We are all aware that the world has recently undergone dramatic changes as a result of the novel COVID-19 pandemic. As the situation unfolds, one of the unique challenges for insureds providing essential services in British Columbia is their risk of uninsured liability for claims arising from COVID-19 exposure and infection.
Essential service providers are defined as those “daily services essential to preserving life, health, public safety and basic societal functioning”. Accordingly, a wide range of industries and occupations have been deemed essential in managing the COVID-19 crisis, including healthcare services, pharmacies, law enforcement and businesses providing support to police and correctional services or supporting infrastructure, businesses providing services to vulnerable populations including outreach services, residential care services and childcare services, all facilities supporting the food supply to British Columbians, sanitation services and communications services. For a full list of Essential Services, see here.
However, many commercial general liability (“CGL”) insurance policies contain exclusion clauses for liability arising from pathogens or microorganisms, such as the COVID-19 virus. Businesses providing essential services that were therefore being asked to remain open, faced a future threat of potentially significant negligence or Family Compensation Act claims brought by or on behalf of those infected with or exposed to the virus while accessing their services during the health emergency.
On April 2, 2020, Mike Farnworth, Minister for Public Safety and Solicitor General for the Province of British Columbia, executed Ministerial Order No. M094, pursuant to section 10(1) of the Emergency Program Act, “The Protection Against Liability (COVID-19) Order” (the “Order”). The Order applies from April 2 until the Provincial state of emergency expires or is cancelled and provides that:
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 [COVID-19] 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.
“[E]mergency and public health guidance” is a defined term in the Order and includes any orders made under the Emergency Program Act; instructions or orders of health officers as defined in the Public Health Act; and all guidelines of the British Columbia Centre for Disease Control, the Public Health Agency of Canada, health authorities, regulatory authorities with jurisdiction over persons providing essential services, and government websites. What constitutes a person’s “reasonable belief” that they were adhering to all emergency and public health guidance will depend on the circumstances of each case. However, it is unlikely a person will be found to have a reasonable belief that they were in compliance unless they have, at least, made inquiries to determine what is expected of them in the various sources of “guidance” listed in the Order; section 3(2) of the Order expressly says that it will not protect a person who was grossly negligent in operating or providing the essential service.
A large number of British Columbians continue to go to work to ensure that we can all continue to eat, keep warm, remain digitally accessible, keep safe, and have access to medical care, should we need it. The Order protects small and large businesses providing essential services, reduces the burden on insurers which insure essential service providers and which do not exclude coverage for claims arising from pathogens, and protects the Province against claims allegedly traced to hospitals, schools and licensed daycares while incentivising all to take all recommended steps to minimize the chance of exposure.
On April 22, 2020, Mike Farnworth, Minister for Public Safety and Solicitor General for the Province of British Columbia, executed Ministerial Order No. M120 “Protection Against Liability (COVID-19) Order No. 2” (the “New Order”), which replaces Ministerial Order No. 094 “Protection Against Liability (COVID-19)” issued on April 2.
Like its predecessor, the New Order protects essential service providers from liability for claims arising from COVID-19 exposure and infection that occur in the delivery of those services, provided that they have followed all recommended guidelines to protect against infection. Under the terms of the New Order, there is no change to the requirements for these essential workers to receive protection from liability. There are also no additions to the type of guidelines that individuals are required to follow in the delivery of essential services. For further information on what essential service providers must do in order to receive protection from liability, see our summary of the previous order here (insert link to previous blog).
Although the categories of “essential services” in the New Order are substantially similar to those of its predecessor, in some cases the list of what services are considered “essential” within those broader categories has been expanded or redefined. For example, although “blood and plasma donation services” is still listed as an essential health service, this subcategory now includes collection, production, distribution, diagnostics, laboratory testing, and related goods and services. For a full update on what are currently considered to be essential services, the providers of which can rely on the New Order for protection from liability, see Schedule A of the New Order (insert link).
The New Order will remain in effect until the state of emergency declared on March 18, 2020 expires or is cancelled.