The Ontario legal system has undergone many changes to keep the public safe during COVID-19 – but what happens when an individual or business fails to follow its lead? For instance, can personal injury claimants bring a claim against a business if they are exposed to or contract COVID-19? Put another way, will a business be found liable for failing to protect their customers from COVID-19 if they inadvertently expose them to the disease?
Enter Supporting Ontario’s Recovery Act, 2020, S.O. 2020, c. 26 (the “Act”), which came into force in November of 2020 and is retroactive to March 17, 2020. This legislation limits the ability of personal injury claimants to sue others after being exposed to or contracting COVID-19 in certain circumstances. Given these new rules, prospective claimants who have been exposed to or contracted COVID-19 should consult with a skilled personal injury lawyer who can interpret the legislation and determine whether it applies to their unique circumstances.
What Supporting Ontario’s Recovery Act Says About COVID-19 Liability Protection
The Act applies to individuals, corporations, and “other entities”. Section 2 of the Act – the real “meat” of the legislation – reads as follows:
Protection from liability
2 (1) 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 coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person 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 coronavirus (COVID-19) that applied to the person, and
(ii) any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
(b) the act or omission of the person does not constitute gross negligence.
According to the section above, personal injury claimants cannot sue an individual or corporation for exposure to or contraction of COVID-19 if, at the relevant time, that individual or corporation was making a good faith effort to follow public health guidance and federal, provincial, or municipal laws and did not commit “gross negligence”. The Act also applies to an individual or corporation who is vicariously liable for the acts or omissions of another individual or corporation. For example, a parent who might otherwise be vicariously liable for the actions of their child would not be vicariously liable for their child exposing an individual to COVID-19, assuming the child was not legally responsible under s. 2 of the Act.
There are some exceptions to the liability protection in the Act. For instance, if a business was continuing to operate contrary to a lockdown order or other public health measures, they will not be shielded from liability if they exposed or infected others with COVID-19. Furthermore, employees will not be able to sue their employers if they are exposed to or contract COVID-19 in the course of their employment – instead, their complaint will be dealt with through the Workplace Safety and Insurance Board.
The Act does not provide a definition of “gross negligence”– we will have to wait to see how the courts interpret the meaning of this phrase in the context of the legislation.
What Supporting Ontario’s Recovery Act Means for Personal Injury Claimants and Defendants
The best thing individuals and businesses can do to minimize their risk (both as personal injury claimants and as defendants) is to not only stay up to date on public health measures, advice, and laws but to follow them! Bear in mind that the rules that apply to you can vary significantly depending on your Public Health Unit region and they continue to evolve and change over time. For more information on the current public health measures and advice in your Public Health Unit region, visit the following link on the Government of Ontario website.
If despite your best efforts to minimize risk, you think you have been negligently exposed – or exposed others – to COVID-19, you should immediately speak with an experienced personal injury lawyer. As of March 8th, 2021, the courts have not released any decisions discussing the Act and its implications. We also do not know how the courts will interpret the meaning of “gross negligence” as it applies to this Act. A skilled personal injury lawyer will be in the best position to consider the potential success of your case and help you navigate through this uncertainty.
Skilled Personal Injury Lawyers Serving Eastern Ontario and North Bay
At Tierney Stauffer LLP, our experienced personal injury lawyers believe in fighting for your rights. Whether you have contracted COVID-19 due to the negligence of an individual or business or suffered other loss or damage, we can provide you with the information you need to move forward and, if you have a case against an individual or business, the fearless legal representation you need to obtain the best possible resolution.
We recognize that no two claims are the same, which is why we give each client the personalized attention needed to bring about the best possible resolution. Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.