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

Highway 20 is now open but conditions are still challenging (Dawson Road Maintenance photo)
Some customers still without power as additional crews brought in to help

Trees continued to fall onto lines even after the actual storm had passed

The exposure occurred on 24th, 25th, & 26th November 2020, and affects Grade 7, 8, 9, 10 (file photo)
COVID-19 case confirmed at Acwsalcta School

The exposure occurred on 24th, 25th, & 26th November 2020, and affects Grade 7, 8, 9, 10.

A convoy of vehicles passes through Heckman Pass on Highway 20 as cleanup operations continued Saturday. Dawson Road Maintenance is asking motorists to watch for crews and equipment working throughout the area. (Dawson Road Maintenance photo/Facebook)
Highway 20 reopens between Anahim Lake and Bella Coola after winter storm Friday

“We appreciate your patience as we continue to clear wood debris and widen sections of the road.”

Bella Coola RCMP are alerting residents that the road between 4 Mile subdivision and downtown will be closed until at least tomorrow. (File image)
Winter storm closes 4 Mile to downtown road in Bella Coola

Police it will remain closed until Saturday, at least

Provincial health officer Dr. Bonnie Henry updates B.C.’s coronavirus situation at the legislature, Nov. 30, 2020. (B.C. government)
Hockey team brought COVID-19 back from Alberta, B.C. doctor says

Dr. Bonnie Henry pleads for out-of-province travel to stop

B.C. Premier John Horgan on a conference call with religious leaders from his B.C. legislature office, Nov. 18, 2020, informing them in-person church services are off until further notice. (B.C. government)
B.C. tourism relief coming soon, Premier John Horgan says

Industry leaders to report on their urgent needs next week

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

An RCMP cruiser looks on as a military search and rescue helicopter winds down near Bridesville, B.C. Tuesday, Dec. 1. Photo courtesy of RCMP Cpl. Jesse O’Donaghey
B.C. Mountie, suspect airlifted by Canadian Armed Forces from ravine after foot chase

Military aircraft were dispatched from Comox, B.C., say RCMP

An 18-year old male southern resident killer whale, J34, is stranded near Sechelt in 2016. A postmortem examination suggests he died from trauma consistent with a vessel strike. (Photo supplied by Paul Cottrell, Fisheries and Oceans Canada)
“We can do better” — humans the leading cause of orca deaths: study

B.C. research reveals multitude of human and environmental threats affecting killer whales

A logo for Netflix on a remote control is seen in Portland, Ore.,Aug. 13, 2020. Experts in taxation and media say a plan announced Monday by the government will ultimately add to the cost of digital services and goods sold by foreign companies. THE CANADIAN PRESS/AP-Jenny Kane
‘Netflix tax’ for digital media likely to raise prices for consumers, experts say

The government says Canadian companies already collect those taxes when they make digital sales

BIG SALMON ranch in Washington State. (Center for Whale Research handout)
Non-profit buys Chinook ranch in hopes of increasing feed for southern resident killer whales

The ranch, which borders both sides of Washington State’s Elwha River, is a hotspot for chinook salmon

Most Read