New Ford government legislation could protect long-term care homes, province from COVID-19 lawsuits

New legislation on COVID-19 liability The Attorney General tabled new legislation, that would shield the government and public health officials from expensive lawsuits.

TORONTO — Ontario's Progressive Conservative government has introduced new legislation that could potentially shield itself, as well as long-term care homes, from COVID-19-related lawsuits, as long as the parties acted in "good faith" during the pandemic.

Attorney General Doug Downey tabled the "Supporting Ontario's Recovery Act," which would introduce a new test for Ontario judges to consider before allowing a COVID-19 civil suit to proceed: whether an "honest effort" was made to follow public health guidelines and laws related to the pandemic.

"We're saying if you're a personal support worker and you're working on the front lines and you've done things with an honest belief and a good faith that you have the protection from the government," Downey told CTV News Toronto.

While the new legislation would protect front line workers from physicians to grocery store clerks, it would also place a legal iron ring around long-term care homes -- some of which are currently facing class action lawsuits.

The government also confirmed to CTV News Toronto that the provincial government, municipalities, public health officials and politicians would be potentially shielded from litigation -- dating back to Mar. 17 when the government enacted a state of emergency.

"You allege that I do something, and my defense is I honestly did it in good faith, I listened to public health advice, I implemented the public health advice and something inadvertently happened -- that's my defense and that should be a valid defense," Downey said.

Rocco Achampong, a prominent Toronto lawyer, said the government has made it "harder for the ordinary citizen to seek redress in courts" and said he was surprised by the government legislation.

"There has to be some concern in the bureaucracy that liability could be attracted by some of the advice being given or some of the action being taken, and in anticipation of that they may be protecting themselves," Achampong told CTV News Toronto.

The retroactive nature of the legislation could have an impact on existing class-action lawsuits on behalf of residents and families in long-term care.

One lawsuit in particular, launched by Rochon Genova, accuses 96 long-term care homes as well as the Ford government of negligence during the pandemic.

"The government of Ontario and the defendant owners and operators of long-term care homes ignored numerous red flags and failed to adopt timely and reasonable infection prevention and control measures to avoid exposing the elderly to the risk of infection with COVID-19," the lawsuit claims.

Downey said the legislation wouldn't automatically reject such lawsuits because it "doesn't protect bad actors."

"This doesn't protect people who aren't following the rules, it doesn't protect against gross negligence," Downey said, adding it would be for the courts to decide who is a bad actor and who was acting in good faith.

Achampong points out, however, that by requiring challengers to prove that gross negligence has taken place, the government has set the bar high enough to prevent litigation from proceeding.

"It would be more difficult for a litigant to get redress from the government."