As COVID-19 restrictions lessen and more businesses begin to reopen in Ontario, it remains unclear whether they will be shielded from liability for spreading COVID-19 while carrying on their operations, whether from suits by the public or their employees. On June 16th, Ontario Premier Doug Ford announced that his cabinet would consider legislation that would provide immunity from COVID-19 civil litigation to businesses and other organizations, but Ontario has yet to provide any further information at the time of posting.
The British Columbia example
While we await a decision from the cabinet and potential legislation in Ontario, British Columbia has already acted, providing an example of how Ontario might set up its limitation of liability.
On April 2, 2020, BC issued a Ministerial Order immediately extending a limitation of liability until BC ends its state of emergency. The order applies to businesses who operate or provide an essential service. These businesses must be providing or operating an essential service in accordance with all applicable emergency and public health guidance or reasonably believe that they were doing so, though they remain liable for acts of gross negligence.
Businesses to whom the limitation of liability applies include those in the following sectors, among others:
- Health services
- Hospitals, secondary and long-term care, blood/plasma services, medical professionals, pharmaceutical producers and medical supply and equipment manufacturers, wholesalers, distributors and stores;
- Critical infrastructure
- Transportation, electricity, water, oil and gas and essential goods manufacturing;
- Food and agriculture services
- Food production, processing, manufacturing, storage and distribution, farming supply and grocery, pet, convenience, cannabis and liquor stores;
- Transportation
- Supply chain services, cargo transportation and related services, delivery services;
- Sanitation
- Cleaning services, manufacturers of sanitary products, environment management, monitoring and cleanup and waste disposal;
- Communications and information technology
- IT and communications infrastructure, newspapers, television, and radio, cable and telecommunications provides and data centres;
- Non-health essential service providers
- Banks, credit unions, capital markets, schools and post-secondary institutions (for providing remote learning and certain essential services), accounting, restaurants and other facilities that prepare and serve food, construction and maintenance, forestry and mining.
- Banks, credit unions, capital markets, schools and post-secondary institutions (for providing remote learning and certain essential services), accounting, restaurants and other facilities that prepare and serve food, construction and maintenance, forestry and mining.
If Ontario does enact a COVID-19 limitation of liability, we expect that it would bear some similarity to the BC Ministerial Order, including limiting applicability to essential services businesses (which could differ in Ontario) and excluding acts gross negligence or recklessness. Additionally, businesses may be required to comply with Ontario’s sector-specific Covid-19 guidelines. Whether Ontario would grant retroactive application of the limitation of liability, barring claims since COVID-19 appeared in Ontario, is unknown.
