Proposed legislation that would provide a level of protection from COVID-19-related lawsuits was likely designed to, in part, help businesses, many of which have been struggling during the pandemic, say litigation lawyers.
“I’ve had some clients approach me with some concerns about reopening their doors because of this very issue,” said Barriston Law lawyer Josh Valler, who does a lot of work in the area of employment law.
While many businesses are doing their best to provide goods and services following public health guidelines to keep their customers and staff safe, the spectre of direct impact by COVID-19 and the pandemic remains real.
Valler said there's concern about what is considered to be enough to be free of liability. He and his colleagues have been consulting with businesses on how they can limit their exposure to liability during reopening.
Attorney General Doug Downey, who is also the MPP for Barrie-Springwater-Oro-Medonte, introduced the Supporting Ontario's Recovery Act, 2020 this week that will protect individuals and organizations “that make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19” if it is passed.
According to the provincial government, it’s intended to balance the rights of Ontarians to sue those demonstrating gross negligence or are endangering people.
“The proposed legislation would ensure Ontarians, who are contributing to the recovery of our province and make good-faith efforts to follow public health guidance and laws on COVID-19, are not discouraged from making a difference in their communities because they are afraid of civil liability,” Downey said in a release.
“This legislation… I think it draws a very good line in the sand,” said Valler. “It protects employers and businesses who are acting in good faith; it gives them that peace of mind that they can open their doors in a reasonable manner following all the health protocols.
“If they’re following that, they’re acting reasonably, they won’t necessarily be held liable.”
Although just how “acting reasonably” will be interpreted will be up to the courts to decide. Issues such as whether the necessary protocols were in place and if those protocols were being followed and communicated to employees and customers could be examined.
And although the proposed legislation may not limit litigation, Valler believes it addresses a very big concern expressed by local businesses.
One client, he adds, opted not to reopen partially for fear of potential liability down the road.
The intention is to clearly provide some assurances to businesses, says Barrie civil litigation lawyer Scott Hawryliw.
“I think the idea is … they're trying to prop up businesses that might otherwise fail,” said Hawryliw, who works with individuals and small businesses.
He points to recent reports indicating that some businesses, such as long-term care homes, are facing increasing fees for liability insurance that could be prohibitive. Some protection may well be deemed to be necessary to keep these businesses operating, Hawryliw added.
“Without this (protection), things look night and day different from the insurer’s point of view,” he said. “If this is in place, this carves out a lot of that risk.”
And insurance is based on risk. Hawryliw suspects the proposed legislation will reduce the risk for long-term care homes as well as other businesses, such as gyms, bars and banquet halls, and have a direct impact on actuarial tables, used to determine the cost of insurance.
But just where the protection through “good faith” effort ends with this legislation and liability begins is open to some interpretation, said Hawryliw.
In its news release, the government suggests “targeted” protection will be provided to health-care workers and institutions, front-line workers who serve the public, businesses and their employees, charities, non-profit organizations, coaches, volunteers and minor sports associations.
Darryl Singer expects that, if passed, the new law won’t impact the two class-actions he has launched against three Ontario nursing homes.
What it does do, he says, is change the standard of proof.
Singer, head of the commercial and civil litigation practice at Diamond and Diamond Lawyers LLP, will be asking a court to certify class-actions against against Sienna Senior Living Inc. — owners of Owen Hill Care Community in Barrie and Bradford Valley Care Community in Bradford West Gwillimbury — as well as Revera Inc. and Villa Colombo retirement facilities, on behalf of family members of residents who have died as a result of COVID-19.
The new law changes the standard of proof from mere negligence to gross negligence through good-faith efforts to take precautions against the spread of COVID-19 in the homes.
“I don’t believe it will affect my class-actions,” he said, suggesting that the homes involved his class-actions do not meet the good-faith standards that include following public health guidelines. “The way my claims are framed is that there is a pattern of systemic negligence in terms of understaffing, failure to have an emergency plan, failure to have a sufficient stockpile of PPE (personal protective equipment) and other things that they were required to do…. That has nothing to do with COVID.”
In a business dealing with society's most medically fragile population, he argues, nursing homes should be prepared to deal with issues such as the spread of influenza and airborne diseases and he suggests they weren’t and failed to protect people.
Barriston’s Valler, along with Janice Leroux of HR Performance & Results, will be hosting a webinar through the Sandbox Centre on Nov. 5, on the impacts of COVID-19 on employment-related issues.