A new proposed Ontario Bill could limit exposure to liability, connected to COVID-19, for workers, individuals and businesses. Bill 218, The Supporting Ontario’s Recovery Act, 2020, carried through its second reading at Ontario’s Legislative Assembly on October 27, 2020, and if passed, would provide liability protections retroactively to March 17, 2020. The new bill seems to be an effort by the Ontario government to allow individuals to continue operating businesses without liability attaching during the pandemic. However, while this new bill proposes to protect businesses and individuals from liability, one group that would not be protected under the proposed new act are employers.

What protections does Bill 218 provide?

According to section 2 of the Act:

[No] cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,

(a) at the relevant time, the person acted or made a good faith effort to act in accordance with, (i) public health guidance relating to coronavirus (COVID-19) that applied to the person, and (ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and

 (b) the act or omission of the person does not constitute gross negligence.”

There are two main components to liability protection under the proposed Act:

1. Those seeking the protection should be aware of what advice, recommendations, directives, guidance or instructions were provided by public health authorities, and this information should be up-to-date.
2. There has to be an act, or “good faith effort”, to implement the public health authority’s advice, recommendations, directives, guidance or instructions. For example, recently the Public Health Agency of Canada recommended that Canadians wear masks comprised of three-layers, including a middle filter layer. Businesses and individuals are expected to follow such recommendations to gain liability protection.

What is meant by a “good faith effort”?

Under s. 1 of the proposed Act, a good faith effort is defined as “an honest effort, whether or not that effort is reasonable”.

What is meant by “public health guidance”?

The proposed Act states that what is referred to as public health guidance “means advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication”. The Act lists a number of public health authorities who can give advice, recommendations, directives, guidance or instructions, including:

• A Government of Canada health official;
• A Government of Canada or Ontario minister, or an officer or employee in such a ministry;
• A Government of Ontario or Canada agency, or an officer or employee in such an agency;
• A regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body;
• A municipality, which includes an officer or employee of a municipality;
• Under the Health Protection and Promotion Act, a person appointed as a medical officer of health or associate medical officer of health of a board of health, or an employee of a board of health; and
• The Chief Medical Officer of Health appointed under the Health Protection and Promotion Act, an Associate Chief Medical Officer of Health under that Act or the Office of the Chief Medical Officer of Health.

Who does the proposed bill protect?

The Act is quite broad in its description of who would be protected. Under section 1(2) of the Act, liability protection is extended to “a person”. A person is defined as “any individual, corporation or other entity, and includes the Crown in right of Ontario.” Notably absent, however, is the mention of employers until section 4 of the proposed Act.

Who and what would not be protected?

Claims that arise due to gross negligence are not protected under the Act. As well, an operation that was required to be closed, in part or in whole, but stayed open will not be covered under the Act.

The proposed Act would not limit exposure to liability for employers. Section 4 of the Act outlines that the Act does not apply to “employment and performance of work”. Section 4(2) of the Act explains that the protections do not extend to causes of actions in which an employee had “actual or potential” exposure to COVID-19.

That means that employers can be vulnerable to COVID-19 related claims from their workers. Employers should read the Ontario Guide to the Occupational Health and Safety Act. This guide outlines the obligations of employers to keep workplaces and employees safe. The Ontario government also recommends that employers develop a workplace safety plan, which will help protect workers against COVID-19 exposure at the workplace.

For advice on employer liability and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.