COVID-19 Update: Government of Ontario Introduces Liability Protection Under Bill 218

| 4 minutes

On October 20, 2020, the Government of Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (“Bill 218”). According to the Government, the purpose of Bill 218 is to provide liability protection for workers, volunteers, businesses and organizations that make “honest” and “good faith” efforts to follow public health guidelines and laws relating to COVID-19.

Proposed Protections

If passed in its current form, Bill 218 will statutorily bar claims arising from COVID-19 infections and exposures that occurred on or after March 17, 2020, so long as the individual or organization made a “good faith effort” to act in accordance with the law and public health guidance relating to COVID-19.[1]

As drafted, “good faith effort” is defined to include an honest effort, whether or not the effort is reasonable. Further, “public health guidance” is defined as advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication, by any of the following:

  • the Chief Medical Officer of Health appointed under the Health Protection and Promotion Act, an Associate Chief Medical Officer of Health appointed under the Health Protection and Promotion Act or the Office of the Chief Medical Officer of Health;

  • a person appointed as a medical officer of health or associate medical officer of health of a board of health under the Health Protection and Promotion Act, or an employee of a board of health;

  • a public health official of the Government of Canada;

  • a minister or ministry of the Government of Ontario or Canada, or an officer or employee in such a ministry;

  • an agency of the Government of Ontario or Canada or an officer or employee in such an agency;

  • a municipality or an officer or employee of a municipality; or

  • a regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body.[2]

In its current form, Bill 218 will provide retroactive relief to March 17, 2020 (i.e. the day Ontario declared a state of emergency). As a result, any proceeding commenced after March 17, 2020, and before Bill 218 comes into force, will be deemed to be dismissed without costs.

Proposed Exemptions

Bill 218 seeks to maintain the right of Ontarians to take legal action against those who willfully, or with gross negligence endanger others. Further, as drafted, the liability protection afforded under Bill 218 would not apply to:

  • infections or exposures that occurred while a business was required, by law, to be closed; and

  • causes of actions which relate to exposure or infection of a worker or employee that occurred in the course of employment.[3]

Conclusion

Bill 218 was carried through its Second Reading on October 27, 2020. If passed, Bill 218 would provide favourable protections to organizations operating during the pandemic. Organizations should continue to monitor and implement COVID-19 guidance from all levels of government and public health authorities.

We are continuing to monitor Bill 218 as it progresses through Ontario’s Legislative Assembly. Watch our COVID-19 Recovery Hub and our McCarthy Tétrault Employer Advisor Blog for further updates. In the interim, if you are an employer and have any questions about Bill 218 or other COVID-19 workplace matters, please contact any member of our National Labour & Employment Group.

[1] Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020, schedule 1.

[2] Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020, s. 1(1).

[3] Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020, s. 4(2).

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