COVID-19 has placed an unprecedented strain on the health care system and has resulted in challenges for certain health service providers in service delivery and maintaining the health and safety of the patients and clients that they serve.
Unfortunately, at the same time that health providers and institutions have been experiencing and navigating the inevitable increased risks of operating in a pandemic, some providers in the insurance sector have responded by curtailing coverage options and introducing new coverage exclusions on account of COVID-19. It has been creating an untenable situation to balance the health service needs of the community and business risks of operation.
To respond to this growing issue, on October 20, 2020, the Conservative Government in Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (the “Act”) which provides for immunity from COVID-19 liability under certain conditions.
What is the COVID-19 liability protection under Bill 218?
The Act will protect persons from liability resulting from individuals being or potentially being infected with or exposed to COVID-19.
Who will receive this protection from liability?
The protections offered under the Act will apply broadly to any person, meaning any individual, corporation or other entity, including the Crown in right of Ontario.
What is the scope of the liability protection?
The Act prohibits any proceeding from being brought against a person resulting from an individual being or potentially being infected with or exposed to COVID-19 where, at the relevant time, the person acted or made a good faith effort to act in accordance with public health guidance and federal, provincial or municipal laws related to COVID-19.
A “good faith effort” is defined in the Act as including “an honest effort, whether or not that effort is reasonable”.
What’s excluded from protection?
The protection offered under the Act does not apply to acts or omissions:
- Which constitute gross negligence.
- By persons who were operating contrary to a law which required the person’s operations to close.
The Act also excludes causes of actions and proceedings with respect to:
- Workers employed by Schedule 1 or Schedule 2 employers as defined in the Workplace Safety and Insurance Act, 1997 (which include hospitals and certain non-hospital health care employers) in respect of a personal injury by accident arising out of and in the course of the worker’s employment or an occupational disease.
- Actual or potential exposure to or infection with COVID-19 that occurred in the course, or as a result, of employment with a person or in the performance of work for or supply of services to a person.
When does liability protection commence?
If the Act receives Royal Assent, protection will apply retroactively to March 17, 2020 (the day Ontario declared a state of emergency in respect of the COVID-19 pandemic), and all relevant proceedings started before the Act came into force will be dismissed without costs.
Status of the Act
Bill 218 passed first reading on October 20, 2020. Miller Thomson will continue to monitor Bill 218 as it progresses through the Ontario Legislature.