Canadian health officials have been criticized for what seems like inconsistent messages on how to keep safe during the COVID-19 Pandemic. In defence of public health officials, the Chief Public Officer of Canada, Dr. Theresa Tam, recently observed that inconsistent messaging is a product of evolving science. It cannot be said enough: The COVID-19 Pandemic is unprecedented.
While public health officials continue to adapt and respond to evolving science, individuals and businesses and individuals struggle with an important question: What measures should be introduced to protect against liability arising from COVID-19?
Currently, the legislative framework likely to apply with respect to liability arising from COVID-19 is the Occupiers' Liability Act. The Occupiers' Liability Act provides that occupiers must, "take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises... are reasonably safe while on the premises." Given the unprecedented and evolving nature of COVID-19, this offers little in terms of guidance or reassurance.
Ontario has recently proposed legislation, which would, if passed in its current form, extend protections to businesses and individuals operating during the COVID-19 pandemic.
The new legislation, entitled "Supporting Ontario's Recovery and Municipal Elections Act, 2020" ("Bill 218") seeks to protect businesses and individuals from civil lawsuits relating to COVID-19. Key features of the draft legislation are:
- Individuals and businesses will only be eligible for statutory protections under Bill 218 if they acted or made a good faith effort to act in accordance with:
- public health guidance relating to COVID-19 that applied to the person;
- and any federal, provincial or municipal law relating to COVID-19 that applied to the person.
Scope of Protection
The Act defines "any person" to include any individual, corporation or other entity including the Crown in right of Ontario, from liability arising from individuals being or potentially being infected with or exposed to COVID-19. The Act provides that no cause of action arises as a direct or indirect result of an individual being or potentially being infected with or exposed to COVID-19 where there is compliance or a good faith effort to comply with "public health guidance" and federal, provincial and/or municipal laws in response to COVID-19.
"Public health guidance" is defined as advice, recommendations, directives, guidance or instructions, from various individuals and government bodies, including the Chief Medical Officer of Health, public health officials in the Government of Canada, ministers or ministries of the Government of Ontario or Canada and its officers or employees, and municipalities and their officers or employees, among others.
"Good faith effort" is defined to include an honest effort, whether or not that effort is reasonable. While this may leave room for interpretation, the clear expectation is that businesses and individuals will keep apprised of public health recommendations and federal, provincial and municipal laws. The protection afforded by the Act will not apply to acts or omissions which amount to gross negligence.
The Act does not define gross negligence. At common law, gross negligence is described as requiring a higher level of misconduct than standard negligence. For example, the Supreme Court of Canada has held that gross negligence means, "very great negligence,"1 or a "very marked departure from the required standard of care"2. The determination of whether certain acts or omissions amount to gross negligence is necessarily fact- and context-specific.
As an example, in the context of municipal liability for damages arising from snow and ice on municipal sidewalks, a plaintiff in Ontario must establish gross negligence on the part of the municipality. In those cases, gross negligence may be found where the municipality fails to follow its own policy of treating icy sidewalks where it knew that icy conditions were likely to occur.3 Similarly, gross negligence has been found where the municipality has failed to clear icy conditions more than 24 hours before the plaintiff has fallen.4
What will amount to "gross negligence" in the context of COVID-19 remains to be seen. However, seven months into the pandemic some measures such as physical distancing and facial coverings appear to be commonplace. This raises the question – if there is not at a minimum to implement these measures, could there be a finding of gross negligence?
While Bill 218 provides protections, there are notable exceptions:
- The draft legislation exempts claims made by employees against employers. If Bill 218 is passed in its current state, employees will continue to be able to pursue civil remedies against employers, including claims for workers' compensation under the Workplace Safety and Insurance Act.
- Protections will not extend to any individual or business found to have engaged in acts or omissions which constitute "gross negligence".
- Protections will not apply where the relevant act, or omission, occurred while a law required the individual or business' operation to close, in whole or in part.
Bill 218 passed first reading on October 20, 2020. If the Act receives Royal Assent, protection will apply retroactively to infections or exposure to COVID-19 on or after March 17, 2020. Any proceedings commenced before the Act comes into effect will be deemed to have been dismissed, without costs. Parties to any such proceeding should consult with legal counsel to confirm the status of the proceeding.
The Importance of Keeping Current
Bill 218 is a welcome measure for businesses and individuals concerned about the potential for liability arising out of COVID-19. The standard to be met is that of honest, good faith attempts to follow public health advice and federal, provincial and municipal law.
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