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 health worker holds a vial of AstraZeneca vaccine to be administered to members of the police at a COVID-19 vaccination center in Mainz, Germany, Thursday, Feb. 25, 2021. (Andreas Arnold/dpa via AP)
43 new COVID-19 cases in Interior Health

368 cases in the region remain active

A sign is seen this past summer outside Yunesit’in Government office west of Williams Lake reminding visitors and members to stay safe amid the COVID-19 pandemic. (Rebecca Dyok photo)
Yunesit’in First Nation completes second round of vaccinations

A total of 26 people have since recovered from COVID-19 after having tested positive

A 100 Mile RCMP officer stands watch at the intersction of Highway 97 and Horse Lake Road. (Patrick Davies photo - 100 Mile Free Press)
Volunteers, police search Highway 97 for articles related to high-speed chase

Search will stretch from Canco Gas Station in Lac La Hache to 150 Mile House.

An aerial photograph captures snowmobile tracks in the Cameron Ridge area earlier this year, which is closed to snowmobilers. The closures are in place to protect sensitive caribou herds. (Conservation Officer Service photo)
Snowmobilers fined for operating in closed caribou habitat near Likely, B.C.

The investigation revealed they had spent several hours in the closure leaving extensive tracks

The RCMP arrest one of the suspects on Highway 97 courtesy of cell phone footage shot by a bystander. (April Thomas photo)
WATCH: Two suspects arrested after multi-jurisdictional chase

A half dozen police cars were seen heading north on Highway 97

Health Minister Adrian Dix looks on as Dr. Bonnie Henry pauses for a moment as she gives her daily media briefing regarding COVID-19 for British Columbia in Victoria, B.C. THE CANADIAN PRESS/Jonathan Hayward
7 additional deaths and 542 new COVID-19 cases in B.C.

Provincial health officials reported 18 new COVID-19 cases linked to variants of concern

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

The City of Vancouver estimates there are 3,500 Canada geese in the city right now, and that number is growing. (Bruce Hogarth)
Help tame Vancouver’s Canada goose population by reporting nests: park officials

The city is asking residents to be on the lookout so staff can remove nests or addle eggs

Chief Justice Christopher Hinkson (Office of the Chief Justice)
Judge questions whether B.C.’s top doctor appreciated right to religious freedom

Lawyer for province says Dr. Henry has outlined the reasons for her orders publicly

A sample of guns seized at the Pacific Highway border crossing from the U.S. into B.C. in 2014. Guns smuggled from the U.S. are used in criminal activity, often associated with drug gangs. (Canada Border Service Agency)
B.C. moves to seize vehicles transporting illegal firearms

Bill bans sale of imitation or BB guns to young people

BC Housing minister David Eby is concerned that Penticton council’s decision to close a local homeless shelter will result in a “tent city” similar to this one in Everett, Wa. (Olivia Vanni / Black Press file)
‘Disappointed and baffled’ B.C. housing minister warns of tent city in Penticton

Penticton council’s decision to close a local homeless shelter could create tent city, says David Eby

A recently published study out of UBC has found a link between life satisfaction levels and overall health. (Pixabay)
Satisfied with life? It’s likely you’re healthier for it: UBC study

UBC psychologists have found those more satisfied with their life have a 26% reduced risk of dying

A vial of some of the first 500,000 of the two million AstraZeneca COVID-19 vaccine doses that Canada has secured through a deal with the Serum Institute of India in partnership with Verity Pharma at a facility in Milton, Ont., on Wednesday, March 3, 2021. THE CANADIAN PRESS/Carlos Osorio - POOL
Federal panel recommends 4-month gap between COVID vaccine doses due to limited supply

The recommendation applies to all COVID-19 vaccines currently approved in Canada

A vial of Oxford-AstraZeneca COVID-19 vaccine is pictured at a family doctor office, Thursday, Feb. 25, 2021 in Paris. THE CANADIAN PRESS/AP -Christophe Ena
Trudeau ‘optimistic’ that timeline for rollout of COVID vaccines can be accelerated

Canada set to receive more than 6M COVID-19 vaccine dose than initially expected, by end of March

Most Read