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Over the past eight months, individuals in Canada and around the world have been provided with differing messages on how to stay safe during the COVID-19 pandemic. These mixed messages and directives have arisen in part because of ongoing research and studies by health officials and scientists – as they discover new information and data about the coronavirus, relevant recommendations have changed.

The evolving views about best practices has resulted in increased scrutiny from the public and the press. This has particularly been the case as the relevant government authorities continue to change recommendations and guidelines relating to safety during the pandemic. These continuous changes have left individuals and businesses questioning if they are protected from potential liability arising from operating during the pandemic. In response to this situation, Ontario’s provincial government introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (the “Act”) on October 20, 2020.

The Act is a new form of legislation which aims to protect any person from civil liability resulting from individuals being or potentially being infected with or exposed to COVID-19. The protections extend to “any person”, which is defined broadly meaning any individual, corporation, or other entity, including the Crown in right of Ontario. The caveat is that any person will only be eligible for the statutory protection of the Act if they can demonstrate that they have acted or made a “good faith effort” to act in accordance with both:

  • public health guidance relating to COVID-19 that applied to the person; and
  • any federal, provincial, or municipal law that applied to the person.

The Ontario government’s decision to introduce the Act is consistent with requests from organizations who have expressed concerns about the costs and related risks of operating during the pandemic. The Act is intended to establish a defence based on compliance with applicable law and related guidelines.

The Act defines the “good faith effort” which organizations are expected to engage is as an honest effort, whether or not that effort is reasonable. Although this language is seemingly broad and open to interpretation, the expectation is that persons will continuously monitor and implement measures intended to adhere to public health recommendations and legislation.

Ontario’s Attorney General, Doug Downey, has said that the Act is not meant to provide coverage for “bad actors” but rather to “provide legal shelter for frontline workers and volunteers who have sought out the best COVID-19 advice and followed it, who made an honest effort in good faith.”

The new concept of “public health guidance” is also incorporated in the Act, and this 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.

The Act does not protect against acts or omissions which constitute gross negligence or acts or omissions by persons who were operating contrary to a law which required the person’s operations to close. The Act also does not define gross negligence, but the accepted common law definition as applied by the Courts in Ontario provides that gross negligence requires a higher level of misconduct than standard negligence.

The Act also excludes causes of actions and proceedings with respect to:

  • Workers employed by Schedule 1 or Schedule 2 employers as defined in the Workplace Safety and Insurance Act, 1997 (which include hospitals and certain non-hospital health care employers) in respect of a personal injury by accident arising out of and in the course of the worker’s employment or an occupational disease; and
  • Claims made by employees against employers relating to actual or potential exposure to or infection with COVID-19 that occurred in the course, or as a result, of employment.

If, as expected, the Act receives Royal Assent, the Act will apply retroactively to infections or exposure to COVID-19 on or after March 17, 2020. This means that any proceedings which commenced before the Act came into force will be deemed to have been dismissed without costs. 

Takeaway for Business

Every person should do their part to attempt to prevent the spread of COVID-19 in their community. Businesses and individuals must continue to remain current on and take steps to comply with public health and government advice, recommendations, or instructions. By doing so, most persons will qualify under the Act to avoid any liability arising from the spread or potential spread of COVID-19. The Act excludes specific claims which may arise in the context of an employment relationship. However, the defence of following relevant public health guidelines and other applicable law is likely to be one of the foundations of a successful defence against any such claims. Further, many workplaces also have some element of interaction with or access by the public. As a result, the Act serves to reinforce the benefits from a legal perspective for businesses to comply with relevant public health requirements and recommendations.