Ontario proposes COVID-19 liability protection for those who made ‘good faith effort’ to follow law

Lawyer says legislation will shield nursing homes from negligence claims

Ontario proposes COVID-19 liability protection for those who made ‘good faith effort’ to follow law
Melissa Miller and Lad Kucis

As lawyers prepare negligence, breach of contract and other claims – including class actions – against long-term care homes for the COVID-19 spread in their facilities, the Ontario Government has proposed legislation to protect from liability those people and organizations who make a “good faith” effort to prevent exposure to the virus.

Bill 218, Supporting Ontario's Recovery Act, 2020 is currently before the Legislature, in second reading. The Ontario Government said the Act protects from liability workers and organizations in healthcare, retail, charities and non-profits, as well as coaches, volunteers and minor sports associations “that make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19.”

While the legislation could change by the time it is passed, its current form would create a statutory defence for many potential negligence claims, says Lad Kucis, a certified specialist in health law who acts for health professionals and health sector organizations, including retirement homes and long-term care homes. The legislation protects those who show a “good faith effort” which “includes an honest effort, whether or not that effort was reasonable,” he says.

“So it's not an extremely high bar that is set in terms of what constitutes a good faith effort,” says Kucis, who is partner at Gardiner Roberts LLP, in Toronto.

The good-faith-effort standard is “extremely problematic, ambiguous language,” says Melissa Miller, certified specialist in elder law whose practice focuses on nursing home negligence cases.

“That could not be more subjective,” says Miller, who is a partner at Howie, Sacks and Henry LLP. “It invites just about any excuse out there for an owner and operator of a nursing home to get off scot free.”

Miller adds that the Act goes against Premier Doug Ford’s comments that he would hold long-term care homes accountable for the high level of COVID-19 deaths in their facilities.

“He says he's going to hold negligent homes accountable. But this piece of legislation holds these homes to a lower standard. Quite frankly, they're going to get away with their negligent behaviour because the only way a plaintiff can be successful in a lawsuit is to prove that they were grossly negligent. So regular negligence is apparently not good enough,” she says.

Earlier this week, Ford said he had been “hammering the people that have been negligent in long-term care” and had “been on these guys like an 800-pound gorilla.”

Attorney General of Ontario Doug Downey told Law Times that the purpose of the legislation is to ensure people and organizations in Ontario are engaging with the community during Ontario’s recovery.

“We talked to a cross-section in Ontario, different stakeholders. And we heard from everything from sports, to agriculture, to college and university sectors. We heard very broadly that people were nervous, and that they were hesitant to engage in their communities. And we need them to engage in their communities,” says Downey.

Downey says the bill is “very targeted” at “those who are on the front lines,” to ensure they get enhanced civil litigation protection from the inadvertent transmission of COVID-19. The protection does not extend to those who have demonstrated intentional misconduct or gross negligence.

“What the bill doesn't do, is it doesn't get into some areas like failure to provide necessities of life, or unlawful confinement, or assault or battery, or fraudulent misrepresentation, or deliberate failure to meet standards of care, says Downey.

“Those bad actors who meet those standards are still in jeopardy. And in terms of good faith and honest effort in taking public health advice, good faith is a term of art. It's something that has been tested in the courts in different contexts. So it gives some guidance through previous court decisions. And ultimately, it's going to be the judge who decides whether a particular fact scenario applies or doesn't apply.”

The legislation will apply retroactively, to March 17.

“The fact that it applies going back to March 17, with the intention of wiping out existing lawsuits is also problematic because these lawsuits were started based on a body of law that existed at the time,” she says. “And what our government is doing is actually inviting long-term care homes and retirement homes – while we're in the middle of a second wave – to not uphold the highest standard of care, to the most vulnerable members of our population.”

For Kucis’ clients in retirement homes and long-term care homes, he says the legislation will not change the applicable laws and policies  

“I don't think it'll change anything in terms of how those organizations operate. But it's good to know that, if this does come into effect that, if you're trying to abide by all laws and policies, that you will get protection from liability,” he says.

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