Proposed legislation protects Ontario businesses from pandemic-related legal claims

On October 20, 2020, the Ontario government tabled the Supporting Ontario’s Recovery Act, 2020 (the Act) in the legislature for first reading. 

The Act will significantly limit the risk of Ontario businesses relating to COVID-19 infection or exposure.

Protection from liability

The Act provides broad immunity against claims relating directly or indirectly to acts or omissions pertaining to actual or potential coronavirus (COVID-19) infection or exposure on or after March 17, 2020. 

For such claims, no cause of action arises against any individual, corporation or other entity if:

• The proposed defendant acted or made a good faith effort (i.e., an “honest” effort, whether reasonable or not) to act in accordance with (a) applicable public health guidance relating to COVID-19 and (b) any applicable federal, provincial or municipal law relating to COVID-19; and
• The acts or omissions of the proposed defendant do not constitute gross negligence (collectively, the Immunity Provisions).

Subject to the limitations discussed below, any “proceeding” that is directly or indirectly based on “anything referred to” in the Immunity Provisions may not be brought or maintained against a person, and no person is entitled to any compensation or other remedy or relief for the extinguishment or termination of rights under the Act.

As noted in an accompanying press release, the Immunity Provisions are intended to protect workers and businesses across the economy, including those engaged in the healthcare, grocery, restaurant, retail, charity, not-for-profit and minor sports sectors. 

Exemptions

The Act carves out certain types of claims which may be prosecuted even if the Immunity Provisions are engaged: 

• Persons whose acts or omissions took place in breach of a mandatory COVID-19 closure law will not be protected from liability.
• Certain employment-related claims are also exempted. The Immunity Provisions do not apply to:
  • a cause of action of any individual in respect of 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;
  • a cause of action of a worker employed by a Schedule 1 or Schedule 2 employer, or the worker’s survivor, for personal injuries or accidents arising out of and in the course of the worker’s employment or an occupational disease for workers; and
  • a cause of action of a worker employed by a Schedule 1 or Schedule 2 employer, or the worker’s survivor, to which the Workplace Safety Insurance Board or a Schedule 2 employer is subrogated under section 30 of the Workplace Safety and Insurance Act, 1997 (collectively, the Exemptions).

Retrospective application

If passed, the Act will prohibit any proceeding relating to the conduct described in the Immunity Provisions that is not subject to an Exemption. The Act applies to all such proceedings regardless of when they were initiated. For example, any qualifying proceeding initiated before the coming-into-force of the Act will be terminated on the day that the Act becomes law. 

Conclusion 

The Act has passed its first reading and is expected to soon become law. 

The legislation introduces sweeping immunity provisions that will improve the risk profile of most businesses operating in the province and the actuarial profile of their insurers. In particular, plaintiffs will be subjected to specific evidentiary requirements (i.e., demonstrating an absence of compliance or a good faith effort to comply with public health guidance and COVID-19 rules) and a higher legal standard (i.e., gross negligence) than might otherwise apply. Businesses should carefully study any COVID-19 claims to determine whether they are viable in light of the Act.