Bill 218 Passes Third Reading: Legislative Protection from Liability for Covid-19 Related Claims Get’s Green Light

On November 16, 2020, Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020  (“Bill 218”) passed third reading in the Ontario Legislature giving the green light to the legislation, which now only requires the rubber stamp of Royal Assent from the Lieutenant Governor to become law in Ontario.

Bill 218 provides protection for “persons” (including not-for-profit and for-profit agencies) from liability for actions related to COVID-19 by barring.  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.  Specifically, the person (or agency) must have:

  • 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 (or agency) does not constitute gross negligence.

“Good faith efforts” as defined in the legislation includes any honest effort, whether or not that effort is reasonable.  Arguably, this means that an agency can fail to comply with public health guidance or laws, even if doing so constitutes negligence and still be insulated and protected from liability, so long as the negligence isn’t so severe as to constitute “gross negligence”, which would generally require conscious breach of public health guidance and/or a very significant breach of standards that falls well below what any reasonably responsible agency would have done in the circumstances.

It’s important to note that this protection would not extend to all situations.  In particular, the protection would not apply the claim arises in circumstances where:

    1. the agency was ordered closed under provincial regulation, or
    2. where the potential liability relates to a worker being exposed, infected or injured in the course of employment.

The latter exclusion from protection is of significant concern for agencies and employers who do not have WSIB coverage.  Many WSIB-alternative insurance providers have taken the position that Covid-19  is not a compensable workplace “accident” and therefore lost wages and associated benefits are not being covered.

Once the Bill receives royal assent (which will likely occur in the near future) the legislation will apply retroactively, thereby defeating even claims that have already been filed with the courts before the bill was introduced or becomes law.  Proceedings commenced before the Bill becomes law would be deemed dismissed, without costs, and no person would be entitled to any other compensation or remedy for the termination of rights under the Bill.  This legislation will have a significant impact on the numerous class action law suits that have been filed.

PooranLaw will continue to monitor this legislation.   In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.