How Ontario’s Bill 218 impacts Covid-19 Lawsuits

Ontario’s Conservative government recently introduced Bill 218: Supporting Ontario’s Recovery and Municipal Elections Act (2020), which will protect anyone, under a broad set of circumstances (including business owners, companies, municipalities and individuals), from liability if workers and others are infected by COVID-19 and suffer losses as a result.  The Bill passed its first reading in the Ontario legislature on October 20^th and when enacted, will be retroactive to COVID-19 injury claims brought since March 17, 2020, which is when the province declared a state of emergency.

The Act was developed in response to the significant challenges to our health care systems and to workers in providing care and maintaining safety for Ontario residents during the COVID-19 pandemic.  The Act also responds to the increased risks and challenges for insurance providers, some of which have added exclusions and curtailed coverage related to COVID-19 claims. 

The Act states that persons and others who made a “a good faith effort” to act in accordance with the applicable government regulations related to COVID-19 at the relevant time of the infection cannot have proceedings or lawsuits brought against them in connection with a person exposed to, or infected with COVID-19.  Under the Act, a “good faith effort” includes “an honest effort, whether or not that effort is reasonable”.

Further, COVID-19-related injury claims cannot be brought when the infection occurred during the performance of work or while supplying services to a person.  The Act also prohibits personal injury actions and lawsuits against hospitals and certain health-care employers if a worker (whose employment falls under the Workplace Safety and Insurance Act) is infected by the virus in the course of their employment

However, there are some limitations as to the scope of protection provided in the Act.  The Act excludes cases where the actions of the individual, business or municipality: 1) constitute gross negligence; or 2) were operating illegally and as a result, were required to close operations. 

Ontario’s Attorney General, Doug Downey, has submitted that the restrictions on liability specified in Bill 218 are necessary to protect “hard-working women and men who make essential contributions to our communities, from frontline health care workers to people coaching minor sports teams, to those keeping our supply chain moving, to people volunteering at the local food bank or those simply showing up for work each day despite the unprecedented challenges of COVID-19”. 

Many Canadians would agree that well-intentioned individuals taking reasonable care to keep other safe, including front-line workers, should not be held liable if they unknowingly infect another person with COVID-19.  However, it’s undeniable that when Bill 218 becomes law, it will become more difficult for individuals to succeed in lawsuits against persons or corporations whose actions may have caused them to be infected by COVID-19, unless the alleged wrongdoer is guilty of significantly negligent and unsafe actions that contributed to the spread of the virus.   When a COVID-19 personal injury lawsuit is brought against an at fault party or bad actor, Ontario judges will be required to interpret the terms of the Act and decide whether the defendant’s actions were grossly negligent, given the circumstances of the case.

If you or a loved one suffered serious symptoms and effects as a result of being infected by Covid-19 and you are considering claiming damages for your losses, talk to a knowledgeable injury lawyer to find out whether you have the legal right to make a claim.