Essential Services Providers Protected Against Liability for COVID Spread

two construction workers working on scaffolding

On April 2, 2020, the Minister of Public Safety and Solicitor General issued the Protection Against Liability (COVID-19) Order, which should allow those providing Essential Services to breathe a little easier (whether or not that’s through one, two or no masks).

The Order’s main provision is short, so we’ll set it out here:

3 (1) A person is not liable for damages resulting, directly or indirectly, from an individual being or likely being infected with or exposed to SARS-CoV-2 as a result of the person’s operating or providing an essential service if, at the relevant time, the person

(a) was operating or providing the essential service in accordance with all applicable emergency and public health guidance, or

(b) reasonably believed that the person was operating or providing the essential service in accordance with all applicable emergency and public health guidance.

(2) Subsection (1) does not apply to a person referred to in that subsection if, in operating or providing the essential service, the person was grossly negligent.

Each of the bolded words is specifically defined in the Order, so it’s important to read those definitions to fully grasp what this means.

A couple extra points:

  1. Gross negligence: is highly context specific. The general principles were nicely summarized in these two BC court decisions, the first by the BC Court of Appeal:

    [48] While gross negligence and wilful misconduct both represent marked departures from expected standards of conduct, they have different focusses. Gross negligence is a species of negligence: the focus is on a failure to take due care and on the magnitude of the risk resulting from that failure. Wilful misconduct, on the other hand, focuses on deliberate flouting of norms, or indifference to following those norms in the face of a duty to do so.

    In the second case, the BC Supreme Court set out the principles differently:

    [16] …the concept of “gross negligence” imports conduct, which, in terms of the surrounding circumstances, has aggravated, flagrant, or extreme characteristics.  Unless carelessness goes substantially beyond mere casual inadvertence or momentary forgetfulness or thoughtlessness, it will not amount to gross negligence.

  2. Time limited: the Order is effective from April 2, 2020, until the date on which the declaration of a state of emergency made on March 18, 2020 expires or is cancelled.

If you have questions or concerns about how the Order applies to you or your organization, please contact the author.

For information on how this Order affects employers, click here

For more legal analysis of how COVID may affect your business, or personal affairs, visit Clark Wilson’s COVID-19 Resource and FAQ pages