Section 2 of the Bill 218 - Supporting Ontario's Recovery and Municipal Election Act, 2020 (“the Act”) provides that no cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if,

(a)  at the relevant time, the person acted or made a good faith

       effort to act in accordance with,

   (i)  public health guidance relating to coronavirus (COVID-19)

         that applied to the person, and

  (ii)  any federal, provincial or municipal law relating to coronavirus

        (COVID-19) that applied to the person; and

(b)  the act or omission of the person does not constitute gross

       negligence.

The purpose of the Act is clear. To offer protection from liability against COVID -19 claims to businesses, employees and individuals that follow the public health guidelines related to COVID – 19, as maybe applicable to them, and they make a “good faith” effort while doing so. The only exception is “gross negligence”.  Thus, unless “gross negligence” could be proven, no lawsuit can be brought or maintained against such businesses or employees or individuals.

The Act applies retroactively to any incidents on or after March 17, 2020.

The following elements must be noted:

  1. Good Faith Effort is defined in the Act and includes an honest effort, whether or not that effort is reasonable; (“effort de bonne foi”).

  2. There should not be an act or omission that could be construed as “gross negligence”. Not so surprisingly, gross negligence is not defined in the Act.

  3. The protection under Section 2 is available to entities, with necessary modifications, with vicarious liability.

  4. The protection is not available if the acts or omissions occurred while a law required the operations be closed.

  5. The Act does not apply to lawsuits brought by the employees against their employers.

EXPLORING GROSS NEGLIGENCE

There is absolutely no doubt that it is a high standard to meet with the test for gross negligence.

In Kingston (City) v. Drennan, 1897, a slip and fall incident, the city bylaws at the time required city to be grossly negligent to be held liable, the Supreme Court of Canada gave the first meaning to the term of Gross Negligence – “Very Great Negligence”.

In McCulloh v. Murray, 1942, Chief Justice Duff C.J., writing for the Supreme Court of Canada, stated:

All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct.

Referring to Fairley & Stevens (1966) Ltd. v. Goldsworthy, 1973, an interesting definition for Gross Negligence is that it is merely ordinary negligence with addition of a “vituperative epithet”. Thus, there is no practical difference between the two terms.

 

The standard test for Gross Negligence is “a very marked departure from the standards”. Thus, if this test is passed, it becomes much easier for the plaintiff to prove “Gross Negligence”. The two other notable phrases considered with gross negligence are “Wilful Misconduct” and “wanton misconduct/disregard”. Once any or all of these could be established in a case, “Gross Negligence” could be easily established.

While there is no doubt, none whatsoever, that this is a much welcomed legislation, however, there will be a lot of interpretations issues when it comes to the application of this Act.

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