A class-action lawsuit alleging the B.C. government overstepped its authority with COVID-19 health orders might be delayed if the B.C. Centre for Disease Control (BCCDC) needs to be added as a defendant.
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.
This week, Justice David Crerar is hearing arguments on an application for class-action certification. He is listening to applications of various kinds as well as evidence to determine if a class action is a suitable choice for the case.
Provincial health officer Dr. Bonnie Henry is named as a defendant in the lawsuit.
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.
On Dec. 12, plaintiff lawyer Polina Furtula said the challenge revolves around whether or not the pandemic warranted having an emergency declared. She the provincial legislative conditions for the declaration of an emergency were not met. She called the resulting response “disproportionate.”
The plaintiff’s amendments to the initial notice of civil claim, a document that starts a civil lawsuit, mention the issue of quarantine, Crerar heard Dec. 14. The quarantine issue is one to do with the BCCDC, said the defendant's lawyer, Emily Lapper.
The BCCDC came up when Lapper said Furtula had given an affidavit Dec. 14 with what appeared to be from the centre's website.
“This is highly prejudicial to the defence,” Lapper said, adding the BCCDC is a separate legal entity from the provincial health officer.
“They would have to be added as a party,” Lapper said. “The would need to be able to respond to certification.”
Furtula replied that the BCCDC is a part of the province and exists as an operational and scientific arm of the provincial health officer.
“In my submission, they’re one and the same,” she said.
Crerar, however, wanted to know the exact relationship.
Lapper said the BCCDC is a creation of the Provincial Health Services Authority, adding the authority had not been named as a defendant.
“That could be an issue,” Lapper said. “If we do have to add new defendants, we have to start certification over.”
Crerar wasn’t interested in that but said a non-party to the dispute might have to be allowed to participate. He said the plaintiff would have to provide particulars of the quarantine information.
“We will continue the certification hearing,” the judge said.
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.