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Dismiss COVID class-action lawsuit against Dr. Henry's orders, B.C. judge told

A government lawyer called the case an abuse of process and a waste of the court's time.
Dr. Bonnie Henry - April 25, 2020 2
Dr. Bonnie Henry during one of her COVID-19 press briefings. Photo: Province of B.C.

A government lawyer says a B.C. Supreme Court judge should dismiss a proposed class-action suit targeting provincial health officer Dr. Bonnie Henry and the provincial government for orders made during the pandemic.

Emily Lapper told Justice David Crerar the proposed case is an abuse of process and that the plaintiffs have not met the standard needed for it to proceed to a full trial.

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

Since the World Health Organization declared the COVID-19 outbreak a pandemic in March 2020, Henry issued orders designed to reduce the spread of the virus in B.C., including requiring proof of vaccination to enter a number of businesses. The so-called "vaccine passport" was in place in B.C. from September 2021 to April 2022.

All this week, Crerar has listened to applications of various kinds as well as evidence to determine if a class action is a suitable choice for the case.

Lapper said the society is part of multiple other cases advancing similar claims, making it an abuse of process. She said the risk in multiple cases is a waste of court time when other, different cases could be heard. She told the court multiple cases could result in different decisions and could create chaos.

“The defendants are asking this court to dismiss the certification application,” Lapper said, adding the entire action should be nixed.

So far this week, the plaintiff’s lawyer, Polina Furtula, has addressed how the government allegedly overreached in its use of emergency powers and that Henry’s orders were violations of constitutional rights.

What the plaintiffs want, she said Dec. 14, is a declaration that the government’s actions were wrong. She said her clients seek both vindication and deterrence from similar things happening in the future.

Court discussion has noted the case could hinge on whether or not the court thinks people's rights were justifiably and/or reasonably infringed for the greater good, a measure included in Section 1 of the Charter of Rights and Freedoms.

Crerar has heard more than four days worth of submissions from Furtula.

Lapper opened the government’s case on Dec. 16. She said Henry and her staff had to constantly keep up with what was happening with the progression of the virus, starting before containment measures began.

Lapper said that work included:

  • a constant review of local and international scientific and medical documents;
  • frequent meetings with public health officials across Canada, the United States and the World Health Organization;
  • extending, modifying or repealing orders as the pandemic shifted; and
  • providing frequent public briefings.

When Henry declared the pandemic an emergency in March 2020, Lapper said the doctor had to meet two of four criteria to make such a decision.

Those criteria involved the seriousness of the situation, the unusual or unexpected nature of the situation, risk of infection spread and significant risk of travel and trade restrictions.

All four were met, Lapper told the court.

Crerar heard that while Henry did not cite her reasons in every order, she referred back to the original decision each time.

It is the first such case involving a communicable disease in B.C., Lapper said, noting British Columbia is still dealing with not one but two health emergencies. The other is the opioid crisis declared in 2016.

While Lapper presented multiple affidavits to the court, she began with that of deputy provincial health officer Dr. Brian Emerson, a document that outlined the waves of the pandemic and responses.

The health of individuals is not the focus of public health officers, Lapper noted.

“The population is the patient in public health,” she said.

The affidavit also noted the involvement of regional medical health officers and health authorities in decision-making.

Lapper said none of those officers or authorities are named in the class action.

“Many of (the medical health officers) made orders during the pandemic,” Lapper said.

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