On November 17, 2020, the Ontario government passed a law conferring liability protection for businesses for COVID-19 issues, at least in part.
The new Supporting Ontario’s Recovery and Municipal Elections Act, 2020 may apply to any business concerned about liability if a customer or client is exposed or contracts COVID-19.
However, employers are NOT protected from claims from employees.
The legislation reads:
- 2 (1) 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 coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act 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 (COVID-19) that applied to the person, and
- (ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
- (b) the act or omission of the person does not constitute gross negligence.
- (a) at the relevant time, the person acted or made a good faith effort to act in accordance with,
In other words:
- A business cannot be sued because its customer, client, etc gets COVID-19;
- To enjoy the liability protection, the employer must have acted in “good faith” (even if not reasonable or objectively right) and not done something or fail to do something that amounts to “gross negligence” (not just everyday negligence, but really really really bad negligence);
- This covers the time period since March 17, 2020 (St. Patrick’s Day)
- The “good faith” acts are legit even if the public health guidance and laws at all 3 levels of government were inconsistent and kinda all over the map during 2020 (which they were)
BUT……….
Sub-section 4(2) of the legislation promulgates that the above section 2 liability protection does NOT apply to a cause of action brought by your team in their course of employment, including:
- a worker
- a worker’s survivor
- an individual in the “performance of work” or “supply of services”, which would include independent contractors and freelancers.
So, effectively, an employer is not protected from claims by employees, contractors or freelancers related to “occupational disease” in the course of the worker’s employment or related to an occupational disease.
The specific workplaces impacted are those that are Schedule 1 and Schedule 2 employers under the Ontario workers’ compensation regime.
The new legislation does specifically declare that the Workplace Safety and Insurance Act and the usual workers’ compensation regime will continue to apply, but this act may permit employees to proceed on two fronts (workers’ compensation and civil), although sub-section 4(4) does state that any conflict between the two will default to the workers’ compensation law.
What Does This Mean?
Although the legislation is generally favourable to businesses in the CKL, the big carve out around employee claims means employers will likely continue to face the exposure of any potential COVID-19 related issues.
What do businesses do?
- Always act in good faith
- Stay informed of and strictly adhere to federal, provincial and municipal-level health-related directives, recommendations and advice
- Limit exposure as much as possible in the workplace
