Ontario introduces a Bill to create a shield from COVID-19 liability

COVID-19 has had an unprecedented impact on both people and businesses across Ontario and beyond. In the wake of growing tension over numerous COVID-19 infections and continuously changing public health standards and guidelines, the Ontario government introduced Bill 218 to provide liability protection to individuals and entities from COVID-19 infections and exposures.

Bill 218 was introduced on October 20, 2020, by the Honourable Doug Downey, Attorney General of Ontario. This Bill will enact the Supporting Ontario’s Recovery Act, 2020, and amend the Municipal Elections Act, 1996 to eliminate the Ranked Ballot elections framework.

Who is Protected?

If enacted, Bill 218 will apply to persons, which includes any individual, corporation or other entity, as well as the Crown in right of Ontario. Please note that this includes not only health care organizations, but restaurants and non-profit entities such as dance companies and sports clubs as well.

What Liability Protection Does This Bill Provide?

Under section 2 of the Supporting Ontario’s Recovery Act, 2020, no causes of action can be brought against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to COVID-19 on or after March 17, 2020, if:

  • The person acted, or made a good faith effort to act, in accordance with applicable public health guidance on COVID-19, and any federal, provincial or municipal laws related to COVID-19; and
  • The act or omission of the person does NOT constitute gross negligence

This is true regardless of any conflict or inconsistency in any applicable public health guidance or laws. Any proceeding commenced before or on the day the Bill comes into force will be deemed to have been dismissed, without costs, on the day the Act comes into force.

A few key points to keep in mind:

  • A “good faith effort” is defined in Bill 218 to include any honest effort, whether or not that effort is reasonable.
  • “Public health guidance” is defined broadly under the Act to include advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communications, and can be provided by a range of government actors, such as the Chief Medical Officer of Health, or an officer or employee of a Government Agency, whether of Ontario or Canada.

Exclusions from Liability Protection

As mentioned above, the protection does not extend to acts or omission that constitute gross negligence.

If enacted, the Bill will exclude from its liability protection the acts or omissions of persons whose operations, or an aspect of their operations, were required by law to close (i.e., non-essential businesses ordered closed).

It will also exclude causes of actions or proceedings with respect to:

  • Workers employed by a Schedule 1 or Schedule 2 employer as defined under the Workplace Safety and Insurance Act, 1997, or the worker’s survivor, in respect of a personal injury by accident arising out of and in the course of the worker’s employment, or which the Workplace Safety and Insurance Board or Schedule 2 employer is subrogated under section 30 of the Workplace Safety and Insurance Act, 1997
  • Actual or potential exposure to, or infection with, COVID-19 that occurred in the course, or as a result, of employment or in the performance of work for or supply of service to a person

Status

As of October 27, 2020, Bill 218 has been ordered referred to the Standing Committee on Justice Policy. We will continue to monitor its status as it progresses through the Ontario Legislature.

Authored by Ellen Xu (exu@ddohealthlaw.com) of DDO Health Law.

Health Law Update

Bills

See our separate post on Bill 218, which if passed will offer liability protection against COVID-19 claims:

https://ddohealthlaw.com/ontario-introduces-a-bill-to-create-a-shield-from-covid-19-liability/

Regulations

  1. Amendment of Regulation O. Reg. 329/04 (General) under the Personal Health Information Protection Act, 2004 (PHIPA)

The proposed amendment to O. Reg. 329/04 (General) under PHIPA would name the Ministry of Children, Community and Social Services (MCCSS) as a prescribed ministry for purposes of section 46 of PHIPA.

This would provide the minister of MCCSS with the power to direct custodians to disclose personal health information for purposes of determining, providing, monitoring or verifying payment relating to programs it funds.

Currently, MCCSS funds custodians to provide programs for health care delivery and those custodians have no clear authority to disclose to MCCSS the personal health information needed for MCCSS to assess whether programs it funds are successful. This amendment would allow for MCCSS to collect personal health information in order to make better evidence-based allocation decisions.

Comment Due Date: Dec 30, 2020

More informationhttps://www.ontariocanada.com/registry/view.do?postingId=34987&language=en

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Opportunity – Corporate/Commercial Lawyer (5-8 years)

DDO Health Law and INQ Data Law have an exciting opportunity for a corporate/commercial lawyer with 5-8 years of experience. We are a boutique law firm located in Toronto, focused on health and data law.

All our lawyers are currently working remotely; consequently, candidates for this position need not be located in Toronto or surrounding areas.

Job Description for Corporate/Commercial Lawyer

The Corporate/Commercial Lawyer must be:

  • Someone who inspires confidence in others
  • Someone who takes pride in his or her work quality (conveys a polished, thoughtful image)
  • A flexible team player who works well with others
  • Able to organize his or her own work to respond to a multiplicity of demands in a very busy area while appropriately prioritizing work activities
  • Able to work independently with minimal direct supervision

The ideal candidate is someone with 5-8 years of experience in practicing law. As we work with health care organizations in the broader public sector every day, experience with BPS procurement and Ontario heath privacy legislation is preferred but not required.

The Corporate/Commercial Lawyer’s responsibilities include but are not limited to:

  • Advising clients on commercial law issues including (but not limited to):
  • Review and drafting of requests for proposals and related agreements
  • Review and drafting of procurement contracts
  • Advice on proper procurement processes, including the Broader Public Sector Procurement Directive, Canadian Free Trade Agreement, and Canada-European Union Comprehensive Economic and Trade Agreement
  • Drafting of services agreements between non-profit parties
  • Drafting of alliance arrangements between non-profit parties
  • Advising clients on corporate law issues including (but not limited to):
  • Restructuring (mergers, amalgamations, changes to incorporating documents)
  • Incorporations
  • Governance
  • Board education/training
  • By-laws
  • Board advice, Board meeting support
  • AGM support
  • Advising clients on privacy issues

Non-billable work:

  • Writing blogs, articles, newsletters and updates for clients and external publications
  • Organizing and participating in firm conferences, podcasts, videos
  • Participating in social media efforts such as LinkedIn and other platforms
  • Training clients
  • Assisting with Request for Proposal submissions and other client development activities
  • Mentoring students and junior lawyers
  • Administrative tasks

Remuneration:

  • Salary depends on seniority and expertise. There is a base salary and eligibility for a bonus after the billable target is reached.
  • Law Society fees and insurance premiums and membership in the Canadian Bar Association/Ontario Bar Association
  • Annual budget for conferences, educational events, memberships and reference materials

Contact: Please express your interest by sending a cover letter and CV to: Mallory Sofianos, Office Manager, c/o msofianos@ddohealthlaw.com.

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Comments Due Date: Nov 20, 2020

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