Laws in two provinces aim to limit individual and corporate liability for claims arising in the pandemic context. The enactments will extinguish liability where such an entity has made an "honest effort" to comply with pandemic health orders or if it acted with reasonable belief that it was complying with such orders. The intent is to provide broad protections from COVID-19 exposure-related lawsuits. Both laws are intended to have retroactive effect.
Ontario - Bill 218
Under Ontario's Bill 218, claims based "directly or indirectly" on an individual being potentially infected with or exposed to COVID-19 are barred if the defendant acted in accordance with applicable public health guidance and laws, or made a good faith effort to do so. "Public health guidance" is defined broadly to encompass any advice, recommendations, directives and instructions (regardless of the form or manner of communication) from any level of government, health officials, and applicable regulators.
Bill 218 would protect any individual, corporation or other entity, including the Ontario government. The scope is similar in effect to BC's equivalent legislation, discussed below.
But protections do not extend to:
"any act or omission constituting gross negligence
"any act or omission that occurred while a law required
operations to be closed, in whole or in part
"lawsuits brought by an employee against their employer
British Columbia's Ministerial order, COVID 19 Related Measures Act and Regulation
BC's similar provisions have their roots in an April ministerial order which protected "essential workers" from liability for damages resulting, directly or indirectly, from an individual being or likely being infected with or exposed to COVID-19 as a result of the personal operating or providing an essential service.
In July, the BC Legislative Assembly passed the COVID-19 Related Measures Act (the "CRMA") , which more broadly aimed to limit any damages related to the pandemic. The same government subsequently enacted a regulation that extended protection to carrying on a business generally, whether or not it is an essential service. The new regulation repealed the previous ministerial order, and conferred protection from liability unless the person does not follow, or does not reasonably believe they are following, all applicable emergency and public health guidance. Like Ontario, there is an exception for gross negligence.
Standard of Conduct
Bill 218 defines "good faith effort" as including "an honest effort, whether or not that effort is reasonable". This determination will likely be a focal point of COVID-19 lawsuits given the multitude of potential considerations, including the apparent importance of the defendant's subjective intent. BC's "reasonable belief" wording is a higher legal standard, as it is more objective.
Gross negligence requires a higher level of misconduct than ordinary negligence. Gross negligence has been defined by the Supreme Court of Canada as a very marked departure from the required standard of care or a "very great negligence" . Contracting or potentially contracting coronavirus, directly or indirectly, will not give rise to a cause of action unless the standard was breached. Business operations that implement measures with the intent of protecting their patrons, even if those measures were insufficient, would not normally be liable.
Timing
Both the common law and provincial Interpretation Acts are typically hostile towards retroactive laws. According to the CRMA, however, "a regulation ... may be made retroactive to a specified date that is not earlier than the date of the relevant declaration of a state of emergency and, if made retroactive, is deemed to have come into force on the specified date." In BC, the provisions come into force by regulation of the Lieutenant Governor in Council. Because BC's Minister of Public Safety and Solicitor General declared a state of emergency on March 18, the Lieutenant Governor may declare the CRMA retroactive to that date. Given that provincial states of emergency orders were proliferating in March or April, the plaintiff's bar will have difficulty arguing that these measures interfere with a vested right.
In Ontario, subsection 2(5) also provides for retrospective effect. It says that existing proceedings that occurred on or after March 17, 2020, will be deemed to have been dismissed, without costs, on the day Bill 218 comes into force. Thus, plaintiffs may seek to amend their claims as arising prior to this date.
Implications
Ontario and BC are clearly trying to support long-term care as well as other brick and mortar businesses. Any public-facing business would stand to benefit, and the only exception is actual or potential exposure to or infection with COVID-19 that occurred in the course of employment, or the performance of work for, or the supply of services to, a person.
These provinces are also indirectly supporting businesses by providing comfort to liability insurers. Pandemic-related exposure is extinguished so long as the insured subjectively intended to follow protocols or reasonably believed that it was doing so – subject only to gross negligence. Although businesses may be liable for actual or potential exposure to or infection of an employee, liability policies typically exclude employee claims.
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