New Order in Council expands scope of COVID-19 liability protections

On August 6, 2020, the Order in Council No. 459 was passed, bringing into effect COVID-19 (Limits on Actions and Proceedings) Regulation, BC Reg 204/2020 (the “Regulation”). The Regulation is retroactive to January 1, 2020.

The Regulation provides greater certainty of the types of COVID-19-related civil liability protections provided by Section 5 of the COVID-19 Related Measures Act. We initially wrote about the Act here. Section 5 of the Act states in part:

(1) Subject to subsection (2) and the regulations, no legal proceeding for prescribed damages related to the COVID-19 pandemic lies or may be commenced or maintained against a prescribed person or a person in a prescribed class of persons because of

(a) any prescribed act or omission of the person, or

(b) any act or omission of the person in a prescribed class of acts or omissions.

(2) Subsection (1) does not apply in relation to damages caused by gross negligence.

The Regulation specifies that the “prescribed damages” under (1) above for which no legal proceeding may be brought are those arising directly or indirectly from an individual being, or likely being, infected from COVID-19. The civil liability protections provided by the Regulation extend to any person engaged in one of the following acts:

(a) the operation or provision of an essential service;

(b) an activity that has the purpose of benefiting the community or any aspect of the community, including in relation to

(i) the relief of poverty,

(ii) the advancement of education or religion,

(iii) the promotion of health,

(iv) the protection of the environment,

(v) the provision of services to a vulnerable or disadvantaged person or group, or

(vi) the provision of community recreation or leisure activities;

(c) an activity, including a business, that is carried on for direct or indirect gain or profit.

Importantly, the Regulation has expanded COVID-19-related civil liability protections from just essential services, to all for-profit businesses and certain non-profit businesses. The Regulation does not provide civil liability protections to private individuals in their personal lives.

For an entity or person to be protected under the Regulation, they must have been acting in accordance with, or had reasonable belief that they were acting in accordance with, all applicable emergency and public health guidance. Emergency and public health guidance is defined in the Regulation to include:

  • a COVID-19 provision;
  • a regulation made under the Emergency Program Act;
  • an instruction or order of a health officer, as defined in the Public Health Act;
  • guidelines of the British Columbia Centre for Disease Control;
  • guidelines of the Public Health Agency of Canada;
  • guidelines published on a website maintained by or on behalf of the government;
  • guidelines of a health authority;
  • guidelines of a regulatory authority or body having jurisdiction with respect to a person engaging in a prescribed act;

The Regulation also does not protect these entities from liability for gross negligence.

The Regulation will remain in effect until the COVID-19 Related Measures Act is repealed. Currently, the Act is slated to remain in effect for one year after its July 10, 2020 enactment date. Any civil liability protections gained under the Act and the Regulation will not be affected by the eventual repeal of the Act.

If you have any questions about this article, please contact Sari Wiens, Ilan BurkesNicole Toye or Jessica Fairbairn.

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan BurkesNicole Toye or Jessica Fairbairn.

To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.