Since the onset of the COVID-19 pandemic, growing and prospective litigation has become a concern for governments in Canada. In response to such concerns, the provinces of British Columbia and Nova Scotia have introduced legislation aimed at providing protection from certain COVID-19 related liabilities. The Ontario government has followed suit in this regard and the Supporting Ontario’s Recovery Act, 2020, S.O. 2020, C 26, Sched 1 (the “Act”) came into force on November 20, 2020. The Act provides certain protections to a person, including any individual, corporation or other entity (including the Crown in right of Ontario), from COVID-19 related liabilities. Importantly, such protection from liability extends to those who would otherwise be vicariously liable for the acts and omissions of another person if such person is protected by the Act.
More specifically, section 2 of the Act bars any cause of action (with exceptions) 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 as a result of an act or omission of the person if:
- the person acted or made a good faith effort to act in accordance with public health guidance and federal, provincial or municipal laws relating to COVID-19; and
- the person’s act or omission does not constitute gross negligence.
The Act defines “good faith effort” to include an honest effort, whether or not that effort is reasonable. The terms “law” and “public health guidance” are also defined broadly in the Act. The term “gross negligence” however, has not been defined under the Act. Courts have considered this term over the years and it is generally understood that the difference between gross negligence and ordinary negligence is one of degree and not of quality. Conduct constituting gross negligence has been interpreted in the jurisprudence as 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.[1] It has also been said to require willful, wanton, or reckless misconduct or an utter lack of all care.
The Act also applies retrospectively so that no proceedings may be brought or maintained that relate to such barred cause of action, regardless of whether the cause of action arose before, on or after November 20, 2020. Further, any proceeding commenced before November 20, 2020 on such barred cause of action is deemed to have been dismissed without costs.
Exceptions from protections under the Act:
The protections from liability under the Act are not absolute. For example, a person may not be able to avail themselves of the protection where the person’s acts or omissions in question occurred during the person’s operation when such operation was required to be closed by law. Employers are also not protected from a cause of action of an employee with respect to exposure to or infection with COVID-19 that occurred in the course of employment. This means that non-unionised employees can sue their employers for damages not covered by the Workplace Safety and Insurance Act, where the employer’s failures were negligence related. Whether the employer’s failure to exercise the requisite degree of care constitutes gross negligence will depend on the particular facts of each case. In order to avoid such liability and take advantage of the protections afforded under the Act, employers should stay on top of any development of public health guidance and relevant legislations relating to COVID-19, and comply with same in a timely fashion.
[1] Walker v. Coates Estate, [1968] S.C.R. 599.
