On November 20, 2020, Bill 218, entitled "Supporting Ontario's Recovery and Municipal Election Act, 2020" ("the Act") received Royal Assent.1 The Act provides at section 2(1) 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 coronavirus (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,

    1. public health guidance relating to coronavirus (COVID-19) that applied to the person, and

    2. 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.

Essentially, the purpose of the Act is to offer liability protection (protection from civil lawsuits) to workers (individuals), businesses and organizations (including volunteers) that make "honest" and "good faith" efforts to comply with and follow public health guidelines and laws relating to COVID-19. The right to bring suit against those that willfully or with "gross negligence" endanger others will remain.

"Public health guidance" is defined as "advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication, by any of the following":

  1. 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.

  2. 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.

  3. A public health official of the Government of Canada.

  4. A minister or ministry of the Government of Ontario or Canada, or an officer or employee in such a ministry.

  5. An agency of the Government of Ontario or Canada, or an officer or employee in such an agency.

  6. A municipality or an officer or employee of a municipality.

  7. A regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body.

The Act applies retroactively to any incidents or exposure to COVID-19 on or after March 17, 2020.

Among the areas that we anticipate the need for further clarity (and which may be at the heart of future COVID-19 related lawsuits) is the manner in which "[g]ood faith efforts" are defined (which is: "an honest effort, whether or not that effort is reasonable"). Interestingly, "gross negligence" is not defined at all within the Act.

Many employers will question the application of the Act to them vis-à-vis their employees. Simply put, the Act does not apply to lawsuits brought by an employee against their employer. Indeed, according to section 4(2) of the Act, Section 2 does not apply with respect to any of the following:

....

  1. A cause of action of an individual in respect of an actual or potential exposure to or infection with coronavirus (COVID-19) 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.

The Act may be one embraced by businesses operating during the pandemic and may have an effect on insurers extending liability coverage during this time. That being said, we anticipate the Courts have a challenge ahead in terms of interpreting and applying the Act as we see more and more litigation unfold and as we move further through this pandemic.

Footnote
  1. Bill 218, Chapter 26 of the Statutes of Ontario, 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.