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The B.C. government has gone to extraordinary lengths to protect essential service providers from damages resulting from exposure to coronavirus.

A recent order under the Emergency Programs Act says you cannot sue most parties for regular negligence when the damages are directly or even indirectly related to COVID-19.

Essential services include a number of institutions, occupations, and service providers such as health care workers, law enforcement, and those who work with vulnerable populations like homeless shelters and food banks. The order immunizing essential service providers from liability related to COVID-19 is a significant and sweeping one – and rightly so.

The global effects of COVID-19 have been disruptive and debilitating to say the least. If not for this order, there could be endless litigation involving COVID-19 and actions (or inactions) taken by various parties during this pandemic.

However, the order very clearly draws a line in the sand when it comes to “gross negligence”.

What is gross negligence?

Generally, gross negligence has been described as more than ordinary negligence, “but less than criminal negligence.” There is no legislation that defines gross negligence, which makes identifying it difficult.

Legal precedent has defined gross negligence in a variety of contexts. In car accidents, gross negligence has been described as a “very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves.”

In the police context, gross negligence has been described as “an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken.”

Simply put, gross negligence is “a great negligence.”

Whether or not gross negligence has been committed is usually very contextual.

Generally, courts in the past have taken a narrow view of gross negligence, since in most cases ordinary negligence is enough for a harmed party to seek damages caused by a negligent act.

In our current scenario, the question becomes: What is gross negligence in the context of dealing with a pandemic?

Only time will tell, but it is clear that government bodies and affected parties are already anticipating litigation with respect to actions of essential service providers that may be considered grossly negligent.

When questioned about the deaths of 31 people at a care home in Quebec, Premier Francoise Legault said the action (or inaction) of the care home staff “looks a lot like gross negligence.”

Luckily, the common law’s definition of gross negligence is fluid. This allows courts to interpret its meaning within differing contextual situations.

It’s likely the courts will see quite a few cases of alleged gross negligence in months and years that follow this pandemic.

Questions to be answered include the duties of private essential service providers, and the standard of care owed to the general public in times of global crisis.

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