Recently, an Extraordinary Order from the Minister of Public Safety and Solicitor General for British Columbia gave essential service providers immunity from 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”. Simply stated, you cannot sue most parties for regular negligence when the damages are directly or even indirectly related to Covid-19.
The Order was made under the Emergency Programs Act and came into force March 18, 2020 in response to the Covid-19 Pandemic. A full link to the Order can be found here.
“Essential Services” include a number of institutions, occupations, and service providers named in the Schedule attached to the Order. The Order immunizing Essential Service providers from liability related to Covid-19 is a significant and sweeping Order – and rightly so. The global affects of Covid-19 have already been disruptive and debilitating to say the least. If not for this Order, there could be endless litigation involving Covid-19 and actions (or inactions) taken by various parties during this pandemic.
However, the Order very clearly draws a line in the sand when it comes to “gross negligence”.
Generally, gross negligence has been described as more than ordinary negligence, “but less than criminal negligence”. There is no legislation that defines gross negligence which makes identifying it difficult.
The common law (or precedents from prior cases) has defined gross negligence in a variety of contexts. For motor vehicle matters, gross negligence has been described as a “very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves.” In the police context, gross negligence has been described as “an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken.”
Most simply put, it has been defined as “a great negligence”. Whether or not gross negligence has been committed is usually very contextual. Generally, Courts in the past have taken a narrow view of gross negligence, since in most cases ordinary negligence is enough for a harmed party to seek damages caused by a negligent act. However, in our very unique and evolving situation, the question becomes – what is gross negligence in the context of dealing with a pandemic. Only time will tell, but it is clear that government bodies and affected parties are already anticipating litigation with respect to actions of Essential Service providers that may be considered grossly negligent.
Recently, 31 people died following a Covid-19 outbreak at the Résidence Herron in Dorval, Quebec. Premier Francoise Legault when questioned about the terrible circumstances at the Résidence Herron, stating that the action (or inaction) of the care home “looks a lot like gross negligence”.
Luckily, the common law’s definition of gross negligence is fluid. This allows Courts to interpret its meaning within differing contextual situations. The writer anticipates that the Courts will be seeing quite a few cases of alleged gross negligence in months and years that follow this pandemic. Questions to be answered include the duties of private essential service providers, and the standard of care owed to the general public in times of global crisis.
At Hammerberg Lawyers, we have a team of lawyers and staff who are well versed in all areas of negligence which includes gross negligence claims. If you or a loved one has suffered damages from Covid-19 which you believe is a result of the gross negligence of an Essential Service provider, reach out to us for a free consultation.
Written by: Anthony Eden