The Ontario government is introducing a new piece of legislation called the Supporting Ontario’s Recovery Act, 2020 or Bill 218. It had its first reading on October 20, 2020 in Toronto. Section 2 of the Act sets out that no cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to the coronavirus or COVID-19 as a direct or indirect result of an or omission of the person if (a) at the relevant time, the person acted or made a good faith effort to act in accordance with (i) public health guidance relating to coronavirus or COVID-19 that applied to the person and (ii) any federal, provincial or municipal law relating to coronavirus or COVID-19 that applied to the person and (b) the act or omission of the person does not constitute gross negligence.
The government has set out that that the purpose of the Act is to provide “targeted protection” for those who are making an honest effort to follow public health guidelines including healthcare workers and institutions, frontline workers who serve the public, business and their employees, charities, coaches and sport associations.
The term “good faith effort” is defined in section 1 of the Act. It includes an “honest effort,” whether or not that effort is reasonable. The term “person” is also defined in section 1 of the Act. It includes reference to any individual, corporation or other entity, and includes the Crown of Ontario. Proceedings directly or indirectly based on or related to any such matter may not be brought, and any that exists when the Act comes into force are deemed to have been dismissed without costs.
However, section 4(2) of the Act sets out that there are certain proceedings and / or causes of action that are unaffected by the Act. The Act then sets out 4 instances where section 2 of the Act does not apply. These are:
- A cause of action of a worker who is or was employed by a Schedule 1 employer or Schedule 2 employer, or of the worker’s survivor, in respect of a personal injury by accident arising out of and in the course of the worker’s employment or an occupational disease.
- A cause of action of a worker who is or was employed by a Schedule 1 employer or Schedule 2 employer, or of the worker’s survivor, to which the Workplace Safety and Insurance Board or Schedule 2 employer, as the case may be, is subrogated under section 30 of the Workplace Safety and Insurance Act, 1997.
- A cause of action of an individual in respect of an actual or potential exposure to or infection with coronavirus (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 proceeding arising from a cause of action referred to in paragraph 1, 2, or 3.
So is this positive news for employers? The answer is actually quite murky. The legislation does seem to provide some certainty to employers where it sets out that employers would be held liable only under the exception of gross negligence for any sort of COVID-19 exposure or infection. However, section 4(2) seems to counter that assertion as it carves our certain employment law settings where this Act would not apply. It is doubtful that this legislation, if enacted as it is written now, would bar any employee from commencing a proceeding with respect to an employer for exposure or infection of coronavirus that took place at work. We would also argue that this legislation further does not bar an independent contractor from bringing a claim against a person for exposure or infection of COVID-19 as well. Where the defence is applicable, however, our readers should be aware that “gross negligence” is a high bar and higher than the common law standard of what would be actionable as negligence in the normal course of things.
In sum, it remains to be seen how these legislative developments will be interpreted and applied in the months and possibly years to come. For the time being, however, it is clear that the Ontario government’s message is as follows: at least in some respects, suing over COVID-19 – related injury may not be that simple.