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

Delta North MLA Ravi Kahlon was sworn in as minister of minister of jobs, economic recovery and innovation by B.C. Lt.-Gov. Janet Austin and Premier John Horgan during a virtual ceremony on Thursday, Nov. 26, 2020. (Province of BC/YouTube screen shot)
BREAKING: Kahlon named minister of jobs, economic recovery and innovation

Kahlon was sworn in by Lt.-Gov. Janet Austin during a virtual ceremony on Thursday, Nov. 26

Surrey city Councillor Brenda Locke. (File photo)
Brenda Locke trying to breathe life into Surrey’s defunct Public Safety Committee

Surrey councillor’s motion will be up for debate at a future council meeting

The Festival of Lights; Jingle Bell White Rock; and the Lighted Boat Parade all helped light up the White Rock waterfront on Saturday, Dec. 7. (Aaron Hinks photo)
White Rock Festival of Lights postponed

While event founder remains optimistic, the future of this year’s display is uncertain

RCMP logo
Keen-eyed neighbour’s call to police helps stop South Surrey burglary in progress

Mounties were on the way before suspects triggered home alarm

The City of Delta is receiving $77,250 from Natural Resources Canada’s Zero-Emission Vehicle Infrastructure Program for the installation of 20 electric vehicle charging stations at public facilities in the community, like this one outside the new North Delta Centre for the Arts. (James Smith photo)
Delta to receive $77K for more electric vehicle charging stations

The federal funding will help expand Delta’s network of public charging stations by 20 in 2021

A man wearing a face mask to help curb the spread of COVID-19 walks in downtown Vancouver, B.C., Sunday, Nov. 22, 2020. The use of masks is mandatory in indoor public and retail spaces in the province. THE CANADIAN PRESS/Darryl Dyck
B.C. records deadliest day of pandemic with 13 deaths, 738 new COVID-19 cases

Number of people in hospital is nearing 300, while total cases near 30,000

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.
Abbotsford mom with COVID-19 still fighting for life while newborn baby comes home

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

B.C. Premier John Horgan, a Star Trek fan, can’t resist a Vulcan salute as he takes the oath of office for a second term in Victoria, Nov. 26, 2020. (B.C. government)
Horgan names 20-member cabinet with same pandemic team

New faces in education, finance, economic recovery

A new ‘soft reporting’ room is opening inside the Ann Davis Transition Society offices on Dec. 1, 2020 which is thought to be the first of its kind in B.C. (Ann Davis Transitional Society/ Facebook)
New ‘trauma-informed’ reporting room opening next week in Chilliwack

It’s a space for reporting domestic violence, sexual assault, or gender-based violence to police

The corporate headquarters of Pfizer Canada are seen in Montreal, Monday, Nov. 9, 2020. The chief medical adviser at Health Canada says Pfizer’s COVID-19 vaccine could be approved in Canada next month. THE CANADIAN PRESS/Ryan Remiorz
Health Canada expects first COVID-19 vaccine to be approved next month

Canada has a purchase deal to buy at least 20 million doses of Pfizer’s vaccine,

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 online poster for Joel Goddard, who left his Willoughby home Nov. 10, 2020, has been updated by his family and friends who received word that he’s been found.
Langley man missing since Nov. 10 found alive and safe in Abbotsford

Family of the Willoughby area man had been searching for days. Police find him at Abbotsford Airport

A UBC study recommends an multi-government investment of $381 million to protect 102 species at risk in the Fraser River estuary. (Photo supplied by Yuri Choufour)
102 Fraser River estuary species at risk of extinction, researchers warn

UBC team develops $381-million strategy to combat crisis, boost economy

FILE – A paramedic holds a test tube containing a blood sample during an antibody testing program at the Hollymore Ambulance Hub, in Birmingham, England, on Friday, June 5, 2020. (Simon Dawson/Pool via AP)
Want to know if you’ve had COVID-19? LifeLabs is offering an antibody test

Test costs $75 and is available in B.C. and Ontario

Most Read