New Ontario Law: Protecting Businesses From Liability in Ontario
On October 20, 2020, the Government of Ontario introduced the Supporting Ontario’s Recovery and Municipal Elections Act (“Act”) with the intent of protecting individuals from lawsuits arising out of being directly or indirectly infected with or exposed to COVID-19 – in other words, from certain aspects of business liability.
These protections apply if the individual has acted in good faith to follow health guidelines and laws and their actions do not amount to gross negligence. The Act would also amend the Municipal Elections Act to remove the ability for Ontario municipalities to hold municipal elections under a ranked ballot system. Considering the impact on the ability to bring lawsuits and the specific exceptions related to employment, it’s important for employers to be aware of how this Act would impact them.
The Basics of the New Ontario Law: Protecting Businesses From Liability
The Act defines “good faith” as an “honest effort, whether or not that effort is reasonable; (“effort de bonne foi”)”. On the surface, as long as there is a good faith effort to follow public health guidance and Ontario’s laws regarding the COVID-19 pandemic, the individual will be protected from liability and cannot have an action brought against them in court. The Act is retroactive to March 17, 2020, and dismisses any action that would be barred by it without costs that is brought before it comes into force at an undetermined future date.
The Act’s Exceptions Related to Employment
Employers should be aware that one exception states the protection from liability does not apply where a law required a person’s “operations” to partially or fully close or where the action by the person in question is related to “operations” required to close. This is referring to an employer running a business, and it means that if an employer is breaking laws surrounding the full or partial closure of their business, this Act will not protect them. Employers still have an obligation to follow the laws surrounding business closures.
This exception might also be interpreted to apply to claims arising from employees as a result of a business’ partial or full closure. An employer could still be liable for wrongful or constructive dismissal, even if they attempt to use COVID-19 as a defence to the claim in question.
The Act also contains exceptions for actions against an employer with respect to workplace personal injury by accidents, where section 30 of the Workplace Safety and Insurance Act applies and causes of action related to actual or potential exposure to COVID-19 during employment. Additionally, existing proceedings related to these exceptions are unaffected by the Act.
As such, employers still have an obligation to maintain a safe work environment for employees and can still be liable to lawsuits for the failure to uphold these obligations. Considering the exceptions related to the Act, employers should consult with an employment lawyer to ensure they are not opening themselves up to liability for liability.
Related Reading
Vicarious Liability and Employment
Contact Us
If you are an employer and want to know more about how the Supporting Ontario’s Recovery and Municipal Elections Act can impact you or an employee and have questions pertaining to health and safety, our team of experienced legal professionals at Achkar Law can help. Business liability can spell the difference between existing as a business or not.
Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
