with,
- Public health guidance relating to coronavirus (COVID-19) that applied to the person, and,
- Any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and,
- The act or omission of the person does not constitute gross negligence.
Proceedings directly or indirectly based on or related to any such matter may not be brought, and any that exist when the Act comes into force are deemed to have been dismissed without costs.
The Act would be retrospective, meaning that it would apply regardless of whether an action was commenced before the Act came into effect.
Not surprisingly, the Bill, if passed, poses significant legal issues.
First, is the issue of the meaning of good faith in applying the Act. While the Act sets out a definition of “good faith” (presently under subsection 1(1)), it expressly excludes the reasonableness of efforts made as being part of the inquiry. As a result, the inquiry appears to be a subjective rather than an objective one. In other words, it is unclear what will constitute good faith and in what circumstances it might be challenged.
The second issue involves the meaning of “public health guidance” in the context of the Act and the limit of its reach. As presently set out under subsection 1(1), “public health guidance” may include several means such as recommendations, advice, directives, guidance, or instructions either given or made in respect of public health, regardless of the form or manner of its communication. In addition, the list of Government entities who might communicate public health guidance is extensive and includes the following:
- The Chief Medical Officer of Health appointed under the Health Protection and Promotion Act, an Associate Chief Medical Officer of Health under that Act or the Office of the Chief Medical Officer of Health.
- A person appointed as a medical officer of health or associate medical officer of health of a board of health under the Health Protection and Promotion Act, or an employee of a board of health.
- A public health official of the Government of Canada.
- 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
Third, the proposed wording of the Act has been left sufficiently broad to apply to any individual, corporation, or other entity. As explained above, due to its broad wording and application, the Act, if passed, would effectively extinguish civil claims in relation to the exposure/transmission of COVID-19, except, possibly, if there is evidence suggesting gross negligence. We will update this article as the legislation proceeds through the parliamentary process.
1 British Columbia and Nova Scotia have legislation in place, citing the rationale of protecting workers supporting communities during the COVID-19 pandemic.
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