On June 17, 2020, the Government of Ontario indicated an intention to join the list of jurisdictions that have enacted legislation protecting businesses from lawsuits related to the COVID-19 pandemic. The government has been short on specifics as to what sectors of the economy might be covered by such legislation, and how it might affect lawsuits that have already been commenced in Ontario.
A number of jurisdictions in the U.S. and Canada have already enacted or introduced similar legislation. At the outset of the pandemic, a number of U.S. states signed executive orders granting various degrees of limited immunity to liability for health care providers and facilities, while a smaller number of states enacted legislation to similar effect.
In British Columbia, a far broader immunity was granted by an Ministerial Order that came into effect on April 2, 2020. It provides immunity from damages resulting from infection or exposure to COVID-19 in connection with operating or providing an “essential service” in cases where the business was carrying on in accordance with all provincial emergency and public health guidelines, and was otherwise not grossly negligent. “Essential service” is broadly defined by way of an 8-page schedule listing a wide variety of businesses that have remained open throughout the pandemic, including health care providers, first responders, caregivers for children and adults, vulnerable population service providers, food and agricultural service providers, essential retail such as grocery stores, pet and livestock suppliers and liquor and cannabis stores, among many others. On June 10, 2020, a further Ministerial Order came into force granting certain British Columbia sporting organizations immunity to COVID-19 related lawsuits.
Legislation granting similarly broad immunity has also passed in North Carolina, Oklahoma, Utah and Wyoming, and a number of other states are in the process of considering enacting similar legislation.
As of June 7, 2020, at least 19 proposed class action lawsuits were underway in Canada related to COVID-19, many of which are directed against long-term care facilities (“LTC”s). A large proportion of the pandemic’s fatalities in Canada have been linked to LTCs. There are compelling arguments on both sides of the issue as to whether the granting of such broad immunity is good public policy. Industry advocates note that without liability protection, it may become impossible for certain sectors of the economy to obtain insurance coverage, potentially resulting in that sector ceasing to operate. At the same time, a grant of immunity in these circumstances may actually create a terrible precedent by making the decisions of good corporate citizens appear foolish in retrospect. The example of LTCs is instructive. It may well be determined that some LTC companies created unsafe environments by cutting corners on resident safety measures, while others saved lives by spending more in those areas. By granting immunity to the entire sector, the law effectively places the companies that made bad choices from the perspective of their residents’ welfare on the same level as those who made good choices, cementing the competitive advantage the former companies sought by cutting corners in the first place. The Ontario government will be seeking to balance these interests as it considers the scope and degree of the immunity to be granted.
The executive orders granting immunity to service providers in British Columbia are unprecedented in the breadth and scope of their terms. If Ontario determines to follow the precedent set by British Columbia, the implications for Ontario businesses, insurers, employers, employees and consumers could be far-reaching. We will be keeping close watch on these developments as they emerge.
