Many individuals found themselves feeling helpless, anxious, or angry as the COVID-19 pandemic unfolded. As information developed, work, commercial, and care environments changed. Some people may have found themselves asking: is it possible to hold individuals, businesses, or institutions accountable for decisions they made, or failed to make, during that time?
On its face, the answer is likely not. This is because the Ontario government put in place legislation that protects against this kind of litigation.
However, it does remain possible to launch a COVID-19-related lawsuit in Ontario, if you are able to make it over a few key hurdles.
The government legislation created in 2020 in response to the COVID-19 pandemic was the Supporting Ontario’s Recovery Act (“SORA” or “Act”). This Act prohibits almost all COVID-19-related litigation, even retroactively.
What is “COVID-19 related litigation”?
For the Act, it means any lawsuit based on an individual being or potentially being infected with or exposed to COVID-19 on or after March 17, 2020, due to the actions or omissions of another.
The Act protects individuals, corporations, or other entities, and the Ontario government from liability in these kinds of cases, if they meet certain requirements. First, they made an honest effort to comply with public health guidance and government laws and regulations, and second, they were not grossly negligent.
What are the key hurdles one must overcome to launch this type of lawsuit?
Even though the protection afforded by the Act is broad, there are three ways in which a lawsuit can proceed.
In your lawsuit, it is necessary to claim at least one of the following of the potential defendant:
- They failed to act or make a good faith effort to act in accordance with public health guidance relating to coronavirus;
- They failed to act or make a good faith effort to act in accordance with any government law relating to coronavirus; or
- They made an act or omission which was grossly negligent.
Given the wording of the legislation, having failed to act in accordance with public health guidance and/or government laws is not enough to hold someone legally accountable. Even if they were going against these, if they were making a good faith effort to do so, that is sufficient to protect them from litigation.
So what are “good faith” and “gross negligence”?
The definition of “good faith” set out in the Act includes an honest effort, whether or not that effort is reasonable. This means that a defendant is not required to have adhered perfectly to guidelines, laws, and regulations. A defendant is not even required to have acted reasonably in their attempt at adherence. They must have only acted honestly in their effort to do so. This definition aims to take into account the uncertainty and ad hoc conditions created by the pandemic.
In contrast, “gross negligence” is not defined by the Act. This is unfortunate, as the exact definition of gross negligence has long eluded the legal community. The most relied upon definition of “gross negligence” in Canadian common law was provided by Chief Justice Duff in McCulloch v. Murray, 1942 CanLII 44 (SCC),  SCR 141. Oddly enough, the decision begins by explaining that it is not the duty of the court to provide a definition or paraphrase the meaning of “gross negligence”. However, the Chief Justice went on to write that gross negligence implies conduct in which there is a very marked departure from the standards by which responsible and competent people would habitually govern themselves.
What are my chances of success in being allowed to commence such a lawsuit?
As was probably intended, the Act has made it extremely difficult for potential plaintiffs to bring forward COVID-related lawsuits. Until very recently, there were no court decisions that even referenced the Act.
Gross negligence and honest efforts will both be questions of fact which will be decided based on the evidence at trial. However, the Act bars even the commencement of lawsuits where there is not a lack of honest effort or gross negligence. So how does one get around that when you are not provided the opportunity to prove it?
In order to make it past the beginning stages of a COVID-related lawsuit, one must simply claim that these elements are present in the Statement of Claim. Justice Belobaba’s recent certification of a class action in Robertson v. Ontario, 2022 ONSC 5127 demonstrates that mere claims can push an action past the starting gates.
This class action was launched against the Province of Ontario for its failure to protect thousands of elderly residents in provincially regulated long-term care homes from serious illness or death in the first 6 weeks of the pandemic.
The class action explicitly claims bad faith and gross negligence. As the burden of proof at certification is much lower than at trial, however, it remains to be seen whether the Plaintiff will be successful or not in proving those claims.
Takeaways on COVID-19-related litigation
It is possible to launch a COVID-19-related litigation if a defendant failed to act or make a good faith effort to act in accordance with public health guidance or with any government law relating to coronavirus or made an act or omission which was grossly negligent.
Keep in mind, while you must state this in your claim to be allowed to commence, you must also be able to prove it once it moves to trial.
Questions? Our litigation team is here to help.