On October 20, 2020, the Ontario government introduced proposed legislation that would shield businesses, organizations, volunteers, and workers from liability arising out of COVID-19-related claims in certain circumstances where they acted in good faith to follow applicable laws and public health guidance.
If enacted, the Supporting Ontario’s Recovery Act, 2020 (the “Act”) would generally protect people and organizations from being legally liable if they did something or failed to do something on or after March 17, 2020 which directly or indirectly caused another person to be infected with, potentially infected with, or exposed to COVID-19 so long as:
- the person or organization made a “good faith effort” to act in accordance with applicable laws and public health guidance related to COVID-19; and
- the person or organization was not grossly negligent.
The Act defines “good faith effort” as including “an honest effort, whether or not that effort is reasonable”.
However, the Act contains an important exception under which persons and organizations could still be legally liable where an individual was exposed to, potentially exposed to, or infected with COVID-19 in the course of, or as a result of their employment with, or while performing work for or providing services to, the person or organization.
Further, the Act would not prevent employees from obtaining workers compensation through the Workplace Safety and Insurance Board (“WSIB”) where they are otherwise entitled to it because they contracted COVID-19 in the workplace. Crucially, where an employee is entitled to workers compensation because they contracted COVID-19 in the workplace, they would generally be statute-barred from taking legal action against their employer pursuant to the Workplace Safety and Insurance Act, 1997. However, the Act is clear that employees in workplaces without WSIB coverage will still have a right to sue their employers if their employment causes them to be infected with COVID-19, as employees without WSIB coverage generally can when they are injured in the course of their work.
Finally, the Act would also not protect persons and organizations from liability in relation to COVID-19 where an individual is exposed to or infected with COVID-19 as a result of an operation of the person or organization that was legally required to be closed.
Although the Act has yet to be enacted into law, its introduction is positive news for employers concerned about incurring liability in relation to COVID-19 as Ontario faces the second wave of the pandemic. However, employers should understand that in its current form the Act would not protect them from all liability where they cause members of the public to become infected due to the exceptions noted above. Employers should also be mindful of the fact that the Act would not protect employers from liability where workers are exposed to or infected with COVID-19 in the workplace. Accordingly, even if the Act is passed into law, it will still be crucial for employers to strictly adhere to applicable laws and public health guidance related to COVID-19 and to clearly document the steps that they take to do so in order to mitigate exposures in respect of COVID-19.
We will continue monitoring the progression of developments related to the Act and post further updates as they become available to keep you In the Know.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.