The Government of Ontario is stepping in to shield certain entities from civil liability arising from COVID-19. On November 20, 2020, the province passed the Supporting Ontario’s Recovery and Municipal Elections Act, 2020 (the “Act”).
The legislation offers liability protection to any legal entity or person that makes a “good faith effort” to act in accordance with public health guidelines or applicable laws regarding COVID-19. “Good faith effort” is defined in the Act as an “honest effort, irrespective of whether or not that effort is reasonable”. Unsurprisingly though, the Act does not protect anyone found to be grossly negligent or operating in contravention of the law.
The idea behind the Act is to thwart fears of civil lawsuits as a result of COVID-19 exposure in order to promote economic activity that will help the province get back on its feet. The Act’s protection is retroactive to March 17, 2020, the date that Ontario declared a state of emergency.
Although these protections are broad, the lawmakers purposely carved out exceptions that are important for condo corporations.
First, the Act’s protections do not apply to infections or exposures that occurred while some or all of an entity’s operations were required to be closed. This means, for example, that if a condo corporation were to re-open its gyms or pools in contravention of the Reopening Ontario Act and someone contracted COVID-19, the condo corporation would lose its legal protection afforded by the Act.
Second, the Act does not protect against claims brought by employees for COVID-19 exposure that occurred during the course of employment. Workers or their survivors who wish to file a workers’ compensation claim under the Workplace Safety Insurance Act are also exempt from the Act’s applicability. As a result, condo corporations that are not covered by WSIB insurance must continue to be vigilant about providing personal protective equipment, ensuring adequate physical distancing, and adhering to other public health guidelines. Nothing in the Act affects the civil immunity afforded to employers that are enrolled in the no-fault WSIB insurance regime, however.
As the pandemic continues, it is critical that condo corporations work with their legal counsel to keep up to date with the rapidly changing public health guidelines and legislation regarding COVID-19.
