Ontario introduces a Bill to create a shield from COVID-19 liability

Updated: Apr 15



COVID-19 has had an unprecedented impact on both people and businesses across Ontario and beyond. In the wake of growing tension over numerous COVID-19 infections and continuously changing public health standards and guidelines, the Ontario government introduced Bill 218 to provide liability protection to individuals and entities from COVID-19 infections and exposures.



Bill 218 was introduced on October 20, 2020, by the Honourable Doug Downey, Attorney General of Ontario. This Bill will enact the Supporting Ontario’s Recovery Act, 2020, and amend the Municipal Elections Act, 1996 to eliminate the Ranked Ballot elections framework.

Who is Protected?

If enacted, Bill 218 will apply to persons, which includes any individual, corporation or other entity, as well as the Crown in right of Ontario. Please note that this includes not only health care organizations, but restaurants and non-profit entities such as dance companies and sports clubs as well.

What Liability Protection Does This Bill Provide?

Under section 2 of the Supporting Ontario’s Recovery Act, 2020, no causes of action can be brought against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to COVID-19 on or after March 17, 2020, if:

  1. The person acted, or made a good faith effort to act, in accordance with applicable public health guidance on COVID-19, and any federal, provincial or municipal laws related to COVID-19; and

  2. The act or omission of the person does NOT constitute gross negligence

This is true regardless of any conflict or inconsistency in any applicable public health guidance or laws. Any proceeding commenced before or on the day the Bill comes into force will be deemed to have been dismissed, without costs, on the day the Act comes into force.

A few key points to keep in mind:

  1. A “good faith effort” is defined in Bill 218 to include any honest effort, whether or not that effort is reasonable.

  2. “Public health guidance” is defined broadly under the Act to include advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communications, and can be provided by a range of government actors, such as the Chief Medical Officer of Health, or an officer or employee of a Government Agency, whether of Ontario or Canada.

Exclusions from Liability Protection

As mentioned above, the protection does not extend to acts or omission that constitute gross negligence.

If enacted, the Bill will exclude from its liability protection the acts or omissions of persons whose operations, or an aspect of their operations, were required by law to close (i.e., non-essential businesses ordered closed).

It will also exclude causes of actions or proceedings with respect to:

  1. Workers employed by a Schedule 1 or Schedule 2 employer as defined under the Workplace Safety and Insurance Act, 1997, or the worker’s survivor, in respect of a personal injury by accident arising out of and in the course of the worker’s employment, or which the Workplace Safety and Insurance Board or Schedule 2 employer is subrogated under section 30 of the Workplace Safety and Insurance Act, 1997

  2. Actual or potential exposure to, or infection with, COVID-19 that occurred in the course, or as a result, of employment or in the performance of work for or supply of service to a person

Status

As of October 27, 2020, Bill 218 has been ordered referred to the Standing Committee on Justice Policy. We will continue to monitor its status as it progresses through the Ontario Legislature.

Authored by Ellen Xu (exu@ddohealthlaw.com) of DDO Health Law.

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