Why Are We Protecting Negligent Businesses?

by Kris Bonn
Legal files such a those pertaining to the proposed Bill 218

Last week the Ontario government introduced legislation that would unfairly protect negligent businesses that fail to take proper measures to protect people from Covid-19. Bill 218, dubiously named, Supporting Ontario’s Recovery Act, will protect long-term care homes where thousands of Ontarians died or became very ill from Covid-19. A copy of the bill can be reviewed here.

Will Bill 218 help negligent businesses avoid legitimate legal actions?

Currently, civil law requires that a plaintiff must prove that a person or business breached the expected standard of care of a reasonable person or business before any liability can be found. This is an objective test. If a person or business takes reasonable steps to protect the public and its residents (for long-term care homes), then even if someone contracts Covid-19, the person or business will not be held liable.

That being the case, why do we need Bill 218?

The reason is simple – the long-term care homes did not act reasonably and are vulnerable to legitimate legal actions by family members of those who died. Bill 218 proposes to protect a person and/or business 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 coronavirus (COVID-19) that applied to the person, and
    2. any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
  2. the act or omission of the person does not constitute gross negligence.

The definition of “good faith effort” written in the Bill, states that a good faith effort includes an honest effort, whether or not that effort is reasonable.

This definition is very problematic to the rule of law in Ontario.

When acting in good faith isn't enough.

We expect people and businesses to act reasonably. In fact, that is the bedrock principle of negligence law in Ontario and across Canada. We hold people and businesses responsible when they don’t act reasonably and people get hurt or die. The proposed Bill 218 takes away the accountability of these negligent business. As the law is currently written, injured victims or their families will need to provide proof that a defendant acted maliciously or with intent to injury in order to surpass this high threshold. This could not be the intent of the government – to protect negligent, for-profit long-term care homes from answering to the families where residents died due to negligence.

Amendments to the proposed Bill 218 are necessary to ensure justice.

I support the need to protect small businesses and individuals who acted reasonably in following public health guidelines to protect the public. But Bill 218 will have the unintended consequences of protecting large, corporately owned profit-making long-term care homes for their negligence. The government should include in the proposed legislation an exception to ensure that long-term care homes and retirement homes where elderly vulnerable people negligently contracted Covid-19 are held accountable by law. This is only fair to those families who lost loved ones.