Sports and non-profit groups cheer, legal and health experts jeer Covid liability protections

By Sabrina Nanji November 5, 2020

Sparks flew at the justice committee’s public hearings on controversial Bill 218, which shields organizations from Covid-related lawsuits and nixes ranked balloting in civic elections.

Bill 218 raises the threshold for Covid-related lawsuits so that plaintiffs have to prove “gross negligence” instead of simple negligence against a long-term care home, for example.

While Attorney General Doug Downey has said the legislation will protect front-line workers and minor sports league coaches that act in “good faith” to follow public health measures, the Ontario Trial Lawyers Association asked MPPs on the committee to exempt LTC and retirement homes from the bill.

Stephen Birman, a personal injury lawyer at Thomson Rogers, said the higher standard of “gross negligence” could be relied upon by LTC operators and could “immunize” some negligent homes where residents died from liability.

Graham Webb, a lawyer with the Advocacy Centre for the Elderly, also poked holes in Downey’s claim that frivolous cases won’t “gum up” the justice system. “This will not help to unclog the courts,” Webb said, noting litigation would become more “complex” and expensive.

Ontario Health Coalition executive director Natalie Mehra pointed out other jurisdictions have “resisted the lobby efforts of for-profit long-term care” firms that tried to get governments to limit their liability. Mehra said Extendicare ended its operations in Kentucky in 2012 after lawmakers refused the tort reform the company was hoping for in the face of negligence lawsuits.

“You have the power to do the right thing,” she told the committee.

On the flip side, the Ontario Hockey Federation’s executive director Phillip McKee called it a “great bill for hockey and all sports” organizations, because many are volunteer-run and risk shutting down if someone contracted Covid. “A simple lawsuit on negligence can bankrupt a provincial sport organization and eliminate sport for many, whereby the gross negligence provides a higher standard for a volunteer that is acting in good faith,” McKee said.

The Ontario Chamber of Commerce’s Rocco Rossi said liability protection is “crucial” for non-profits and charities in particular. The Ontario Nonprofit Network has also lauded the move, saying skyrocketing insurance costs could lead to some providers closing their doors.

PCs accused of muzzling the public over Bill 218
Opposition critics accused the PCs of muzzling citizens because there was only five hours of public hearings and dozens of would-be witnesses, including families of long-term care residents and municipalities, didn’t make the roster.

Green Leader Mike Schreiner called it a “dark day for democratic participation.”

“It’s bad enough that the government is attacking the ability of people to determine the best way to democratically conduct local elections; now they are denying people an opportunity to participate in our democratic institutions by ramming Bill 218 through committee,” he said in Wednesday’s question period.

Schreiner said he’s heard from many, including elected municipal councillors and the Association of Municipalities of Ontario, who “want their democratic voices to be heard.” He asked the government to extend the hearings, noting only one witness signed up to speak to the ranked-ballot provisions.

Government house leader Paul Calandra fired back that the time-allocation motion fast-tracking the bill was voted on by all MPPs (the PCs clinched it with their majority). “So no, I will not overturn the democratic vote and voice of the people on this particular issue,” Calandra said.

According to the Ontario Health Coalition, which snagged one of the 15 slots available to speak at committee, at least 58 people applied to testify. People can also submit written submissions to the committee clerk, but the OHC said the government “gave almost no notice.”

“So families spent hours in the past two days reliving the horrors of the last days of their loved ones’ lives while trying to write up their presentations, only to find that they will not be heard,” said Mehra, its executive director.

Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, is on the fast-track thanks to a PC time-allocation motion. It was slated for just one afternoon of public hearings and will be up for a possible makeover at clause-by-clause consideration on Monday. It’s due back to the house, with any amendments, for third reading by November 16.