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Bulletin

Health Sector Impacts of Bill 218: Liability Exclusion for COVID-19?

Fasken
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Overview

Health Bulletin

On October 20, 2020, Attorney General Doug Downey introduced Bill 218(PDF), Supporting Ontario's Recovery and Municipal Elections Act, 2010 (Bill) which will enact the Supporting Ontario's Recovery Act, 2020 respecting certain proceedings relating to the coronavirus (COVID-19). The impacts of the proposed legislation are far from clear.

Scope of Liability Protection

If passed, the legislation will provide that no cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to COVID-19 on or after March 17, 2020 as a direct or indirect result of an act or omission if (a) at the relevant time, the person acted or made a good faith effort to act in accordance with (i) public health guidance relating to COVID-19 that applied to the person, and (ii) any federal, provincial or municipal law relating to COVID-19 that applied to the person; and (b) the act or omission of the person does not constitute gross negligence.

Interpretation

The Bill defines "person" as any individual, corporation or other entity, including the Crown in right of Ontario. The Bill also states that "'good faith effort' includes an honest effort, whether or not that effort is reasonable."

In negligence cases, the standard of care for professionals is generally viewed to be that which would be exercised by the reasonably prudent person in like circumstances. The protection in the Bill for those who made a "good faith effort" to comply with "public health guidance" or federal, provincial or municipal laws related to COVID-19, may encompass some people who are found not to have acted reasonably (i.e. fell below the standard of care), so long as they were not "grossly" negligent.

Courts will have to deal with what constitutes a "good faith effort," when that effort is also found to be unreasonable in the circumstances. In negligence law, the standard of care is an objective one – what would the reasonable person do; not whether or not this person thought they were acting reasonably. By removing the requirement of objective reasonableness and replacing it with "good faith effort," one is drawn into the subjective intentions of the alleged wrongdoer.

Further, the Bill provides a very broad definition of "public health guidance". It includes "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:

i.  The Chief Medical Officer of Health appointed under the Health Protection and Promotion Act, an Associate Chief Medical Officer of Health under that Act or the Office of the Chief Medical Officer of Health.

ii.  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.

iii.  A public health official of the Government of Canada.

iv.  A minister or ministry of the Government of Ontario or Canada, or an officer or employee in such a ministry.

v.  An agency of the Government of Ontario or Canada or an officer or employee in such an agency.

vi.  A municipality or an officer or employee of a municipality.

vii.  A regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body.

There will be interesting questions as to whether reliance on any one of these defined individuals or bodies would be sufficient, particularly when guidance from some of them may have differed at given times. Further, it may prove difficult to fix the "public health guidance" at a particular point in time given the shifting scientific, medical and government messaging on the prevention and detection of COVID-19 over the course of the pandemic.

"Gross negligence" is not a Canadian common law concept, but it has been used in statutes dealing with motor vehicle liability, municipal responsibility, and Good Samaritans. Canadian judicial interpretations of gross negligence include "very great negligence," "conscious wrongdoing," and "a very marked departure" from the standard of care required (see Adeco Exploration Company Ltd. v. Hunt Oil Company of Canada Ltd.). The Ontario Court of Appeal has held that "to a great extent, the determination of gross negligence depends on the facts of each case. It depends on the application of a less than precise definition of gross negligence, interpreted through the prism of common sense" (see Crinson v. Toronto (City), citing McNulty v. Brampton (City)).

Further Exceptions to Liability Protection

As stated above, the Bill will only apply to "good faith efforts" and will not shield against liability claims involving gross negligence or intentional misconduct resulting in COVID-19 exposure or infection.

Liability protection will also not extend to those who continue to operate, despite being required by law to close their operations, nor will it shield against claims brought by workers relating to personal injury or COVID-19 exposure or infection that occurs in the course of the person's performance of work.

Section 2(1) of the Bill provides that no "cause of action" arises against any person, provided the conditions set-out in that section are met.  Section 2(4), however, states that "No proceeding that is directly or indirectly based on or related to anything referred to in subsection (1) may be brought or maintained against a person." This raises issues with respect to whether or not the Bill (if passed) will be interpreted to protect regulated health professionals from allegations of professional misconduct (on the basis of failing to maintain the standard of practice of the profession) or incompetence under the Regulated Health Professions Act.

Looking Forward

The Bill will apply retroactively, such that relevant claims arising on or after March 17, 2020, when the Ontario government declared a state of emergency, will be deemed to be dismissed without costs on the day the Act comes into force. Practically speaking, we do not expect that the courts will automatically dismiss any actions upon the Bill coming into force. Rather, we expect that defence counsel will have to bring a motion to have an action dismissed on the basis that the action is prohibited as a result of the Bill. Further, one can expect that plaintiff's counsel will be moving to amend their claims or frame any new claims to assert allegations that the defendants did not make a good faith effort and / or that the conduct at issue does in fact amount to "gross negligence." Whether or not a person made a good faith effort will be a question of fact that will have to be adjudicated. Defendants will have to assert in their statements of defence the material facts which they say support or demonstrate their good faith efforts.

Health care service providers and others should take care to document (or preserve documentation that exists) with respect to their efforts to monitor, interpret and follow "public health guidance" and federal, provincial, and municipal laws related to COVID-19 as they evolved and continue to evolve over the course of the pandemic.

The increased risks associated with delivering healthcare services during the COVID-19 pandemic has complicated access to insurance for many providers. It remains to be seen whether the liability protections contemplated by the Bill will make it easier for providers, such as long-term care facilities, to secure adequate coverage. The retroactive nature of the Bill may also impact ongoing class-action lawsuits alleging negligence on the part of long-term care facilities in their handling of COVID-19 outbreaks, but as indicated above it is more likely that those claims will be amended to allege facts that remove them from the protections afforded by the Bill. Consequently, these suits may not disappear, but they may be more difficult to prove.

Bill 218 passed 2nd reading on October 27, 2020 and was referred to the Standing Committee on Justice Policy.  We will continue to monitor the progress of this Bill, as well as other developments relating to COVID-19 liability protection.

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