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Written by: Adam Riggio

Doug Ford’s new liability laws shield private businesses of all sorts from having to pay some kind of price when workers or those in their care are infected with COVID19. But exploring the philosophy behind this legal travesty can help us progressives better understand the ideology we face. That better knowledge can help us defeat it.

Bill 218: Letting Businesses Off the Hook

The text of Bill 218 on COVID liability is not too long, not too difficult to understand, but its effects will be an insult to the ordinary people of Ontario if it passes as is. Under current law, if a worker at a business in Ontario, or someone for whom that business was responsible, is infected or proven exposed to COVID19, that person has the power to lawyer up and sue for the damages you deserve.

Bill 218 makes that incredibly difficult, if not impossible. The legislation lowers the standard that a business would have to meet to avoid liability for COVID19 infection and exposure. As long as they made a “good faith” attempt to follow safety procedures and relevant laws, the business is not liable for infections and exposures. The term “good faith” remains quite vague, but the following line item in the legislation is a clue to just how low those standards can go.

The most straightforward legal approach for a civil suit against a company at the centre of a COVID19 outbreak is to show “ordinary negligence.” This would be some shortcoming in how the business went about protecting its workers and customers from coronavirus infection. The legal standard is that a reasonable person would survey the company’s COVID19 protections, and see that they were inadequate.

Liability Protections for Those Responsible for Harm

Unfortunately for anyone infected or exposed to COVID19 while under the care of a company, the legislation blatantly raises the standard of misconduct that a civil plaintiff will have to show. In the ordinary way of doing things, you could show liability for an outbreak if your lawsuit finds evidence that the company never bothered with some reasonable safety measures.

But Bill 218 will make this standard of evidence inadequate for civil suits. Instead of what Canadian law defines as “ordinary negligence,” the omission of reasonable safety measures, a plaintiff must now demonstrate “gross negligence.” This means that a plaintiff has to prove that the company, its owners, and managers were overtly indifferent to the welfare of workers and customers.

Simply being a bumbling fool is no longer enough to be considered liable; one must now have been as openly cruel as an unredeemed Ebenezer Scrooge. The simplest public relations effort – “I assure you all that we did everything we thought we could; I especially assure you, Your Honour!” – is enough for a company responsible for the deaths and infection of vulnerable people in their care to avoid all liability.

Just to make it crystal clear, the legislation says that omission won’t be enough to meet the standard of gross negligence. That’s in Schedule 1, Section 2, Sub-section 1b.

What that means legally is that a company can simply not have bothered with a lot of scientifically sound efforts to protect workers and customers, for whatever reason they may wish to give. As long as the company couches those reasons as a “good faith” attempt to follow public health guidelines, they can walk away from liability for infection. Not only are they walking away, the biggest private LTC companies have themselves been pressuring the government to take responsibility for their deadly mistakes.

After all, protecting people for whom you’re responsible takes forethought, planning, and bothering with some actual effort. What successful businessperson, mindful only of efficiency, cost cutting, maximizing revenues, and supercharging profit, would ever consider that?

No Responsibility for Suffering

The biggest public uproar over this corporate free pass away from basic ethics in business has come over what this means for Long-Term Care homes. Advocates of justice for those condemned to LTC facilities no better than torture pods for isolated sickness and lonely death, have begun vocally pressuring the Ford government.

Because we must surely be aware that the pandemic has fallen disproportionately on the elderly and disabled in Long-Term Care facilities, and the worst outbreaks have happened in those many care homes that are privately owned. As of the 24 October weekend, 77 Long-Term Care homes across Ontario have suffered COVID19 outbreaks. Through those 77 outbreaks, 1,913 people under the care of these LTC companies have died as COVID19 leaves you: pathetic, undignified, abandoned.

Bill 218 does declare that businesses where COVID19 outbreaks happened will still be liable if found guilty in a criminal court. But a company’s failure to act with responsibility rarely results in actions overtly evil enough for criminal charges, let alone conviction. Practically speaking, Doug Ford’s new COVID19 civil liability laws give a free pass to businesses whose cheapskate management policies facilitated outbreaks that infected many thousands, killed nearly two thousand, and continue at a frightening pace today.

Protecting the Irresponsible

The higher liability standards of Bill 218 for COVID19 outbreaks is not, according to the government, about protecting the owners of Long-Term Care homes, bistros, warehouses, and other businesses from the repercussions of their responsibilities. Its ostensible purpose is to allow companies that have suffered outbreaks to access the insurance necessary to reopen.

Insurance companies have indeed begun denying policies to businesses trying to restart after a virus outbreak, but a reasonable person would consider that a sensible thing to do. If your business has already demonstrated that it wasn’t up to the task of protecting its workers and customers from COVID19 infection, then that is proof of your incompetence. It’s certainly not a reason for you to be given a second chance, given the incredibly high stakes of running a business in pandemic circumstances.

Permitting an outbreak in your business, especially now that we know so much about how to prevent outbreaks, should disqualify you from operating a business. Someone more thorough and conscientious should have the opportunity to pick up and fulfill better the central responsibility of any business owner: safe conduct. So why is the Ford government letting businesses that have already demonstrated their irresponsibility off the hook?

A Philosophy Where Businesses Are a Society’s Most Important Members

The reason lies in what Ford and those who share his ideology, very common in modern conservative thinking all over the West, consider the role of business in society. Ford’s approach to pandemic aid and the economics of public health centres the needs of businesses. Yet centring the needs of businesses over individuals, families, and communities, in Ford’s ideology, does not devalue them. Instead, he considers prioritizing business aid as itself the best means of supporting individuals, families, and communities.

Few of us progressives can even understand this idea, because it is so contrary to our fundamental approach to politics. The West’s dominant right-wing ideology understands the for-profit business as the only framework for organizing large numbers of people that can secure human freedom. Any political-economic system or institution in which people organize as a distributed network of actors (trade unions, co-operatives) or that distributes life’s necessities as a common good (welfare programs, state ownership or control of utilities and industries) is a form of totalitarian nightmare.

Call it Neoliberalism, Chicago School Thought, Corporate Libertarianism, Austrian School Economics, Mont Pelerin Ideology, The Road to Serfdom, the Cackling Demiurge That Margaret Thatcher’s Ghost Has Become. The practical result of this ideology in Ontario’s pandemic is that the Ford government prioritizes the smooth and safe running of businesses as the best and only democratic way to stimulate the economy and prevent the population from sliding into poverty.

The only way to get people out of poverty is to get them to work. Since the only democratic way to stimulate the economy is to mobilize privately-controlled capital, he thinks he must protect that private capital at all costs. If a private business like a nursing home or a resto-bar can no longer operate because its past outbreaks have made it an uninsurable red alert risk, then none of its private capital can any longer get to people who need money.

If that means the sick, the dead, and their families are cut off from even the semblance of justice that a civil lawsuit’s compensation can bring, Doug Ford, his government, and the fellow-travellers of this deranged ideology, then that is merely the necessary price of maintaining a strong and free economy.

When lies are so widely taken for truth, the result is death and devastation.

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