Robins Appleby

COVID-19 Litigation – SUPPORTING ONTARIO’S RECOVERY ACT, 2020

Darrell Gold and Samuel Mosonyi

My last two articles have been about the CERS program which provides a subsidy to commercial tenants, as well as Bill 229 which is now law, which provides a commercial tenant with protection (until a date to be determined) from eviction and distraint by its landlord for rent default.

In addition to that legislation, on November 20, 2020 Bill 218 received Royal Assent and is now in force[1] and statutorily bars causes of action (subject to certain exceptions discussed below) by a “person” arising from infection by or exposure to COVID-19. This is important to most workers/employers and for the purpose of this article, those in the Real Estate industry be it landlord, property manager, tenant, real estate broker or agent.

The Purpose for the Act

According to the Ontario parliamentary debates (the Hon. Doug Downey – Attorney General), the Act is intended to afford protection from lawsuits to “thousands of Ontario workers, employers, volunteers, non-profits and other organizations who make an honest effort to follow public health advice, follow public health guidance and law as Ontario responds to the COVID-19 pandemic” and who by doing so, “…risk significant liability in the event of transmission to third parties”.

Loss of Right to Sue for Exposure to or Infection with COVID-19

The prohibition on causes of action applies where the exposure or infection arose on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if:

  1. at the relevant time, the person acted or made a good faith effort to act in accordance with,
  1. public health guidance relating to COVID-19 that applied to the person, and
  2. any federal, provincial or municipal law relating to COVID-19 that applied to the person; and

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

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