Canada: British Columbia's Occupiers Liability Act And COVID-19: What Business Owners Need To Know

The current COVID-19 pandemic has put pressure on businesses to navigate unprecedented challenges while continuing to meet their legal obligations to customers and the wider public. One of the most important obligations that business owners should be aware of is their duty to ensure the safety of their business' premises, even during the on-going pandemic. Recently, the British Columbia Provincial Government has released a ministerial order that provides important legal protections for certain businesses that continue to operate during the pandemic.

BC's Occupiers Liability Act

In British Columbia, the Occupiers Liability Act (“OLA”) outlines the legal obligations that occupiers owe to persons visiting their premises. An “occupier” under the OLA includes any person (i.e., an individual or a corporation) who (a) is in physical possession of the premises, or (b) has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises.¹ Importantly, there may be more than one occupier of a premises at any given time.

Under the OLA, an occupier owes a legal duty to take “reasonable care” that persons are “reasonably safe” while visiting the occupier's premises.² This duty applies to the (i) condition of the premises, (ii) activities on the premises, or (iii) the conduct of third parties on the premises.³ For example, an establishment serving alcohol may be held liable for failing to ensure a stairwell on their premises was adequately lit, resulting in a slip and fall by a patron, or failing to prevent an intoxicated third party patron from injuring another patron. The nature and extent of this duty are heavily dependent upon the circumstances of each case.

How does the Occupiers Liability Act apply during the COVID-19 pandemic?

Generally, the legal duties of occupiers under the OLA remains the same during the COVID-19 pandemic. However, on April 22, 2020 the Provincial Government issued Ministerial Order M120 (the “Order”), which limits certain legal liabilities related to COVID-19 for individuals or businesses that provide essential services during the pandemic. The Order replaces a similar Ministerial Order that was issued on April 2, 2020. The Order grants essential service providers immunity from damages that result “directly or indirectly, from an individual being or likely being infected with or exposed to SARS-CoV-2 as a result of the person's operating or providing an essential service”. The Provincial Government has designated a wide variety of businesses as essential service providers, such as grocery stores, restaurants (which are limited to take-out or delivery services), and banks. A complete list of essential service providers may be found in the Order as well as online here.

To qualify for the protections of the Order, a person must have been operating or providing the essential service in “accordance with all applicable emergency and public health guidance” or have reasonably believed that they were doing so. The Order defines applicable emergency and public health guidance as orders made under BC's Emergency Program Act, as well as orders, guidelines and instructions issued by various public health authorities at the Provincial and Federal levels. For example, a grocery store will not be liable for a customer being exposed to SARS-CoV-2 under the Order, provided that the store followed established public health protocols such as regular cleaning and disinfecting of the store's premises.

Importantly, the protections of the Order do not apply to a person that is “grossly negligent” in operating or providing the essential service. Gross negligence has been defined by the courts as a “marked departure from the ordinary standards by which reasonable and competent people generally govern themselves”.⁴

Consequently, businesses should determine whether they qualify as essential service operators/providers and are protected from liability under the Order. All businesses should ensure they remain up-to-date on the latest public health guidelines issued regarding COVID-19 to ensure they meet their obligations under the Order and qualify for its protections.

The Order will end on the date that the state of emergency declared by the Provincial Government is lifted.

What about non-essential businesses during the COVID-19 pandemic?

Businesses that provide/operate non-essential services and continue to operate during the pandemic should be especially mindful of their legal obligations under the OLA as the protections of the Order may not shield them from liability related to COVID-19.

Additionally, businesses that remain closed during the pandemic should continue to ensure that their premises remain reasonably safe despite their closure. For example, businesses may want to ensure that there are no materials that could pose a danger to passers by while their premises are closed, such as tripping hazards outside of their business.

As this is an unprecedented and evolving area of law, the extent of the occupier's duties will depend on the specific circumstances of each case. Business owners who are seeking further information and/or advice about the OLA and their legal obligations should not hesitate to contact us.

Footnotes

1. OLA, s. 1.

2. OLA, s. 3(1).

3. OLA, s. 3(2).

4. Kallenbach v. Vantage Property Services Inc., 2015 BCSC 423, at para 27.

Originally published 5 May, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.