The COVID Legal Landscape

By Athina Ionita, Student-at-Law

The COVID-19 pandemic has brought with it a wave of legal claims. The Ontario government has attempted to protect those subject to this wave of litigation and return some stability to the litigation landscape with the passing of Supporting Ontario’s Recovery Act, 2020,[1] (“the Act”) which came into force on November 20, 2020.

Section 2 of the Act prohibits causes of action against “any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person” if the person acted, or made a good faith effort to act, in accordance with public health guidance and laws relating to COVID-19, and if the act or omission does not constitute gross negligence.

The term “good faith effort” is defined in section 1 of the Act and “includes an honest effort, whether or not that effort is reasonable”.

The legislation is retroactive and therefore applies to actions commenced prior to the statute’s coming into force date (subsections 2(5) and 2(6)).

There are a number of exceptions under the Act, one of which is that there is no protection for “gross negligence”. Further, certain causes of action arising from employment are exempt from protection (subsection 4(2)).

In sum, the legislation protects entities from legal actions based on COVID-19 infections where the entities made good faith efforts to comply with public health guidelines and were not grossly negligent.

Gross Negligence

“Gross negligence” is not defined in the Act, but there is legal authority on what it may constitute. The standard of “gross negligence”, in the context of municipal liability, has been interpreted by the Supreme Court of Canada to mean “very great negligence”.[2]

The Supreme Court has also described “gross negligence” as being conduct in which there is a very marked departure from the conduct of a reasonable person.[3]

The Ontario Court of Appeal has held that gross negligence does not require proof of misconduct that is wilful, wanton or flagrant. The Court held that, to a great extent, the determination of gross negligence depends of the facts of each case and is interpreted through the prism of common sense.[4]

Although the term “gross negligence” has defied precise definition, it is difficult to prove. There has to be more than a mere breach of duty. The breach must be of high magnitude.[5]

Public Health Guidance

The legislation protects those who “acted or made a good faith effort to act in accordance with” public health guidance. Under section 1 of Act, “public health guidance” is defined as meaning “advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication” by a number of listed actors, including the Chief Medical Officer of Health, federal public health officials, ministries of the Ontario provincial government, and others.

To date, there has been a wide range of directives and guidance issued with respect to COVID including Minister’s orders, Ministry Directives, class orders issued by public health units and more, which would likely fall under the definition of public health guidance outlined in the Act.

Further, many of these documents have undergone several changes, and past versions of these documents are not always easily retrievable. Notably, section 2(2) says that subsection (1) of the Act applies “regardless of any conflict or inconsistency in the public health guidance or laws applicable to the person”.

Similar Legislation Across Canada

Other provinces have enacted similar liability protection legislation. The analogous British Columbia law arises from the COVID-19 Related Measures Act^[6]and the COVID-19 (Limits on Actions and Proceedings) Regulation, which are largely similar to the Ontario Act.^[7]

Like the Ontario legislation, the British Columbia legislation does not protect acts of “gross negligence”. Further, protection is only available where the person in question, “was engaging in the act in accordance with all applicable emergency and public health guidance”, or “had a reasonable belief that the person was engaging in the act in accordance with all applicable emergency and public health guidance.”^[8]

In New Brunswick, the waiver of liability arises from the Mandatory Order under the Emergency Measures Act.[9] The order provides protection to those providing essential service, absent gross negligence.[10]

In Alberta, although long-term care groups lobbied the government for similar legislation to provide protection against COVID-19 lawsuits, such legislation in that province has yet to be enacted.[11]

Effect of Legislation

To date, there are no cases citing the Ontario, British Columbia or New Brunswick legislation. Therefore, there remain some unknowns with respect to the extent of protection the legislation will provide. [12]

In Ontario, the legislation has not completely deterred new COVID-related lawsuits. For example, publicly available documents and media reports show that a number of class actions have been launched since the legislation came into force.

That being said, we anticipate that it will be difficult for plaintiffs to succeed in COVID-related lawsuits. The legislative debates in respect of the Act are instructive.[13] The Attorney General of Ontario, Doug Downey, noted that “[f]ront-line workers are under an incredible amount of stress. Each day, they serve our communities while doing their best to minimize the spread of the virus. They do this for the safety of the people they serve, their families, their loved ones and their neighbours”.

The Attorney General stated that, with the benefit of hindsight, some measures taken by businesses have not been perfect, but that does not mean that such businesses should be held legally liable. He indicated:

Maybe you didn’t follow the right public health guidance or you misunderstood it. But in a lawsuit, because your facility was permitted to stay open and you made an honest effort to follow the rules, an informed effort—you tried to follow them and you believed that you were in compliance—you will be immune from civil liability unless a court determines that you were grossly negligent. This should not be taken to mean that Ontarians can stand by and disregard the rules or make them up on their own. They have to make a good-faith effort to follow the rules.

The Attorney General also commented on conflicting and confusing information provided to organizations, stating:

…especially during the early days of the pandemic, it wasn’t always easy to narrow down the rules that applied in one community or another amid the sometimes seemingly conflicting reports. An organization might receive one set of public health guidance from a municipality and a different set from a public health unit or a regulator. They might even conflict on certain points. That’s why the legislation provides that the immunity applies even where such a conflict exists.

The comments of the Attorney General demonstrate that, in the trying and unusual times of COVID-19, the legislation is designed to protect those who make an honest effort to follow public health guidance.

Conclusion

Although the rollout of vaccines may signal a near end of the pandemic, COVID litigation is expected to continue for the time being. Judicial scrutiny of the Act may curb this trend.

It seems probable that many lawsuits will not survive, absent extreme circumstances. COVID-19 has presented a number of unique challenges, and most organizations have adapted. They have made a “good faith effort” to comply with public health guidance and laws, which is what the law requires. Under the Act, a “good faith effort” includes “an honest effort, whether or not that effort is reasonable”.

Organizations are not expected to be perfect. Human nature would suggest that honest mistakes have been and will continue to be made – they are almost impossible to prevent. Even if organizations have been negligent, that does not translate to legal liability. The Ontario government has given broad protection from liability. It will be difficult to demonstrate that the acts or omissions of an organization rise to the high level of “gross negligence”.

Businesses and individuals should continue to stay informed with respect to new or updated public health guidance, paying particular attention to those documents specific to their industry.

Our firm continues to monitor new developments with respect to Supporting Ontario’s Recovery Act.

[1] Supporting Ontario’s Recovery Act, 2020, S.O. 2020, c. 26, Sched. 1.

[2] Holland v. Toronto (City), (1926), [1927] S.C.R. 242 (S.C.C.).

[3] McCulloch v. Murray, [1942] SCR 141

[4] Crinson v. Toronto (City), 2010 ONCA 44 (Ont. C.A.).

[5] Sutherland v. North York (City of), 1997 CanLII 736 (ON CA), citing Occhino v. Winnipeg (City), 1988 CanLII 5647 (MB CA).

[6] COVID-19 Related Measures Act, SBC 2020, c 8.

[7] B.C. Reg. 204/2020.

[8] Subsections 4 (a) and (b) of the regulation

[9] Emergency Measures Act, R.S.N.B. 2011, c.147.

[10] Section 25.

[11] https://calgaryherald.com/news/local-news/alberta-long-term-care-group-lobby-government-for-bill-to-protect-against-covid-19-lawsuits

[12] As of March 26, 2021.

[13] Hansard,  Legislative Assembly of Ontario, October 22, 2020.