Recently a restaurant in Hope, British Columbia gained some notoriety for refusing to enforce the vaccine passport. This was a contravention of the Food and Liquor Serving Premises Order, which requires operators of restaurants, gyms and indoor ticketed events to ensure their patrons are vaccinated. Unsurprisingly, the restaurant had its business and liquor licenses suspended.
Refusing or neglecting to check vaccine passports gives rise to discipline from public authorities. However, the consequences are not limited to the realm of public law; there can be private law consequences for operators as well.
In British Columbia, property owners and occupiers can be held responsible when a person is injured on their property. This is governed by the Occupiers’ Liability Act. Under the Act, an occupier must ensure their property is reasonably safe. An occupier will not be liable simply because somebody was injured on their property. Instead, the injured party must demonstrate that there was a hazard on the property. If it is found there is a hazard on the property, the onus shifts to the occupier to demonstrate they took reasonable steps to address the hazard .
Could a restaurant operator, or other occupier, be held liable under the Act for failing to take reasonable steps to address COVID-19? The answer is likely yes. Similar proceedings have already occurred in Alberta, where a class action was filed against a Calgary restaurant for failing to ensure adequate COVID-19 safety protocols were in place at the premises.
However, the legal landscape in British Columbia makes it more difficult to start such a claim in our courts. The British Columbia government issued Ministerial Order M120, which limits legal liability related to the COVID-19. The Order ensures that most business operators in British Columbia are not liable for damages resulting from an individual being infected with COVID-19 on their premises. This order enabled businesses to remain open during the pandemic without the constant risk of liability should one of their guests contract COVID-19.
This immunity has two important caveats. First, to qualify for this immunity, the business operator must have been following all applicable emergency and public health guidance, or at least reasonably believed that they were. Notably the caveat does not require strict compliance; an operator’s reasonable belief in compliance is sufficient. However, recklessness, wilful blindness or intentional disregard for COVID-19 safety will open an operator up to liability. While there is currently no case law applying this caveat, one can reasonably assume that intentionally not checking vaccine passports would not fit within the definition of “reasonable belief” in compliance.
The second caveat to immunity is gross negligence. An operator who is grossly negligent in providing their service is not granted immunity from COVID-19 liability. Gross negligence is generally considered to be a significant departure from the applicable standard of care.
Coverage Issues
As a practical concern, if plaintiffs wish to sue for damages related to contracting COVID-19, plaintiffs will need to circumvent this immunity provided to many businesses in British Columbia. The most obvious solution is for plaintiffs to plead the occupier’s conduct was grossly negligent in relation to its handling of COVID-19.
Such a pleading will raise insurance coverage issues for the defendants. Many commercial general liability policies have exclusion clauses for conduct that is grossly negligent. If a defendant faces allegations of gross negligence, its insurer may not have a duty to defend or duty to indemnify, resulting in a denial of coverage.
In some situations, this will not only be an undesirable outcome for the defendant, but for the plaintiff as well. If the plaintiff is unable to have its claim paid out by the insurance company, the chance of recovering any judgement or obtaining a settlement may decrease. This is especially true if the defendant is a small company with limited assets. This puts plaintiffs in a delicate position with their pleadings; they will need to plead that the immunity granted under Ministerial Order M120 does not apply, but not plead conduct that might result in the defendant’s insurer denying coverage.
In conclusion, all occupiers in British Columbia should be diligent in their application of COVID-19 safety procedures. Failing to do so unnecessarily exposes one to legal liability. Intentional disregard for COVID-19 safety policy could result in a one-two punch of liability: being sued for breach of the Act, and being declined insurance coverage to defend the claim.