The COVID Legal Landscape

Published date21 April 2021
Subject MatterLitigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Trials & Appeals & Compensation, Professional Negligence, Operational Impacts and Strategy
Law FirmRogers Partners LLP
AuthorMs Athina Ionita

The COVID-19 pandemic has brought with it a wave of legal claims. The Ontario government has attempted to protect those subject to this wave of litigation and return some stability to the litigation landscape with the passing of Supporting Ontario's Recovery Act, 2020,1 ("the Act") which came into force on November 20, 2020.

Section 2 of the Act prohibits causes of action 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 the person acted, or made a good faith effort to act, in accordance with public health guidance and laws relating to COVID-19, and if the act or omission does not constitute gross negligence.

The term "good faith effort" is defined in section 1 of the Act and "includes an honest effort, whether or not that effort is reasonable".

The legislation is retroactive and therefore applies to actions commenced prior to the statute's coming into force date (subsections 2(5) and 2(6)).

There are a number of exceptions under the Act, one of which is that there is no protection for "gross negligence". Further, certain causes of action arising from employment are exempt from protection (subsection 4(2)).

In sum, the legislation protects entities from legal actions based on COVID-19 infections where the entities made good faith efforts to comply with public health guidelines and were not grossly negligent.

Gross Negligence

"Gross negligence" is not defined in the Act, but there is legal authority on what it may constitute. The standard of "gross negligence", in the context of municipal liability, has been interpreted by the Supreme Court of Canada to mean "very great negligence".2

The Supreme Court has also described "gross negligence" as being conduct in which there is a very marked departure from the conduct of a reasonable person.3

The Ontario Court of Appeal has held that gross negligence does not require proof of misconduct that is wilful, wanton or flagrant. The Court held that, to a great extent, the determination of gross negligence depends of the facts of each case and is interpreted through the prism of common sense.4

Although the term "gross negligence" has defied precise definition, it is difficult to prove. There has to be more than a mere breach of duty. The breach must be of high magnitude.5

Public Health Guidance

The legislation protects those who...

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