Government Protection from COVID-Related Liability—Three Critical Concerns

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Written By: Joseph A. Cescon and Ryan Marinacci, Student-at-Law

Government Protection from COVID-Related Liability | McLeish Orlando

Ontario is proposing to protect from COVID-related liability any individual that made good faith efforts to act in accordance with public health guidance in Supporting Ontario’s Recovery Act, 2020, which had its first reading on October 20, 2020.  If passed, this Act will immunize from liability anyone following public health directives in good faith and will extinguish nearly all causes of action against those individuals arising from COVID-19 exposure.  Where gross negligence or an employer-employee relationship is involved, a resulting cause of action will not be barred by this Act.

The Act raises three important legal and practical issues.  First, the Act defines good faith to include honest effort but expressly excludes from the inquiry whether those efforts were reasonable or not.  Without the objective reasonableness criterion, by what measure is the honest or good faith effort to be determined?  On a purely subjective basis?  Were that the case, there would in effect never be grounds to challenge the assertion of honest effort.  This is because that effort would be entirely dependent on the individual, untethered from any form of limiting objective characteristic.

This strikes at the very core of negligence law, which has long been founded on the principle of reasonableness.  Quoting from Glasgow Corporation v Muir et al, [1943] AC 448, Court of Appeal for Ontario in Arland v Taylor wrote:

The standard of foresight of the reasonable man is, in one sense, an impersonal test.  It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.

By contrast, the bar on actions in the Act is premised on the very “idiosyncrasies of the particular person whose conduct is in question” because the effort need only be honest regardless of whether it was also reasonable.  This means that individuals wronged by others who acted unreasonably in relation to COVID exposure will have no recourse so long as honest efforts were made to follow public health guidance.

Second, the definition of “public health guidance” is virtually unlimited.  It includes advice, recommendations, directives, guidance, or instructions given or made in respect of public health regardless of the form or manner of communication.

That is to say, honest efforts need not even be made in relation to the government’s own published directives, but can be made in relation to practically any form of communication.  Worse still, the list of government actors who can communicate this guidance includes any federal or provincial government agency or employee of that agency, and any municipality or employee of the municipality.

As a result, individuals could be protected from liability where they purport to have honestly followed the instructions of one of the countless employees of any number of municipalities or government agencies.  And all this regardless of whether the effort in issue was reasonable.

Finally, in barring causes of action arising from COVID, the Act may run afoul of s. 15 of the Charter for discriminating on the basis of physical disability.  The Act is facially neutral because it bars all COVID-related actions.  However, it will have an adverse impact on those individuals who are left permanently disabled as result of having COVID.  This is because the Act will preclude these individuals from suing wrongdoers in order to obtain damages that may be necessary to cover the cost of their future medical care needs.

A majority of the Supreme Court of Canada in Fraser v Canada recently clarified that

if claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact…

Here, it will not be the permanent disabilities resulting from COVID that will cause a disproportionate impact.  Rather, it will be the bar on suing for damages that will have a disproportionate impact on those individuals rendered permanently disabled by COVID.  And for that reason, the Act may well be found to unjustifiably infringe s. 15 of the Charter.

The Act is still in its early stages and may never receive Royal Assent.  However, much remains to be seen as to what unfolds if and when the government decides to protect individuals from COVID-related liability.

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