Good Faith Immunity: A Real Concern for those Seeking Justice or a Necessity?

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Written By: Dale Orlando and Endrita Isaj, Student-at-Law

The fallout from the COVID-19 pandemic has created a public reckoning with how institutions, such as long term care homes, have handled or rather, mishandled the response to the virus. With families looking to the civil courts to seek redress for the deaths of their loved ones, the Ontario government is considering putting in measures to restrict some of these impending lawsuits.

Premier Doug Ford announced on June 17, 2020, that the provincial government was considering an immunity provision that would protect organizations and people, which would include health-care providers, from being sued if they spread COVID-19 while acting in good faith on the job.[1] This move also coincided with the re-opening of non-essential businesses, and the legislation will likely apply to shield companies from lawsuits if their staff inadvertently infect customers or other workers.

The Ontario government is following in the footsteps of British Columbia, one of the first provinces to issue a ministerial order in April 2020 to protect individuals that provide essential services from liability from damages relating to the infection or exposure to COVID-19.[2] It is not a complete indemnification against liability, as the order does not apply to persons who were grossly negligent while providing essential services.

The move for good faith immunity has been met with criticism from individuals that have lost loved ones to COVID-19, from members of the Provincial Parliament, and from the legal community. Those that have lost loved ones have expressed anger and disappointment at these good faith immunity measures. Individuals impacted say that immunity reduces their family members’ deaths to numbers and statistics, rather than allowing health care providers and long-term care home operators to be held responsible for falling below the standard of care.[3] Many of these families have resorted to civil lawsuits and class actions that allege negligence on the part of the government and long-term care homes, but it remains to be seen how this immunity will impact the progression of these cases.

On the other hand, key figures in the long-term care home industry, such as Donna Duncan, CEO of the Ontario Long-Term Care Association, state that good faith immunity is necessary for the vitality and continued operation of Ontario’s long-term care homes. Duncan states that without immunity, insurance companies would no longer insure these homes, and long-term care homes would not be able to operate.[4] The pending legislation showcases how it affects stakeholders in various ways, with the balance resting between those seeking justice and those that have provided needed services during this pandemic.

As we await in the coming weeks for greater details from the government on good faith immunity for individuals, organizations, and the private sector, it will undoubtedly bring to light the long term consequences of this pandemic to our families, communities, healthcare systems, and businesses.

If you have any questions about these incoming changes to Ontario’s laws and how it may affect your claim for nursing home negligence, please do not hesitate to contact the experienced personal injury lawyers at McLeish Orlando LLP.

 

[1] Mike Crawley, “Ontario considers ‘good faith’ immunity from COVID-19 lawsuits,” June 17. 2020, https://www.cbc.ca/news/canada/toronto/ontario-covid-19-lawsuits-civil-immunity-1.5614365.

[2] Province of British Columbia, Order of the Minister of Public Safety and Solicitor General, Ministerial Order No. M094, https://www.bclaws.ca/civix/document/id/oic/oic_cur/m094_2020.

[3] Kenyon Wallace and Mary Ormsby, “They died in seniors homes gripped by COVID-19. Now Doug Ford may close a key avenue their mourners have for justice,” June 17, 2020, https://www.thestar.com/news/gta/2020/06/17/they-died-in-seniors-homes-gripped-by-covid-19-now-doug-ford-may-close-a-key-avenue-their-mourners-have-for-justice.html.

[4] Mike Crawley, “Ontario considers ‘good faith’ immunity from COVID-19 lawsuits,” June 17. 2020, https://www.cbc.ca/news/canada/toronto/ontario-covid-19-lawsuits-civil-immunity-1.5614365.

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