Doug Downey is sworn into his new role as Ontario’s Attorney General at Queen’s Park in Toronto on Thursday, June 20, 2019. A new bill in Ontario could make it harder for consumers to sue a business that was involved in the transmission of COVID-19, lawyers say. THE CANADIAN PRESS/ Tijana Martin

Doug Downey is sworn into his new role as Ontario’s Attorney General at Queen’s Park in Toronto on Thursday, June 20, 2019. A new bill in Ontario could make it harder for consumers to sue a business that was involved in the transmission of COVID-19, lawyers say. THE CANADIAN PRESS/ Tijana Martin

Law to shield businesses that spread COVID-19 could benefit insurers, limit consumers

The new law comes amid concerns of the ability of businesses to keep people safe

A new bill in Ontario could make it harder for consumers to sue a business that was involved in the transmission of COVID-19, lawyers say.

Bill 218, which Ontario Attorney General Doug Downey has dubbed the Supporting Ontario’s Recovery Act, proposes protecting people from legal action if they made a “good faith effort” to stop the spread of COVID-19 after March 17.

When introducing the bill, Downey highlighted potential protections for “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.”

The biggest impact will be on the long-term care industry, notes Mohsen Seddigh, a lawyer at Sotos LLP. But the bill also has the potential to “wipe out” claims from patrons at other businesses, he said.

The new law comes amid concerns of the ability of businesses to keep people safe. An Ipsos poll released on Wednesday suggested that only 35 per cent of respondents agreed that businesses are making an effort to ensure health and safety guidelines are followed.

That’s down from 69 per cent of consumers who saw businesses making an effort in May, according to the online poll of 2,000 Canadian adults between Aug. 28 and Sept. 5. The polling industry’s professional body, the Marketing Research and Intelligence Association, says online surveys cannot be assigned a margin of error because they do not randomly sample the population.

Kris Bonn, the president-elect of the Ontario Trial Lawyers Association, said he understands the government faces a difficult task: to help businesses that have lost money during the COVID-19 pandemic, while balancing the rights of ill people and grieving families.

But while Downey said the bill will still allow people to take legal action against “bad actors,” Bonn said the wording of the bill may have unintended consequences. Customers or families infected with COVID-19 at a place of business might find it harder to get money for their losses.

For one, the bill sets a higher bar that businesses must breach before a customer could successfully sue. The standard, called gross negligence, is usually applied in situations where someone is injured in a fall due to a municipality’s failure to maintain a sidewalk, said Bonn.

How a judge will interpret this high standard in the context of a contact tracing, wearing masks or cleaning during a pandemic is open to question. Bonn said he’s hopeful that a judge will view deviations from well-publicized health guidelines as grossly negligent.

But since it’s harder for a lawyer to win a gross negligence case, Bonn said the new law could mean that plaintiffs will be on the hook for legal fees and spend two or three years in court, or wait for another legal precedent before they know how their lawsuit measures up.

Proving gross negligence also requires a lot of evidence about what the business did to prevent the spread of COVID-19, Bonn said. Unlike a crack on a sidewalk, customers may not be able to see that clearly without investing significant resources in doing legal discovery. For example, a business may have had previous warnings or incidents, but the consumer wouldn’t know.

“We do have some concerns that (the bill) may go too far,” said Bonn of the bill.

While the bill seeks to protect frontline workers, Seddigh said it may be insurance companies that ultimately benefit. Seddigh said that as a lawyer, if a business owner sought counsel because an employee passed COVID-19 to a customer, his first question would be, “What’s your insurance?”

While an individual employee could be named in a civil lawsuit for negligence, lawsuits are expensive. Seddigh said that most cases that move forward are ones where the target has money to pay the victim, such as a business with insurance.

“The flip side of it is, if someone comes to me on the other side and says, ‘I lost my parent, my grandfather, or my loved one, or I myself got gravely hurt’ as a result of what can only be negligent conduct, my advice is going to be: ‘Look, this bill is going to make it very, very difficult to advance those claims and to get any level of justice,’” said Seddigh.

Another issue with the bill, said Seddigh, is the wording. The bill requires businesses and workers to follow public health guidelines with a “good faith effort,” defined as “an honest effort, whether or not that effort is reasonable.”

Seddigh said that wording is much less clear than a similar law in British Columbia. There, a ministerial order specifies that a person must at least “reasonably believe” they were complying.

“In law, every word has to have some meaning. But here, it’s honestly not defined. We don’t know what (good faith effort) is here,” said Seddigh.

Anita Balakrishnan, The Canadian Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Coronavirusinsurance

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A woman wearing a face mask to curb the spread of COVID-19 uses walking sticks while walking up a hill, in New Westminster, B.C., on Sunday, November 29, 2020. THE CANADIAN PRESS/Darryl Dyck
Interior Health reports 83 more COVID-19 infections overnight

46 cases are now associated with a COVID-19 community cluster in Revelstoke

Castlegar City Councilors Dan Rye and Sue Heaton-Sherstibitoff at Winterfest 2019. Photo: Betsy Kline
Join the Castlegar Making Spirits Bright challenge

Go all out with your Christmas decorating and send us a photo to enter

Glacier Gymnastics head coach Sandra Long says she doesn’t understand why her sport is currently shut down while others are allowed to operate. Photo: Tyler Harper
‘It is bewildering’: Nelson sports leaders call out provincial shut down

Indoor group classes for activities such as gymnastics and dance are on hold

Slocan Valley communities struggling with the need for high-speed internet should consider Kaslo’s model, according to the Kaslo infoNet Society. Photo: Black Press
Follow Kaslo’s lead for fibre service, says proponent

Tim Ryan of Kaslo infoNet Society says bringing high-speed internet to rural homes is possible

A tongue-in-cheek message about wearing a face mask to curb the spread of COVID-19 on a sign outside a church near Royal Columbia Hospital, in New Westminster, B.C., on Sunday, Nov. 29, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C.’s COVID-19 infection count climbs back up to 656

20 more people in hospital, active cases still rising

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Interior Health said its new toll-free line will help people connect to health-care services. (File)
Interior Health expands toll-free line to improve access to community care

By calling1-800-707-8550, people can be connected to several health-care services

THE CANADIAN PRESS/Nathan Denette
B.C. researchers launch study to test kids, young adults for COVID-19 antibodies

Kids and youth can often be asymptomatic carriers of the novel coronavirus

A sign is seen this past summer outside the Yunesit’in Government office west of Williams Lake reminding visitors and members to stay safe amid the COVID-19 pandemic. (Rebecca Dyok photo)
B.C. First Nation leaders await privacy commissioner decision on COVID-19 information

Release of life-saving data cannot wait, says coalition of First Nations

MLA Jennifer Whiteside is B.C.’s new minister of education. She is speaking out against Chilliwack school trustee Barry Neufeld and asking him to resign. (Black Press)
New education minister calls on Chilliwack trustee to resign

Whiteside echoes former minister’s promise to look at options to remove Barry Neufeld

Peter Beckett. ~ File photo
Supreme Court of Canada to decide if it will hear appeal in 2010 wife murder trial

Peter Beckett has stood trial twice for murder in connection with the death of his wife, Laura Letts-Beckett

Most Read