Essential Services and Liability for Exposure to COVID-19

The province of British Columbia declared a state of emergency on March 18, 2020 because of the COVID-19 pandemic. The provincial government has extended the state of emergency until the end of day on June 9, 2020, and may extend it further if necessary.

The state of emergency allows the provincial government to use extraordinary powers in response to the COVID-19 pandemic. By Ministerial Order No. M094 (“MO 94”), the provincial government announced that under prescribed circumstances, essential service providers cannot be held liable for exposing individuals to SARS-CoV-2 (COVID-19). MO 94 was repealed and replaced by Ministerial Order No. M120 (“MO 120”). MO 120 is in effect until the date on which the last extension of the declaration of the state of emergency expires.

Pursuant to MO 120, a person is not liable for damages resulting, directly or indirectly, from an individual being or likely being infected with or exposed to COVID-19 as a result of the person’s operating or providing an essential service if, at the relevant time, the person:

1. was operating or providing the essential service in accordance with all applicable emergency and public health guidance; or

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

The protection afforded by MO 120 does not apply if, in operating or providing the essential service, the operator was grossly negligent.

It is therefore critical for essential service providers to have full knowledge and understanding of the orders from the Provincial Health Officer and other authorities, and ensure these orders are being complied with. If essential service providers do not comply with these orders, they could potentially be held liable for damages relating to exposing individuals to COVID-19.

A list of Ministerial Orders in response to COVID-19 can be found here.