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December 7, 2020

Ontario’s Protections From COVID-19 Legal Liability

Authors Hendrik Nieuwland and Mackenzie Anderson

On November 20, 2020, Bill 218, the Supporting Ontario’s Recovery Act, 2020 (the “Act”), received Royal Assent and came into effect. The Act offers liability protection for individuals, businesses, and other entities that make a “good faith effort” to follow public health laws and guidelines regarding exposure to COVID-19. These protections apply retroactively to COVID-19 exposures from March 17, 2020 onward and could require the dismissal of ongoing legal actions. The Act continues to allow Ontarians to take legal action against those who willfully, or with gross negligence, endanger others. Furthermore, the Act sets out exceptions to the liability protections, including where a business was required, by law, to be closed; or where a worker was exposed while acting in the course of employment. 

Impact on Employers

The Act prevents legal action being pursued against any employer or individual that was directly or indirectly responsible for exposing others to COVID-19. This protection only occurs if the employer or individual:

  1. Acted or made a good faith effort to act in accordance with applicable public health guidelines and any federal, provincial or municipals laws relating to COVID-19; and,
  2. The act or omission of the employer or individual did not constitute gross negligence.

These protections regarding COVID-19 exposure apply retroactively from March 17, 2020 onwards. As such, all existing legal proceedings related to COVID-19 exposure that arose on or after March 17, 2020 will be deemed to have been dismissed without costs from the day the Act came into effect.

Exceptions from Liability Protection

It is important to note that the Act’s protections do not extend to all situations. The liability protections do not apply where:

  1. Exposure to COVID-19 occurred while a business’ operations were required, by law, to be closed;
  2. A worker is pursuing a claim for compensation under the Workplace Safety and Insurance Act, 1997; or,
  3. An individual is pursuing a legal action regarding exposure to COVID-19 that occurred in the course, or as a result, of employment or in the performance of work for or supply of services to a person.

The provisions of the Act have been drafted broadly. As such, reference to “individuals” pursuing a legal action likely covers employees, dependent or independent contractors, and those performing limited-scope services.    

Our firm will continue to provide you with updates as the Ontario Government’s response to the COVID-19 pandemic evolves.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.

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