Re-Opening The Economy ' Has The Standard Of Care For Business Changed?

• Published date: 25 May 2020
• Author: Jordan Hardy, Allison Graham and Bennet Misskey
• Subject Matter: Coronavirus (COVID-19), Government Measures, Litigation, Contracts and Force Majeure
• Law Firm: MLT Aikins LLP

COVID-19 Liability Series: The Effect of COVID-19 on Businesses' Obligations to Prevent Harm

As provincial governments begin to ease lockdown measures and slowly reopen their economies, business operations will not be returning to normal anytime soon.

The high risk of a resurgence of COVID-19 cases means that businesses are expected to take significant precautions to minimize the risk of transmission through implementing physical distancing and sanitizing requirements and ensure that their place of business is reasonably safe from a public health standpoint.

Prior to COVID-19, apart from food or health-related services, many businesses did not have to be concerned about the prospect of exposing others to the harm of an infectious disease. However, since the pandemic outbreak , the question will not be whether a business owes a duty of care to prevent the spread of this particular illness, but what standard of care they must adhere to in their particular circumstances. Failure of a business or service provider to meet the applicable standard of care could expose that business to liability for negligence.

This article will discuss how the standard of care expected of businesses has changed and what considerations every business should be mindful of in order to ensure they are taking sufficient precautions under the law to meet the new standard.

What is the Standard of Care?

Generally, the law requires a person to conduct him or herself in a way that avoids creating a reasonably foreseeable risk of harm towards others who are in a sufficiently close and direct relationship with that person.

What this duty specifically entails largely depends upon the level of skill expected of a reasonably prudent person acting in similar circumstances. For example, it is well-established that a physician could be found negligent for leaving a sponge in a patient during an operation since doing so was below the standard of care expected of a reasonably competent physician: Anderson v Chasney, [1949] 4 DLR 71 (Man CA), aff'd [1950] SCR viii. Similarly, an electrical contractor may be liable where it did not take steps to prevent a building fire while carrying out its contract: Magna Electric Corporation v Tesco Electric Ltd., 2015 SKQB 35, 469 Sask R 15.

To establish that a business breached its standard of care in a manner that was negligent, one must show: (a) what a reasonable person in the circumstances of that business would do; and (b) that the business did not do what...