B.C.’s government exceeded its powers in its COVID-19 pandemic response, a lawyer for a proposed class-action suit told a B.C. Supreme Court judge on Dec. 13.
The lawsuit filed by the Canadian Society for the Advancement of Science in Public Policy, led by Kipling Warner, seeks to challenge and obtain compensation for various measures, mandates and restrictions imposed in response to the pandemic.
Provincial health officer Dr. Bonnie Henry is also named a defendant in the lawsuit.
The current hearings are an application for certification of the class proceeding. The judge hears applications of various kinds and evidence to determine if a class action is a suitable choice for the case, which can involve many people but are represented by what is known as a representative claimant.
Warner has been that claimant in this case, but a soon-to-be-heard application might change that.
Plaintiff’s lawyer Polina Furtula said the challenge revolves around whether or not the pandemic warranted having an emergency declared. She argues the provincial legislative conditions for an emergency declaration were not met.
She called the resulting response “disproportionate" and said the emergency measures were unwarranted as they did not meet reasonable public health objectives.
“We’re still in a state of emergency under the Provincial Health Act,” Furtula said.
The suit further claims British Columbia's government breached Canadian Charter of Rights and Freedoms rights protection from unreasonably infringed freedoms; freedom of conscience and religion; thought, belief, opinion and expression, including freedom of the press and other media of communication; peaceful assembly; and of association.
The purpose of this week’s hearings is to hear arguments about whether or not the case meets the criteria for it to proceed as a class action.
Since the World Health Organization declared the COVID-19 outbreak a pandemic in March 2020, Henry has issued several orders designed to reduce the spread of the virus in the province, including requiring proof of vaccination to enter several businesses like restaurants. The so-called "vaccine passport" was in place in B.C. from September 2021 to April 2022.
“At the height of the pandemic, moderation was unpopular,” Furtula told Justice David Crerar.
She said anyone not following the government line was “vilified as a conspiracy theorist" and that the media censored the voice of those who dissented against the government.
The result, Furtula said, was a polarization of society.
Furtula cited multiple past cases of the dangers of just doing what the government said was right, among them the internment of Japanese-Canadians during World War II, the confining of Indigenous children to Indian residential schools and the sterilization of Inuit women.
She called the list “endless and notorious.”
The province is expected to bring various applications to end the proceedings. One of those could be an abuse of process application, an argument based on the fact that Warner has tried to litigate similar issues in other proceedings.
Judge explains procedure
Speaking to the packed 120-seat courtroom, Crerar said he has not followed other COVID-related cases so he could "truly remain open-minded.”
Crerar explained it's not his role to make any findings of fact or determine if the actions of the public health officer “were good, bad or otherwise.” What the certification process determines, he said, is whether or not the case has all the elements needed under the Class Proceedings Act to move forward or to be ended.
He said 60 to 66 per cent of proposed class actions move forward.
Other COVID-related cases
B.C. Supreme Court Chief Justice Christopher Hinkson has already dismissed four separate challenges to B.C.'s vaccine passport program, one of which was brought by Warner and his society.
When the vaccine card program was introduced in September 2021, Henry received 800 reconsideration requests, largely based on opposition. Those requests “occupied significant time and effort” for Henry, leading her to dismiss them all, save for medical exemptions, in the variance order.
The hearings are being filmed, a rarity in B.C. courts, and should be available online on canlii.org.