On October 20, 2020, Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (Bill 218) for First Reading. Bill 218, which would provide employers with a degree of liability protection from COVID-related claims, was carried at First Reading that day, and is currently being debated at Second Reading. If Bill 218 is allowed to proceed past Second Reading, it must still pass through other stages before it can become law.
Scope of Liability Protection
In a press release dated October 20, 2020, the Government of Ontario explained that it was introducing the Supporting Ontario's Recovery Act, 2020 (Act) to:
… provide liability protection for workers, volunteers and organizations that make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19. At the same time, it will maintain the right of Ontarians to take legal action against those who willfully, or with gross negligence, endanger others.
If Bill 218 is enacted in its current form, the Act would provide that, with some exceptions, a cause of action will not arise against any “person,” as a direct or indirect result of an individual being infected with or exposed to COVID-19 on or after March 17, 2020, if, at the relevant time:
- The person acted or made a “good faith effort” to act in accordance with applicable public health guidance and any federal, provincial or municipal law relating to COVID-19; and
- The act or omission of the person does not constitute gross negligence.
Notably, the Act has retrospective effect. It bars proceedings directly or indirectly relating to such matters (regardless of whether the cause of action on which the proceeding is purportedly based arose before, on, or after the day the Act comes into force), and deems any proceeding that may exist when the Act comes into force dismissed without costs.
The Act defines a “person” as “any individual, corporation or other entity,” and as including “the Crown in right of Ontario.” It defines a “good faith effort” as “an honest effort, whether or not that effort is reasonable.” “Public health guidance” is defined in the Act as “advice, recommendations, directives, guidance or instructions given or made in respect of public health” by a list of persons and entities, including the Chief Medical Officer of Health, a public health official of the Government of Canada, government agencies and ministries, municipalities, and regulatory bodies.
As the Act does not currently define “gross negligence,” those claiming it may be required to rely on how it has been defined by the courts at common law.
Exceptions to COVID-19 Liability Protection
The Act includes several exceptions to the COVID-19 liability protection described above. It permits legal proceedings when the person’s act or omission:
- Constitutes gross negligence;
- Occurred while a law required their operation to close, in whole or in part; or
- Relates to an aspect of their operations that was required to close under the law.
Importantly, the Act in its current form provides for an exception to liability protection in relation to certain civil claims by employees, including claims for worker compensation under the Workplace Safety and Insurance Act, 1997.
Bottom Line for Employers
It is possible that during the legislative process, which includes debate, review, and a potential request for public input, a recommendation will be made to amend Bill 218. The bill could therefore be passed in a form different from its current form. Alternatively, Bill 218 may be passed in its current form or not at all. If passed in its current form, and except as provided above, Bill 218 would prevent legal action from being brought against companies that make an honest effort to act in accordance with applicable public health guidance and any federal, provincial or municipal laws relating to COVID-19. We will follow Bill 218’s progress as it moves through Ontario’s Legislature and report on further updates.