The COVID-19 pandemic upended the class actions landscape in 2020, with over 30 COVID-19 related class actions launched in Canada since the pandemic took hold in March. While that number pales in comparison to the hundreds of COVID-related claims launched in the United States, it remains imperative for Canadian businesses and foreign businesses operating in Canada to be aware of potential areas of risk that may arise because of the global pandemic.
The main types of claims that have been started in Canada so far generally fall into one of four categories:
As we move ahead in 2021, we see a continued risk of class action claims related to the COVID-19 pandemic arising. That said, new legislative measures may alter the potential scope of liability for certain claims related directly to the virus. For instance, Bill 218, the Supporting Ontario's Recovery Act, came into force in Ontario in November 2020. It provides broad liability protection from COVID-19 related incidents, going back to March 17, 2020. The new law states that a person (defined as including individuals, corporations, and even the government) will not be held liable if an act or omission, directly or indirectly, leads to another person being or potentially being exposed to COVID-19, so long as they have made a “good faith” effort to act in adherence to public health guidance, and have not acted in a grossly negligent manner. The law defines a “good faith effort” as being an honest effort, no matter if the effort is reasonable.
While this new law will offer broad protection against liability much of the time, it does not remove potential liability in claims brought forward by employees or workers who were exposed to COVID-19 in the workplace.
It will be of great interest to see how the Ontario courts interpret this “good faith effort” standard in determining liability in COVID-19 related claims. While COVID claims are sure to continue in 2021, we predict that the new legislative trends seen in Ontario, as well as in other provinces such as British Columbia where similar legislation has recently been enacted, will provide added security for businesses seeking to continue their operations in accordance with public health guidelines, without the fear of undue exposure to legal liability.