Occupiers Liability for COVID-19 Exposure: A Difficult Claim to Make

September 2021 marks the 1.5-year mark since the start of the COVID-19 Pandemic. The impact that COVID-19 has had around the world has been nothing short of unprecedented. The world has pivoted in ways we never imagined possible in such a short time.

The health risks associated with COVID-19 exposure have shifted the norm in how industry, government and society as a whole conduct themselves.

Pre-pandemic, the occupiers of private property had always been under a statutory obligation under section 3 of the Occupiers Liability Act to ensure that people entering on their premises were reasonably safe while on the premises. This duty extended not only to dangers brought on by the condition of the premises, but the activities carried out on the premises.

In the pre-pandemic world, occupiers of private property would often defend civil claims brought against them for trips, slips and falls, and other injuries caused by their failure to keep their premises reasonably safe. For example, failure to salt, or clear snow and ice were common. Other claims would relate to insufficient lighting, loose handrails, uneven stairs or other issues of that nature – but contracting a coronavirus? That was not something on anyone’s radar.

But now, things have changed. Property owners should consider themselves warned. Local, Provincial and Federal Public Health guidelines and mandates are unequivocal in the risks that COVID-19 poses. These directives set out measures and protocols that are expected to be followed to reduce the spread of COVID-19.

As we see vaccinations ramping up, restrictions lifting, and vaccine passport systems being put in place (with some exceptions), it is incumbent on property owners to exercise due diligence in ensuring that they put in place and implement reasonable safety measures for COVID-19, (as they would for the cleaning and maintenance of their property).

There have been recent reports of COVID-19 exposure linked to a wedding venue in Vaughan (see article). These types of reports will likely increase as the variant strain continues to evolve. In light of reopenings, it may be a matter of time before further COVID-19 exposure is seen wherever people gather in large numbers including concert halls, theatres, sports arenas and nightclubs to name a few examples.

As the weather gets colder and more people move indoors, the risks may increase. This raises the question of what liability would occupiers face if their premises were linked with a COVID-19 outbreak where those exposed suffered serious injury or death?

On November 20, 2020, Bill 218 – Supporting Ontario’s Recovery Act (the “Act”) received Royal Assent.

Section 2 of this Act specifically prevents a civil claim for liability against persons as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person if:

  (a)  at the relevant time, the person acted or made a good faith effort to act in accordance with,

         (i)  public health guidance relating to coronavirus (COVID-19) that applied to the person, and

        (ii)  any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and

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

The Act goes on to define “good faith effort” to include an honest effort, whether or not that effort is reasonable.

Firstly, for liability to be triggered against occupiers from COVID-19 exposure on their premises, the conduct must be more than just negligent, it must be “gross negligence”. Secondly, the effort taken by the premise owner DOES NOT NEED TO BE REASONABLE, only honest. In my view, these criteria set a very, very high bar for a finding of liability.

For example, premises who fail to implement proper vaccination policies, and also fail to screen vaccine passports, fail to enforce masking, contact tracing, social distancing, but thoroughly sanitize high touch surfaces, and offer a bottle of sanitizer at the front entrance may result in a violation of the Act, in my view. However, only time will tell once cases start making their way through the court system.

There are some exceptions to the Act in section 3 which prevent application of section 2 (above) for those acts or omissions that occurred when a law required the person’s operations to close, in whole or in part and relate to an aspect of the person’s operations that was required to close under the law.

Section 4 of the Act carves out further exemptions to its applicability for employees or workers injured in the course of employment to pursue a claim, which can include potential exposure to or infection with COVID-19.

However, for most others who cannot dodge the onerous obstacles of the Act including patrons of businesses looking for a change of scenery after months of cabin fever, it is important to be mindful of the risks and hurdles faced pursuing a civil claim for COVID-19 exposure against a property owner who made an “honest effort” to act in accordance with all public health guidelines and legislation – even if such efforts were unreasonable.

Written by

Lawson is the founding lawyer of Hennick Law.

He received his Bachelor of Science degree in Biology from York University, and then attended University of Ottawa’s Faculty of Law graduating with a Bachelor of Laws degree in 2009 before being called to the Ontario Bar in 2010.

Lawson articled with a boutique litigation firm where he gained experience in a variety of practice areas including representing Indian Residential School survivors to obtain compensation through the Independent Assessment Process for sexual and physical harms suffered.

Since his call to the bar, Lawson has devoted his legal practice exclusively to the area of personal injury law before starting his own firm and regularly acts for clients on injury claims including motor vehicle accidents, slip and falls, product liability and dog bite cases. He regularly appears before the Superior Court of Justice and has also appeared before the Financial Services Commission of Ontario (FSCO) and License Appeal Tribunal.