In a news release issued on Tuesday, the government of Ontario announced that it is introducing the Supporting Ontario’s Recovery Act, 2020 (the “Act“).
The Act will provide immunity from civil liability for “persons” (including individuals, workers, volunteers, organizations, corporations, and other entities) who make a “good faith effort” to follow “public health guidelines and laws” relating to COVID-19. 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. “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.
The Act is not yet in force, having only been introduced and undergone first reading on October 20, but its application will be retroactive to March 17, 2020, if passed. If the Act is passed, all existing claims addressed by the Act are deemed dismissed and all such future legal proceedings will be barred.
While the proposed Act provides broad protection, it does exclude certain claims that arise in the employment context. There are two important aspects to these exclusions.
First, the exclusions appear to 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 will 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 will 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.
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.
We will continue to monitor the progress of the Act and update you accordingly.
Stay safe and don’t hesitate to reach out with any questions.