BC government has exceeded powers in response to COVID-19, lawyer argues

The lawsuit aims to contest and obtain compensation for various pandemic measures, mandates and restrictions.

The BC government has exceeded its powers in its response to the COVID-19 pandemic, an attorney for a proposed class action lawsuit told a BC Supreme Court judge Dec. 13.

The lawsuit, filed by the Canadian Society for the Advancement of Science in Public Policy and led by Kipling Warner, seeks to challenge and obtain compensation for various measures, mandates and restrictions imposed in response to the pandemic.

The provincial health officer, Dr. Bonnie Henry, is also named as a defendant in the lawsuit.

The current hearings are an application for approval of the collective procedure. The judge will hear motions of various types and evidence to determine whether a class action is an appropriate choice for a case that may involve many people but is represented by a so-called representative plaintiff.

Warner was that plaintiff in this case, but a soon-to-be-heard application could change that.

Plaintiff’s attorney, Polina Furtula, said the challenge revolves around whether or not the pandemic warrants declaring an emergency. She argues that the province’s legal requirements for a declaration of emergency have not been met.

She called the resulting response “disproportionate” and said the emergency measures were unjustified as they fell short of reasonable public health goals.

“We are still under a state of emergency under the provincial health law,” Furtula said.

The lawsuit further alleges protection of the British Columbia Charter of Rights and Freedoms from liberties unreasonably violated; freedom of conscience and religion; thought, belief, opinion and expression, including freedom of the press and other media of communication; peaceful assembly; and the club.

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The purpose of this week’s hearings is to hear arguments as to whether or not the case meets the criteria for proceeding as a class action.

Since the World Health Organization declared the outbreak of COVID-19 a pandemic in March 2020, Henry has issued several orders to stem the spread of the virus in the province, including requiring proof of vaccination to enter several businesses, such as restaurants. The so-called “vaccination card” was in effect in BC from September 2021 to April 2022.

“At the height of the pandemic, moderation was unpopular,” Furtula told Justice David Crerar.

She said anyone who doesn’t follow the government line is “vilified as a conspiracy theorist” and the media censored the voice of those protesting against the government.

The result, according to Furtula, is a polarization of society.

Furtula cited several past cases involving the dangers of simply doing what the government saw fit, including the internment of Japanese-Canadians during World War II, placing indigenous children in Indian dormitories and sterilization by Inuit women.

She called the list “endless and infamous.”

The country is expected to bring various motions to complete the process. One of these could be an abuse of procedure, an argument based on Warner’s attempting to litigate similar issues in other cases.

Judge explains procedure

In the crowded 12-seat courtroom, Crerar said he hasn’t been following other COVID-related cases, allowing him to “really keep an open mind.”

Crerar said it was not his job to make findings of fact or to determine whether the medical officer’s actions were “good, bad, or otherwise.” What the certification process determines, he said, is whether the case contains all of the elements required under the Class Proceeding Act to move forward or be terminated.

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He said 60 to 66 percent of proposed class action lawsuits are moving forward.

Other COVID-related cases

Christopher Hinkson, chairman of the BC Supreme Court, has already dismissed four separate challenges to BC’s vaccination card program, one of which was brought by Warner and company.

When the vaccination card program was introduced in September 2021, Henry received 800 reconsideration requests, mostly based on objections. These requests “took a lot of time and effort” on Henry’s part, leading to her rejecting all of them, barring medical exceptions, in the derogation order.

The hearings will be filmed, a rarity in BC courts, and should be available online at canlii.org.

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