On October 20, 2020, the Ontario government introduced legislation to provide protection from liability for workers, volunteers and organizations who make “good faith efforts” to comply with federal, provincial or municipal law and public health guidance relating to COVID-19.
Proposed Act Relates to Claims for Infection or Exposure to COVID-19
The proposed Act would bar claims arising from infection or exposure to COVID-19 on or after March 17, 2020, as long as the individual or organization made “a good faith effort” to act in accordance with the law and public health guidance relating to COVID-19 and was not grossly negligent.
In announcing the Bill, Attorney General Doug Downey said that the legislation was intended to provide protection for men and women who are making essential contributions to our communities during the pandemic (e.g., healthcare workers and institutions; workers in grocery stores; and volunteers at local food banks). British Columbia and Nova Scotia have similar legislation in place.
“Good faith effort” is defined in the proposed Act as “including” an “honest effort, whether or not that effort is reasonable”. The proposed Act would still permit legal action against those acting in bad faith or with gross negligence.
The Scope of “Public Health Guidance” is Murky and Seemingly Broad
The legal requirements with which individuals and organizations must comply is broadly defined but at least can be determined: “a statute or any regulation, order, by-law or other instrument made under a statute”.
The scope of the “public health guidance” with which individuals and organizations must comply is a bit murkier because while it includes some obvious sources of directives, it also includes “employees” of boards of health, government agencies, municipalities, or regulatory bodies; and the “public health guidance” can be communicated in any way (“regardless of the form or manner of their communication”).
Significantly, the proposed Act also states that the protection applies “regardless of any conflict or inconsistency in the public health guidance or laws applicable to the person” – which is important given the uncertainty and conflict in messaging at least early in the pandemic.
Retroactive Effect
The proposed Act would have retroactive effect and any proceeding commenced before the Act comes into force would be deemed to have been dismissed, without costs, on the day the Act comes into force. The proposed Act also states that no one is entitled to any compensation for the extinguishment or termination of rights under the Act.
Exceptions
The proposed Act would not apply to businesses or aspects of businesses that were required by law to be closed at the material time. There are also exceptions for certain claims by employees.
Conclusion
Bill 218 is through First Reading and was debated (Second Reading) on October 22, 2020. If passed, it will have a significant impact not only on litigation in the future, but on some claims that have already been issued. It is a welcome relief for frontline workers and organizations navigating the challenges of COVID-19 in the midst of ever-changing and sometimes conflicting directives and expectations from government and public health.
Disclaimer: Our blog is not legal advice and is never a substitute for legal advice specific to your situation. At the time of this posting, Bill 218 is draft legislation and is not in force.
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