Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (the “Bill”) was introduced before the Ontario legislature on October 20, 2020. The Bill enacts the Supporting Ontario’s Recovery Act, 2020 in order to provide civil liability protection related to COVID-19. On November 16, 2020, Bill 218 was reported as amended from Standing Committee and passed Third Reading. Bill 218 received Royal Assent on November 20, 2020 and is now in effect.
The Bill specifically prohibits any action against a person arising directly or indirectly as a result of an individual’s exposure to or infection with COVID-19 due to an act or omission of that person as long as at the relevant time, the person acted or made a good faith effort to act in accordance with:
(1) any applicable public health guidance relating to COVID-19 that applied to the person, which specifically includes any advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication, by any of the following:
- the Chief Medical Officer of Health, an Associate Medical Officer of Health or the Office of the Chief Medical Officer of Health,
- 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,
- a federal public health official,
- a federal or provincial minister, ministry or agency, or an officer or employee in such a ministry or agency,
- a municipality, or an officer or employee of a municipality, or
- a regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body; and
(2) any applicable federal, provincial or municipal law relating to COVID-19 that applied to the person.
In addition, amendments recently made at the Standing Committee extend the protection of the Bill to person(s) who are vicariously liable for the acts and omissions of another person, as long as the other person’s liability is negated in relation to any such act or omission by the prohibitions contained in the Bill.
The Bill explicitly defines good faith effort as including “an honest effort, whether or not that effort was reasonable” and extends its civil liability protection to “persons” – the definition of which comprises individuals, corporations and other entities, including the Crown in right of Ontario – who make such an effort.
It is important to note that the civil liability protection offered by the Bill is not limitless and is in fact subject to numerous exceptions. For example, it would specifically not apply in situations where the act or omission of the person that resulted in the exposure to or transmission of COVID-19 is tantamount to gross negligence. What exactly constitutes “gross negligence” is not specifically defined in the Bill and ultimately requires a finding of fact that must be made by a trial judge. However, guidance on the issue may nonetheless be gleaned from the Supreme Court of Canada’s explanation of the term in other contexts and which refers to conduct in which, if there is not conscious wrongdoing, there is a very marked departure from the standards by which responsible and competent people usually govern themselves. Furthermore, it would specifically not apply in situations where the act or omission of that person occurred while their operations were required, by law, to be closed or in relation to an aspect of their operations that were required, by law, to be closed.
Employers should be mindful of the fact that although the Bill may offer them civil liability protection against claims from customers, patients, clients and the like who attend their workplace, this does not extend to individuals exposed to or infected with COVID-19 in the course of their employment, or in the performance of work for or the supply of services to a person. Where this occurs, affected individuals will be permitted to pursue civil claims against the responsible employer, including claims for workers’ compensation under the Workplace Safety and Insurance Act, 1997 where applicable. That being said, employers are already required to take “every precaution reasonable in the circumstances for the protection of a worker” under the Occupational Health and Safety Act so as long as they continue to do so in the context of COVID-19, they will arguably be taking the right steps to mitigate against the possibility of at least some of these types of claims.
Of note, the statutory protection implemented by the Bill would apply retroactively to March 17, 2020. Consequently, if passed, any proceeding captured by the Bill’s application but commenced prior to its coming into law will simply be deemed to have been dismissed without costs.
In Our View
Bill 218 – versions of which have already been legislated in British Columbia and in Nova Scotia – is an important and likely welcome step for many who continue to navigate safely operating businesses and organizations of all types during the pandemic. As indicated by Attorney General Downey:
“The proposed legislation would ensure Ontarians, who are contributing to the recovery of our province and make good faith efforts to follow public health guidance and laws on COVID-19, are not discouraged from making a difference in their communities because they are afraid of civil liability.”