Can workers or customers sue business owners for contracting the coronavirus?

The answer is yes if they are negligent. Essential service businesses, however, are not liable for infecting a person during the pandemic unless grossly negligent. Normal negligence for spreading COVID-19 does not apply to essential businesses. Business liability for covid-19 is dependent on the nature of the business.

We will explain and define gross negligence in the context of business liability for COVID-19. But first let’s put this in the context of the biggest global pandemic in 100 years.

Protection Against Liability Order

The Protection Against Liability (COVID-19) Order of April 2, 2020 creates a hierarchy of liability for businesses during the pandemic never applied before in this province. This order creates special legal protection for only those people providing essential services during the pandemic.

Virus with no immunity

The SARS outbreaks in 2003, Ebola in 2014, and flu pandemics such as the 2009 Mexician Flu have given government and businesses clear notice that COVID-19, a new virus, can lead to a significant level of illness and death in populations that do not have immunity.

The spread of the coronavirus is resulting in pain, suffering, loss of income, loss of business opportunities, loss of enjoyment and in some cases loss of insurance coverage and breach of contract.

Customers, suppliers and contractors can still sue non-essential businesses and non-profits despite the ministerial order exempting essential services from responsibility for negligent contraction of COVID-19. Negligently spreading the virus makes businesses liable under negligence simpliciter during the public health emergency.

Essential Service Businesses

Business operators are immune from claims for negligence simpliciter, but not for claims for gross negligence. This applies during the public health emergency.

Services considered essential to preserving life, health, public safety, and basic societal functions. The government has encouraged “essential services” to remain open. These include: doctors, nurses, law enforcement, health services, vulnerable population service providers, critical infrastructure service providers, transportation infrastructure, manufacturing, grocery stores, pharmacies, legal services, insurance services, liquor and cannabis stores, sanitation, communications, information sharing, pawnbrokers, dry cleaners, home supply stores, farmer’s markets, pet supply stores and more.

These businesses can still be liable for spreading COVID-19 if they are grossly negligent. Let’s discuss the definition of gross negligence.
BC legislation establishes the concept of gross negligence for law enforcement and schools. However, outside breach of contract, breach of lease, car accidents, and municipal liability, the concept has rarely been applied . Some examples of gross negligence include doctors prescribing wrong drugs, nursing staff failing to provide the necessities, and excessive speeding on roads with dense pedestrian traffic.

The term gross negligence implies that, “there is a very marked departure from the standards by which responsible and competent people in charge…govern themselves.”( McCulloch v. Murray, [1942] S.C.R. 141, where Duff C.J.C., at p. 145 followed in Lapshinoff v. Wray,2020 BCCA 31)

The definition of “gross negligence” in Ogilvie v. Donkin, [1949] 1 W.W.R. 439 (B.C.C.A). O’Halloran J.A. held, at p. 441 is very helpful:

“…a rational test for deciding whether negligence is “gross”… is the magnitude of the foreseeable risks in the particular circumstances…. The failure to take care develops into gross negligence within the meaning of the statute, when it must be plain the magnitude of the risks involved are such that, if more than ordinary care is not taken, a mishap is likely to occur in which loss of life, serious injury or grave damage is almost inevitable.”(Hildebrand v. Fox, 2008 BCCA 434 at para 18)

Non-Essential Service Businesses

As for non-essential services, the province advised any business or service not ordered to close, and not identified as an essential service, may stay open if it can adapt its services and workplace to the orders and recommendations of the provincial health officer. On March 20, 2020 all restaurants across the province were ordered closed to dine-in guests and limited to only take-out or delivery services until further notice.

Therefore, some non essential businesses have remained open or are providing delivery service, exposing their businesses to potential liability for spreading virus.

What if my business is not an essential service could we be liable for spreading the virus? Workers for non-essential business maybe prevented from suing their employers for contracting the coronavirus. The Worker Compensation Act prevents workers from suing employers when injured in the course of employment. In these circumstances, the worker must make a claim with Worksafe BC to seek compensation. In this case, the worker has no claim against the employer.

A claim for losses such as loss of income and loss of enjoyment of life against the non-essential business for negligence exists. Customers infected by COVID-19 may have a claim under the Occupiers Liability Act, similar to a slip and fall claim. In addition, the Province may also have a claim against a business under the Health Care Costs Recovery Act, if a person contracts COVID-19, resulting in healthcare costs to the Province.

Contracting COVID-19 from a Business

Can I sue a business for giving me the coronavirus? The COVID-19 pandemic resulted in a state of emergency in British Columbia, declared on March 18, 2020. To reduce the risk of infection some businesses closed. However, many businesses and non-profits remain open deemed essential services. The law applied to your claim will depend on whether the business was providing an essential or non-essential service, as discussed above.

Since the World Health Organization declared the spread of the coronavirus to be a pandemic on March 11, 2020 the legal impact of COVID-19 has been in flux. The Protection Against Liability Order in BC applies from April 2, 2020 and ends on the date on which the declaration of a state of emergency is lifted.

Well equipped to answer your call as the law in this area changes, contact any of our lawyers for a free legal consultation.

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