Bill 70: Alberta’s COVID-19 liability protection legislation

On April 22, 2021, the Alberta legislature introduced Bill 70: COVID-19 Related Measures Act (the “Bill”). If passed, the Bill will provide COVID-19 related liability protection for Alberta Health Services (“AHS”), health service facilities (as defined in the Bill and discussed below), regulated health professionals and their employees, contractors and subcontractors, and potentially other facilities, persons or classes of persons if designated by regulation in the future.

Background

COVID-19 related liability protection legislation was introduced and passed in 2020 in both B.C. and Ontario. This legislation has broad application that extends beyond the health sector. Nova Scotia implemented protection in a much more limited way. A Ministerial Direction was issued under the province’s emergency management legislation pursuant to the declared state of emergency. Its scope of application is limited to homes licensed by the province’s Minister of Health and Wellness or the Minister of Community Services under the Homes for Special Care Act. Saskatchewan has similar legislation currently before the legislature.

Section 66.1 of Alberta’s Public Health Act provides protection from liability for a number of persons and organizations when carrying out duties under that Act, but it is not COVID-19 specific and the Bill would fill existing gaps in liability protection for some of the persons and organizations that have been exposed to liability through events arising due to the pandemic.

Certain healthcare providers in Alberta currently face significant exposure in terms of legal liability arising from COVID-19. Early in the pandemic this resulted in a rush to create COVID-19 waivers in the sector. It is not known whether such waivers would, if tested, be legally enforceable.

With rising numbers of COVID-19 class action lawsuits, healthcare providers saw their insurance premiums rising to levels that could make certain healthcare sectors unsustainable.

Bill 70 is the Alberta Government’s response to this situation. But it does not come without controversy. The following provides an overview of the Bill, the protections it provides and to whom, and explains what is not covered by the Bill.

Bill 70: An Overview

Who benefits from Bill 70?

If passed, the Bill will provide protection to three groups of persons/organizations, and will allow for the addition of other persons/organizations by regulation:

1. Specified health service facilities, including owners, operators, directors, officers, employees, contractors and subcontractors of prescribed health service facilities;
2. a regional health authority, including a member, officer, employee, agent, contractor and subcontractor of a regional health authority;
3. a regulated member as defined in the Health Professions Act, including an employee, contractor and subcontractor of a regulated member;
4. any other facility, person or class of persons prescribed in the regulations.

A “health service facility” is defined in the Bill as:

(i) a public hospital or chartered surgical facility as defined in the Health Facilities Act,

(ii) an auxiliary hospital as defined in the Hospitals Act,

(iii) a facility as defined in the Mental Health Act,

(iv) a nursing home as defined in the Nursing Homes Act,

(v) a pharmacy as defined in the Pharmacy and Drug Act,

(vi) a protective safe house as defined in the Protection of Children Abusing Drugs Act,

(vii) a supportive living accommodation as defined in the Supportive Living Accommodation Licensing Act, or

(viii) a place where residential addiction treatment services are provided under the Mental Health Services Protection Act;

A “regional health authority” is defined in the Bill as a regional health authority established under the Regional Health Authorities Act and, in practice, means Alberta Health Services.

A “regulated member” is defined in the Health Professions Act as a person who is registered as a member under section 33(1)(a) of that Act.

The above persons and organizations are referred to herein as the “protected persons”.

This results in fairly broad protection for health service facilities and providers.

What types of actions does Bill 70 apply to?

If passed, the Bill will prevent civil actions for damages against the protected persons if the action arises as a direct or indirect result of an individual being or potentially being exposed to COVID-19, as a direct or indirect result of an act or omission of the protected persons, provided certain conditions are met.

In order to receive the benefit of the liability protection, the protected person must have been acting, or have made a good faith effort to act, in accordance with:

1. applicable public health guidance related to COVID-19; and
2. applicable federal, provincial or municipal laws related to COVID-19.

“Public health guidance” is broadly defined in the Bill as:

…any advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication, by any of the following:

(i) the Crown;

(ii) a regional health authority, or a member, employee or agent of a regional health authority;

(iii) the Chief Medical Officer, the Deputy Chief Medical Officer, an executive officer or a medical officer of health;

(iv) a Minister or a department of the Government of Alberta or the Government of Canada, or an officer or employee of such a department;

(v) an agency of the Government of Alberta or the Government of Canada, or an officer or employee of such an agency;

(vi) a public health official of the Government of Canada;

(vii) a municipality as defined in the Municipal Government Act, or an officer or employee of a municipality;

(viii) a regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body.

“Good faith effort” has been defined as “an honest effort, whether or not that effort is reasonable”. This is the same definition used in the Ontario legislation: Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020. Notably, this definition departs from the common law meaning of good faith, and more typical statutory duties of good faith applicable in other contexts, both of which require that the effort be reasonable.

The Bill applies to vicarious actions as well, such that anyone vicariously liable for the acts or omissions of a protected person will also receive the protections afforded by the Bill.

What is NOT covered by Bill 70?

Bill 70 does not provide liability protection for acts or omissions caused by gross negligence, which has been defined by the Courts as willful, wanton or reckless misconduct.

Section 6 of the Bill appears to attempt to exclude facilities or persons respecting acts or omissions that occurred while a protected person was required by law to close an aspect of its operations. This was modelled after Ontario’s legislation which is vaguely drafted. As a result, its implications are unclear. It may not result in a practical issue but may lead to unnecessary legal challenges based on the section’s lack of clarity.

Furthermore, Bill 70 does not apply to administrative processes or proceedings – it provides protection from civil liability only.

What period does the Bill apply to?

The Bill, as currently drafted, is retroactive to March 1, 2020. If passed in this form, any civil actions commenced in respect of acts or omissions covered by the Bill will be subject to potential summary dismissal. The current draft of the Bill also provides that no compensation (from the Crown or otherwise) will be available in respect of the termination of rights effected by the Bill.

Next Steps

The Bill will be debated in the legislature and input will be sought in committee. We will continue to provide updates on the Bill as it moves forward.