Consumer v. Business Protection – Public Policy Debates in the COVID-19 Era

The Government of Ontario has recently alluded to proposals of joining other jurisdictions that have enacted legislation that shields businesses against lawsuits related to COVID-19. While details are still underway, these novel measures will likely be subject to scrutiny for on the one hand, protecting businesses who were tasked with dealing with unchartered circumstances, and on the other hand, insulating businesses who should be held accountable for its negligence or poor practice during and beyond this pandemic.

Many provinces and states have implemented executive orders granting various grades of immunity to health care practitioners and facilities. In British Columbia for example, a Ministerial Order came into force in April, that precludes law suits or any damages therein arising out of infection or exposure to the pandemic while providing essential services. The only caveats to trigger these protections are: a) the business must have been complying with the provincial public health guidelines and, b) the business was not grossly negligent. Given the wide range of sectors that are qualified as “essential services”, this new policy is far-reaching. Similar legislation was passed in Oklahoma, Utah, North Carolina and Wyoming; and other states and provinces are projected to follow.

These policies have contentious implications on the community at large . Many fatalities over the last few months for instance, are attributed to negligence within the elder care regime, and can be connected to long term care homes. These facilities are already the subject of several class action law suits. Those in favour of these policies suggest that these measures are imperative for businesses to remain operable, qualify for insurance coverage, and sustain its practice. However, advocates against these immunities argue that such protections will only allow businesses to circumvent liability for poor business practices. The Government will be tasked with balancing these compelling narratives to create a regime that bolsters the economy while protecting its citizens.

As the debate between good public policy and sound economic decisions ensue, the next few weeks will be determinative in Ontario with respect to the precedent it seeks to set. The legal community awaits further guidance on the scope and breadth of such legislation to properly assess its implications on businesses and its consumers.