Ontario to provide COVID-19 liability protection to businesses, workers and some organizations

Legislation will protect those who take 'honest measures' to follow public health guidelines

CBC.ca
October 21, 2020

Ontario will provide liability protection to some workers, businesses and non-profits against COVID-19 exposure-related lawsuits.

Attorney General Doug Downey introduced the new bill Tuesday at the provincial legislature.

Downey said the bill, if passed, would ensure anyone making an "honest effort" to follow public health guidelines while working or volunteering not be exposed to liability in civil proceedings.

He said the bill will not prevent lawsuits against those who willfully, or through "gross negligence", endanger others.

Ontario considers 'good faith' immunity from COVID-19 lawsuits

Health-care workers and institutions, front-line retail workers, and charities and non-profits would be covered by the bill. The legislation would also cover coaches, volunteers and minor sports associations.

Downey said it is retroactive to March 17, 2020, when Ontario first implemented emergency measures as part of its response to the COVID-19 pandemic.

CBC News first reported in June that Premier Doug Ford and his government were considering drafting such legislation. By then, a number of lawsuits had already been filed against long-term care providers in the province over the deaths of seniors from COVID-19.

Downey said in an interview that the legislation was only tabled Tuesday because the consultation process included a wide range of stakeholders from various sectors of Ontario's economy and health-care system.

"We're at a point where we've heard from stakeholders that they need and want this protection to continue to contribute to their communities. It's not a reaction to anything, it's been building, and now is the time to provide that protection," Downey said.

Long Term Care Association welcomes new bill

Donna Duncan, CEO of the Ontario Long Term Care Association, said in a statement on Tuesday that the legislation is welcome and the association calls on all parties to support it because it would provide protection to "institutions working in good faith on the front lines" in the fight against COVID-19.

"Liability protection is a necessary measure to stabilize and renew Ontario's entire long-term care sector. Without it, many insurance companies will cease coverage, as they have already begun to do, putting homes across the province at risk and jeopardizing their expansion and renewal," Duncan said.

The association represents nearly 70 per cent of Ontario's 630 long-term care homes.

Duncan said there are more than 79,000 people in long-term care homes in Ontario and they deserve safe accommodations. As well, there are 36,000 residents and their families waiting for long-term care right now, and within 14 years, the number of Ontario seniors over 80 is expected to double. 

"We need a strong long-term care sector that can respond to rapidly growing needs positioned to provide high quality and compassionate care," she said.

"It in no way absolves responsibility when it comes to issues of gross negligence. There remains zero tolerance for the abuse and neglect of our seniors and any reckless or irresponsible operator should still be held accountable and will not be protected by this measure."

Duncan also called on the federal government to implement what she called a federal liability "insurance back-stop program," which she said is necessary for long-term care homes that are having difficulty securing or renewing insurance.

COVID-19 has killed 1,907 long-term care residents since the pandemic began. There has been a recent surge of cases in the second wave, with 87 homes currently experiencing outbreaks.

Dozens of homes across the province face numerous lawsuits, including several class-action suits with unproven claims in the hundreds of millions of dollars.

The Insurance Bureau of Canada said it supports the legislation, which it called balanced and responsible.

Steve Kee, a bureau spokesman, said the legislation illustrates the government's support for entrepreneurs and hardworking Ontarians as they focus on getting through the COVID-19 threat.

"Today's legislation is intended to protect the good actors -- those who follow public health guidelines -- from certain civil liability," he said in a statement.

"As tabled, it would not protect bad actors against other legal consequences, including criminal charges."

Personal injury lawyers criticize bill

Stephen Birman, a lawyer at Thomson  Rogers who is involved in a class action suit against LTC homes, said families involved in the legal action are "appalled" by the legislation, adding the Ford government is protecting nursing home operators and their insurers after promising accountability.

"The government didn't wait for the LTC Commission findings before rushing to protect the operators," Birman wrote in an email to CBC News.

"Rest assured, the class claims ... which are focused on the most egregious homes operators and violations of care, will continue," the email reads.

Michael Smitiuch, a personal injury lawyer who represents several families who are suing long-term care homes after losing loved ones to COVID-19, was also critical of the proposed law.

"These changes will help insurance companies save money and will hurt victims and their families," he said.

NDP Leader Andrea Horwath blasted the bill, saying it will shield government and for-profit long-term care homes from accountability.

"More than 1,900 people have died in long-term care during this pandemic, shattering thousands of families. Doug Ford didn't protect them -- but is now protecting the very companies that let them die in horrible conditions," Horwath said in a statement on Tuesday.

"I'm appalled at this move to deny families the justice, accountability and day in court they deserve."

Mike Schreiner, Ontario Green Party leader, said he is concerned about the implications of the legislation for those contemplating suing long-term care homes where residents and staff died of COVID-19.

"Negligent long-term care homes do not deserve a Get out of Jail Free card for the lives that were stolen on their watch," Schreiner said in a statement on Tuesday.

"I need to take the time to read this legislation fully, but I am very concerned about the potential for liability protection for the bad actors."

Schreiner said there is nothing wrong with protection for sports organizations, community clubs and small businesses that inadvertently spread the virus even though they followed protocols.

"But there is a big difference between those acting in good faith and those whose chronic negligence led directly to COVID-19 deaths. Instead of fixing the crisis in nursing homes and guaranteeing better care, the premier is protecting those who were responsible for bad care."

B.C. passed similar order this spring

British Columbia similarly passed a cabinet order this spring saying any person or corporation "providing an essential service" is not liable for damages resulting from COVID-19 infections.

The list of B.C. essential service providers granted immunity extends from front-line health workers to long-term care facilities and grocery stores. However, immunity does not apply in all circumstances. Someone could still be found liable in cases of gross negligence or for failing to follow public health guidance.