Protections From COVID-19 Liability: Supporting Ontario’s Recovery Act

Liam McMunagle
Posted November 27, 2020 Category: Businesses, Individuals/Families

The Supporting Ontario’s Recovery Act, 2020 (the “Act”) is now in force, providing individuals with protection from civil liability if they have made a “good faith effort” to follow “public health guidelines and laws” relating to COVID-19. The Act was revised from its original form and now extends civil immunity to those who are vicariously liable for the acts or omissions of another person whose liability is negated under the Act.

As we discussed in a prior email alert and blog post, the government of Ontario announced the impending introduction of the Act on October 20th. The Act came into force exactly one month later, on November 20th, but its application is retroactive to March 17, 2020. This means that all existing claims addressed by the Act are deemed dismissed and all such future legal proceedings will be barred.

Pursuant to the Act, no civil claims can be brought against any “person” as a direct or indirect result of an individual being actually or potentially exposed to or infected with COVID-19 if the “person” made “good faith efforts” to comply with laws and public health guidance relating to COVID-19. As noted above, civil claims may also not be brought against those who are vicariously liable, meaning that, for example, an employer does not remain liable for the actions of its employee if the employee is immune under the Act.

“Good faith effort” is defined as “an honest effort, whether or not that effort is reasonable”. While this standard is lower than the normal common law standard of reasonableness, the Act provides an exception so that claims can be pursued in cases of gross negligence.

Despite the Act’s broad protection, it does exclude certain claims that arise in the employment context. There are two important aspects to these exclusions.

First, the exclusions preserve an employee’s ability to bring a claim against their employer if the employee is exposed to or infected with COVID-19 in the workplace.  While employers registered with the WSIB may have such claims covered by WSIB insurance (and corresponding civil immunity under the Workplace Safety Insurance Act, 1997), employers that are not covered by WSIB insurance remain liable to their employees if their employees contract COVID-19 in the course of work.  While these employers may rely on other defences, they do not have the benefit of the civil immunity provided by the Act

Second, the exclusions preserve an individual’s ability to bring a claim where they were exposed to or infected with COVID-19 while working for or supplying services to a “person” (i.e., an individual, worker, volunteer, organization, corporation or other entities). While this provision is somewhat unclear, it appears to be intended to extend the exclusion that applies to employees to those who are employee-like but not strictly employees (for example, independent contractors).

The Act also confirms that claims before the Workplace Safety and Insurance Appeals Tribunal for statutory insurance benefits will not be affected.

This protection is welcome for those that have been concerned about potentially being liable to third-parties, such as customers, related to COVID-19.  However, employers have not been granted protection against potential liability to their employees.  We encourage employers to be diligent in continuing to fulfill the obligations under the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker” and the obligations arising from the regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, which we detailed in our September 29th blog post.

Please do not hesitate to contact us with any questions.

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Liam McMunagle
Posted November 27, 2020 Category: Businesses, Individuals/Families

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