Ontario Tables Bill to Protect Persons from COVID-19-Related Liability

On October 20, 2020, Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020. If passed, it would enact The Supporting Ontario’s Recovery Act, 2020 (Act) which provides protection for persons from liability for actions related to COVID-19. It would also remove the framework in the Municipal Elections Act, 1996 providing for ranked ballot elections for municipal council offices. As of today’s date, the Bill is at Second Reading in the Ontario legislature.

Protection from Liability for COVID-19-Related Actions

The Act would bar actions that arise 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 where certain conditions are met:

the person acted or made a good faith effort to act in accordance with applicable public health guidelines and federal, provincial and municipal laws relating to COVID-19, and
the act or omission of the person does not constitute gross negligence.

The Act defines the following terms:

“good faith efforts” includes any honest effort, whether or not that effort is reasonable
“public health guidance” includes any advice, recommendations, directives, guidance or instructions given or made in respect of public health by a number of actors, including the Chief Medical Officer of Health, a public health official of the government or Canada, public health agencies, a government ministry or a municipality
“person” includes any individual, corporation or other entity, as well as the Crown in right of Ontario.

The Act’s protection would not extend to all cases.

Persons who engage in gross negligence would not be protected from liability. Note that the Act does not define “gross negligence.” The Supreme Court of Canada has held that the determination of whether gross negligence exists is a finding of fact to be made by the trial judge in the particular case. However, the Court has held, in the context of operating a motor vehicle at least, that phrases such as gross negligence and wilful misconduct imply conduct in which, if there is not conscious wrongdoing, there is a very marked departure from the standards by which responsible and competent people habitually govern themselves.

Further, the protection would not apply where the act or omission arises in relation to operations that were ordered closed under provincial regulation, or where the potential liability relates to a worker being exposed, infected or injured in the course of employment.

Significantly, the Act would have retrospective effect, meaning that it would apply regardless of whether the action was brought before the day the Act comes into effect. Proceedings commenced before that day would be deemed dismissed, without costs, on the day the Act comes into force and no person would be entitled to any other compensation or remedy for the termination of rights under this Act.

The government has stated that the Act is intended to protect those who have made an honest effort to follow public health guidelines and laws, including healthcare workers and institutions, frontline workers who serve the public everywhere from grocery stores to restaurants and retail stores, businesses and their employees, charities, non-profit organizations and coaches, volunteers and minor sports associations.

Consequently, if passed, the Act would be broad in its application. It would effectively end any actions arising out of COVID-19 and bar future actions other than in the most egregious circumstances. This includes actions against the Crown, healthcare providers, and employers.

Editor’s Note on November 23, 2020: Bill 218 received Royal Assent and came into force on November 20, 2020. Amendments made at Committee to Schedule 1 (discussed above) added protection from vicarious liability.

Changes to Ranked Ballot Elections for Municipalities

If passed, Bill 218 would also amend the Municipal Elections Act, 1996 to remove the framework for conducting ranked ballot elections for offices on a municipal council. The supporting regulation (O. Reg. 310/16 Ranked Ballot Elections) would be revoked. The government has indicated that removing “the option to use ranked ballots for municipal council elections, [would make] the electoral process consistent across municipal, provincial and federal elections.”

Should you require further information, please contact Amanda Cohen or any member of our Litigation Group.

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