UPDATED AS OF AUGUST 28th 2020
As many of you know, your Mission Sports Council has been quite concerned about the General Liabilities facing the Directors, Executives, Coaches, Officials, Volunteers and Employees of our Local and Provincial Sports Organizations, as it pertains to COVID-19 and especially in light of many insurance policies specifically excluding liability for COVID-19 related claims. We have been pushing hard to have this addressed as we do not feel it is right for us to put our personal assets on the line – knowingly or unknowingly – because someone doesn’t want to follow the rules or figures they can make a quick buck.
As some of you may remember, although we were happy that the Province implemented Ministerial Order 183 early on in this pandemic, we were concerned it did not go far enough and that it was only in place so long as the State of Emergency remained in place. On July 8, 2020 the Provincial Government approved the COVID-19 RELATED MEASURES ACT and on August 6, 2020 they approved an Order in Council No. 459 which collectively go much further in addressing our concerns. That said, we still have a couple of concerns and please remember, we are not lawyers so we are not providing legal advice and we may be overlooking other areas of concern but we have referred regularly to Harris & Company LLP for general legal interpretations.
First and foremost, as acknowledged in Harris & Company’s break down of Order in Council No. 459, “The Regulation also does not protect these entities from liability for gross negligence.” The million-dollar question then is “What qualifies as gross negligence?” More to the point, what will it cost the sued parties to defend themselves to prove they were not grossly negligent. As we have said many times, we are not as concerned with people winning or losing a lawsuit as we are with the Directors and other involved parties – Volunteers and/or Employees – having to hire a legal defense team and the costs associated with doing so, that will be in the tens of thousands of dollars and could easily end up in the hundreds of thousands of dollars, for which there is no compensation or recovery mechanism. It will be incumbent upon the Sports Organizations to ensure everyone involved is clear on the plan and is wholeheartedly prepared to follow and defend the plan as all it will take is one person’s lapse in judgment to potentially open the whole group up to a bad situation. We would recommend each Organization spells out the consequences for anyone breaching the Organizations Return to Sport Plan, directly in the Return to Sport Plan and then be sure it is enforced as written.
The second issue we have is that the Order in Council No. 459 is set to expire one year after its enactment date of July 10, 2020. This does not mean you can then be subject to liability for things that have happened in the interim, but what it does mean is that if the Order is not renewed and the insurance companies have not volunteered to remove their exclusions like the one found here, we are right back to where we started from. It is highly unlikely the insurance companies will remove their exclusions at least until after COVID-19 has been deemed eradicated which is not likely to happen within the next 10 years, never mind the next 10 months.
As we have said many times before and bears repeating, although we still see issues that need addressing, we commend the management and staff in the Ministry of Tourism, Arts & Culture which is also responsible for Sport, WorkSafe BC, the Attorney Generals office, the office of the Ministry of Public Safety and Solicitor General and viaSPORT BRITISH COLUMBIA for the exhaustive work they’ve done getting us to where we are at, with respect to Return to Sport. Although we believe there are things that could have and will yet need to be included in Legislation or Regulations, in no way should our comments and concerns be construed as criticism of the hard work that has been done to date. Nobody has a crystal ball, nor did anyone take COVID-101 training when they were elected or hired to fulfill their position. Like most things COVID-19 related, each of you have been drinking from the business end of a fire hose to come up with policies to resolve what is sitting in front of them, then having to deal with the unintended consequences as they come up.
We would also like to thank Harris and Company LLC for breaking the legalese down into easy to read and understand language. As a Not-For-Profit Sports Council, we do not have the funding to get legal opinions or to request interpretations, so again, thank you for all you have done.