Personal Injury News: February 2021
By Andrew Spurgeon, Ross and McBride
Change is in the Air
The pandemic has precipitated profound changes in numerous aspects of law. Technologically, the courts have leaped directly from the 19th to the 21st century in the span of less than a year. The Ministry of the Attorney General has adopted a document management platform (Caselines) which enables counsel and litigants to e-file and manage pleadings, motions, and ultimately evidence in an electronic format for all court proceedings.
However, from a policy and liability perspective, we seem to have reverted from the 21st century to the 19th. This is reflected in two separate pieces of legislation which provide new defenses to claims of negligently caused injury in two specific, yet presently common circumstances:
- Occupier’s liability for slips and falls on ice and snow; and
- Contraction of COVID-19 due to the negligence of others.
The Legislature has passed two separate pieces of legislation. The first, Bill 118, amends the Occupier’s Liability Act, imposing a new notice period. The second, Bill 218, introduces a “gross negligence” standard and a “good faith defense” for persons who act negligently in spreading COVID-19. Let’s look at each one in turn.
The duty of care of an occupier of a premises is:
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Bill 118 amends the Occupier’s Liability Act introducing a new section 6.1 which indicates that no action lies against an occupier or an independent contractor responsible for removing ice and snow for personal injury caused by ice or snow unless the written notice of the incident, particularized by date, time and location is provided to either the occupier or independent contractor within 60 days of the occurrence.
Service of the written notice must be personal or by registered mail. Failure to provide notice is a bar to the action unless the injured person dies because of the injury. Failure to provide notice, or provision of insufficient notice can be excused by a judge if (1) there is a reasonable excuse and (2) the defendant is not prejudiced in its defense as a result.
This provision came into effect on the day it was given Royal Assent which was December 8, 2020.
Interestingly, this amendment to the Occupiers Liability Act introduces a notice provision longer than that enjoyed by municipalities in respect of ice and snow on sidewalks: 60 versus 10 days. Moreover, and fortunately for injured people, it does not introduce a new element of “gross negligence” into the cause of action of a breach of an occupier’s duty of care as set out in section 3(1).
No doubt this change will please insurers and property owners and will not be noticed by members of the public until something bad happens to them. For lawyers, it is crucial to remember that when anyone phones your office complaining of a broken leg due to slipping on ice or snow, you must get their contact information and inform them in writing of the notice period and the potential consequences of not meeting that notice period.
There will no doubt be case law developed over time on the adequacy of notice and the duty of an injured person (and their Lawyer) to identify the correct person to whom to send notice. Be forewarned that this notice period is a new potential hazard upon which you can slip and fall on. Be alert.
The second major intervention the Legislature has introduced modifying civil liability in Ontario is Bill 218. It creates a “good faith” defense for persons or entities which may potentially be liable for the spread of COVID-19.
The predominate circumstance in which this would apply would be in congregate settings like nursing homes, retirement homes and other long-term care facilities.
Section 2 in Schedule 1 of the Act provides that no cause of action arises against any person 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,
- at the relevant time, the person acted or made a good faith effort to act in accordance with,
- public health guidance relating to coronavirus (COVID-19) that applied to the person, and
- any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and
- the act or omission of the person does not constitute gross negligence.
Essentially, in this section the Legislature does two things:
- It has established a more onerous standard for a plaintiff to prove a dereliction in the duty of care owed by a defendant (gross negligence) than is normally the case (negligence) as an element of the cause of action.
- It provides defendants with a defense of “good faith” to allegations of gross negligence based on their ability to demonstrate at least some minimal adherence to applicable public health guidance or regulation.
It has always been a bit unclear to me as to what “gross negligence” actually is. Some definitions impute to the term a sense of extra-ordinary lack of care, or an extra low threshold of acceptable care. On this point HLA Hart says, “Negligence is gross if the precautions to be taken against harm are very simple, such as persons who are but poorly endowed with physical and mental capacities can easily take.”[i]
Other definitions suggest that to prove gross negligence, the plaintiff must prove a conscious act or omission with reckless disregard of a legal duty. This is a perspective that implies a sense of moral culpability that is perhaps not equal to a criminal mens rea standard, but more than just not taking reasonable care to cause reasonably foreseeable harm. Regardless, it appears that overall “… most courts consider that ‘gross negligence’ falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind.”[ii]
The statute defines “good faith effort” as something that includes: “… an honest effort, whether or not it is reasonable….” Essentially, the purported defense available to defendants established in the legislation is that, despite not taking reasonable steps to avoid causing reasonably foreseeable harm, the defendant can assert: “I tried! I should not be liable even if I acted unreasonably – stupidly in fact. If my heart was in the right place and I tried, I am not liable!”
So, does it mean that if management at a nursing home with a horrendous outbreak of COVID-19 resulting in the death of 1/3 of the residents of a home could escape liability even if:
- It was woefully understaffed;
- Had inadequate supplies of personal protective equipment for staff use;
- Had not trained staffbeyond a perfunctory level on appropriate infection control;
- Had inadequate management oversight of frontline staff’s interaction with residents; and
- Did not provide sufficient hand sanitation at the entrance of each resident’s room;
As long as management posted government issued “health guidance” on bulletin boards for staff and residents to see? Is that enough to demonstrate “good faith”?
Is it enough for the management of a long term care facility to simply issue an edict or directive to staff to take precautions in line with public health protocols but not:
- actively enforce those protocols;
- properly educate staff on those protocols; or
- provide resources to enable staff to properly follow such protocols
To be said to have acted in “good faith”? Will it be enough for management of a nursing home to go through a few perfunctory motions to be able to say “I acted in good faith”? We will have to wait and see.
Here’s hoping 2021 is better than 2020.
[i] HLA Hart, “Negligence, Mens Rea and Criminal Responsibility” in Punishment and Responsibility 136, 149 (1968)
[ii] W. Page Keeton et al, Prosser and Keeton on the Law of Torts article 34, pp. 211-212 (5th ed 1984)
Andrew J. Spurgeon is a partner at Ross and McBride. He is also an Elected Bencher of the Law Society of Ontario, and the Chairman of the Board of Directors LawPRO, which is the sole insurance company providing primary liability coverage to all 28,000 lawyers in private practice in Ontario.
He can be reached at:
Ross & McBride
1 King St W, Hamilton, ON