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

No face-offs until at least Dec. 8 after the BCHL shuts down pre-sesason play. (Citizen file)
Cowichan Capitals’ exhibition season cut short

BCHL cancels remainder of the pre-season

Gracie couldn’t stop nursing from her previous owner’s goats which was problematic given the goats were trying to be dried out to breed. Gracie now lives at A Home for Hooves. (Sarah Simpson/Citizen)
Cowichan animal sanctuary gets international accreditation

A Home for Hooves farm sanctuary accredited by the Global Federation of Animal Sanctuaries

The field at Sherman Road is closed to travelling teams after soccer is shut down due to COVID-19. (Sarah Simpson/Citizen)
Soccer in Cowichan put on hold due to COVID-19

“We have a temporary clarification that we can’t travel to other communities”

B.C. Health Minister Adrian Dix and provincial health officer Dr. Bonnie Henry update the COVID-19 situation at the B.C. legislature, Nov. 23, 2020. (B.C. government)
B.C. sets another COVID-19 record with 887 new cases

Another 13 deaths, ties the highest three days ago

Police in Nanaimo are looking for a suspect who wore a black-and-white striped hoodie and rode a yellow mountain bike when he allegedly stole three children’s backpacks from a daycare facility. (Photo submitted)
VIDEO: Thief steals children’s backpacks from daycare in Nanaimo

Suspect rode a yellow mountain bike and made off with backpacks hanging on fence

Arthur Topham has been sentenced to one month of house arrest and three years of probation after breaching the terms of his probation. Topham was convicted of promoting hate against Jewish people in 2015. (Photo submitted)
Quesnel man convicted for anti-Semitic website sentenced to house arrest for probation breach

Arthur Topham was convicted of breaching probation following his 2017 sentence for promoting hatred

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

Langley School District's board office. (Langley Advance Times files)
‘Sick Out’ aims to pressure B.C. schools over masks, class sizes

Parents from Langley and Surrey are worried about COVID safety in classrooms

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

The Klahoose First Nation village on Cortes Island is under lockdown until further notice due to a positive COVID-19 test. Photo courtesy Kevin Peacey.
Cortes Island First Nation community locked down due to positive COVID-19 test

Klahoose First Nation has had one positive test, one other potential case

Ladysmith’s 1st Avenue will be lit up until January 15. (Cole Schisler photo)
Light Up parade a no-go, but Ladysmith’s streets are still all aglow

Although the tradition Light Up this year was cancelled, folks can still enjoy the holiday lights

The baby boy born to Gillian and Dave McIntosh of Abbotsford was released from hospital on Wednesday (Nov. 25) while Gillian continues to fight for her life after being diagnosed with COVID-19.
B.C. mom with COVID-19 still fighting for life while newborn baby now at home

Son was delivered Nov. 10 while Gillian McIntosh was in an induced coma

Most Read