With much of Ontario continuing to reopen, many organizations have begun considering their mitigation strategies to protect both the organization and its employees from liability arising from the transmission of COVID-19. One common mitigation strategy at the forefront is the use of waivers of liability. Interestingly, many jurisdictions have begun passing emergency legislation which seeks to protect organizations and persons acting in good faith from COVID-19 lawsuits. On June 17, 2020, the Government of Ontario indicated its intention to consider enacting legislation to this effect. 

This article considers the practical enforceability of waivers of liability for infectious diseases and provides recommendations on the content of these liability waivers to limit the risk of legal liability. In addition, this article briefly discusses good faith immunity from COVID-19 as is being considered by the Government of Ontario. 

a) Practical Enforceability of Liability Waivers for Infectious Diseases 

Waivers of liability are agreements between the organization, which provides goods or services, and its consumer. In executing a waiver of liability, the consumer agrees not to hold the organization liable for injuries sustained as a result of the goods or services, including any injuries sustained as a result of an organization’s negligence. In other words, a consumer is forfeiting their right to commence a claim against the organization. 

Generally speaking, Ontario courts consider the following criteria when determining the enforceability of a waiver of liability: 

1. Whether the waiver is clearly written, including whether the language used is clear, unambiguous and easily understood to the average reader; 
2. Whether the waiver expressly informs the consumer that they are forfeiting their right to commence a claim against the organization; 
3. Whether the waiver clearly excludes liability for injuries caused by negligence, and whether the scope identifies the specific circumstances; 
4. Whether the consumers’ attention was directed to the clause protecting the organization from liability, including negligence; 
5. Whether the consumers’ attention was brought to the clause protecting the organization from liability, including negligence, before accepting the goods or services; and
6. Whether the consumers chose to accept the terms of the waiver, having understood the scope and effect of the waiver of liability, on a voluntary basis without duress or undue influence. 

Thus, when providing the waiver of liability to consumers, organizations should also be sure to provide the consumer with the waiver of liability prior to delivering the goods or services, specifically draw the consumers’ attention to the clause pertaining to forfeiting their right to sue, ensure that the contents of the waiver of liability are clear that the organization and its employees are not liable for the transmission of infectious diseases, such as COVID-19, and specifically advise the consumer that the organization and its employees will not be liable for any injury or illness, including the transmission of infectious diseases such as COVID-19, caused by negligence. The organization should allow for its consumers time to read over the waiver of liability in full, answer any questions that they may have regarding same, and keep original and digital records of all executed waivers of liability.  

In terms of the waiver of liability itself, organizations may wish to consider practical tools which bring the scope and importance of the waiver to consumers’ attention, such as separating the waiver of liability apart from other written agreements, bolding, increasing font size, underlining, altering formatting, or adding specific colours that draw attention, and if provided online, ensuring that the consumer is required to click to agree and provide an electronic signature.  

While it is not yet possible to predict how the Ontario courts will interpret and enforce waivers of liability specific to infectious diseases, ensuring that the above-referenced requirements are met would increase the likelihood that a court would enforce same. However, we do recommend, even where the requirements are all met, that an organization considering the use of waivers of liability be cautious in relying solely on same. 

(b) Legislating Good Faith Immunity from COVID-19 Claims

Several jurisdictions in the United States of America have already passed emergency orders granting protection to its health care workers and facilities from COVID-19 lawsuits for good faith efforts. 

In April, the Government of British Columbia followed suit and passed a very broad Ministerial Order which provides protection for any organization or person providing an essential service from liability for damages resulting from exposure to or the spread of COVID-19 infections. The list of essential service providers who are granted immunity includes:

1. health care workers; 
2. law enforcement personnel and first responders; 
3. vulnerable population service providers; 
4. critical infrastructure service providers; 
5. food and agriculture service providers; 
6. transportation, infrastructure and manufacturing services; 
7. sanitation services; 
8. communications, information sharing and information technology providers; and
9. non-essential service provides. 

On June 10, 2020, a further Ministerial Order came into force in British Columbia which granted sporting organizations immunity to COVID-19 lawsuits as well. However, it is important to note that immunity will not be provided to those who are found liable for gross negligence or for failing to follow public health guidelines. 

On June 17, 2020, the Government of Ontario indicated it would consider enacting protections from lawsuits for organizations and people who spread COVID-19 while acting in good faith. The purpose of this legislation would be to prevent lawsuits against companies and people who unwittingly infect others as the province continues to allow more non-essential businesses to open. Similarly, to British Columbia, Premier Doug Ford clarified that he is “not supporting bad actors” and that those persons will be held accountable. However, it remains to be seen how this may affect lawsuits that were already commenced in Ontario. As of early June, there were at least nineteen proposed class actions across Canada relating to the pandemic.

There are ongoing debates surrounding whether the Government of Ontario should in fact grant civil immunity. Some argue that companies and persons acting in good faith, with reasonable procedures, should not have to spend resources and several years litigating these lawsuits. However, others are of the view that organizations and persons should be held accountable and responsible for their negligent practices. It remains to be seen whether the Government of Ontario will in fact join the other jurisdictions in enacting this legislation. 

Key Take-Aways

• Be prepared. Organizations may wish to consider asking their consumers to sign a waiver of liability prior to receiving the goods or services it offers. However, we strongly recommend that organizations seek legal advice when considering a waiver of liability to minimize exposure to liability. 
• Be prudent. It remains to be seen how the courts will interpret and enforce liability waivers of infectious diseases. As such, it would be prudent for organizations to view waivers of liability as only one tool in their mitigation strategies and continue to take all additional precautions rather than rely solely on waivers. For instance, organizations should be sure to follow best practices as recommended by health officials, such as social distancing, wearing masks, and cleaning on a regular basis. 
• Be mindful. Should the Government of Ontario follow this trend and provide immunity from COVID-19 lawsuits, the implications will surely be widespread and felt by businesses, employees and employers, and consumers alike. 

For further assistance, please contact a member of our business group. 

Sarah Reich