Government Protection From COVID-Related Liability—Three Critical Concerns

Ontario is proposing to protect from COVID-related liability any individual that made good faith efforts to act in accordance with public health guidance in Supporting Ontario's Recovery Act, 2020, which had its first reading on October 20, 2020.  If passed, this Act will immunize from liability anyone following public health directives in good faith and will extinguish nearly all causes of action against those individuals arising from COVID-19 exposure.  Where gross negligence or an employer-employee relationship is involved, a resulting cause of action will not be barred by this Act.

The Act raises three important legal and practical issues.  First, the Act defines good faith to include honest effort but expressly excludes from the inquiry whether those efforts were reasonable or not.  Without the objective reasonableness criterion, by what measure is the honest or good faith effort to be determined?  On a purely subjective basis?  Were that the case, there