Alberta government faces class action for unlawful public health orders
Alberta government faces class action for unlawful public health orders

An Alberta law firm is putting the Alberta government on notice with a proposed class action lawsuit representing business owners affected by COVID-19 public health orders.

The proposed suit, filed by Rath & Company, follows the recent Ingram decision, where the Calgary Court of King’s Bench declared several of Alberta’s public health orders to have been unlawfully enacted, setting a precedent for potential financial redress for impacted businesses.

Lead counsel Jeffrey Rath said this proposal marks the first of many procedural and substantive steps. 

“This is an important case about government actions and overreach during a time when business owners were unlawfully mandated to close their businesses at a moment’s notice,” he said. “It will give Albertans the opportunity to hold the Alberta government accountable and seek fair compensation on behalf of the many businesses impacted by Deena Hinshaw’s many unlawful decisions.”

Hinshaw was Alberta’s chief medical officer through the pandemic until she was removed by Premier Danielle Smith in 2022.

The proposed class action lawsuit targets the financial losses for businesses in Alberta that were either fully or partially restricted due to the public health orders during the pandemic. Rebecca Ingram and Chris Scott are lead plaintiffs as business owners who suffered considerable financial losses as a result of these restrictions.

Owner of the Whistle Stop Cafe, Scott was previously accused of disobeying public health restrictions for refusing to close his restaurant at the height of the pandemic. He was acquitted following the Ingram decision, as the Crown no longer deemed Scott’s prosecution as sustainable given the precedent.

The proposed class action is still looking for representative plaintiffs to join. Business owners who were operational in Alberta from 2020 to 2022 and were impacted by the health directives are able to apply to join the class action. 

Rath explained that, if the class action proceeds, everybody affected by the claims at issue will be deemed to be in the lawsuit automatically unless they opt out to pursue legal action on their own.

“Our hope is that this lawsuit brings justice to the affected business owners who suffered significant hardship and losses without justification or consideration by the province’s harsh and unilateral actions,” said Rath. 

For a class action to move forward, court certification is required, a process that usually spans several years. A judge must determine that it is the appropriate legal avenue for the case and confirm that the plaintiff or plaintiffs are genuinely representative of a broader group.

The Alberta government’s lawyers are currently fighting the class certification, said Rath. He added that he didn’t know whether this was a knee-jerk reaction by Alberta government lawyers, or whether it comes from the premier’s office. 

“I think there’s a question of some nice nicety as to whether or not Danielle Smith wants to look all of the people that elected her in the eye and tell them that she does not stand for property rights in the province, and she thinks that people that lost their property and had their businesses destroyed by illegal COVID orders should suck it up and not look to the Alberta government for any relief with regard to actions taken by the Alberta government that were clearly illegal prior to Danielle Smith being elected premier,” said Rath.

Smith’s office did not respond to a request for comment from True North.

Constitutional lawyer John Carpay told True North that Rath’s lawsuit is worthwhile for holding the government to account for its misguided lockdown policies, which severely harmed small businesses in Alberta, some to the point of bankruptcy.

He added that many small business owners do not have the rich pension plans enjoyed by public sector workers, and that the bankruptcy filed by some business owners cost them their entire pension or retirement income. 

“Meanwhile, politicians, teachers, social workers, government employees, and others whose salaries are funded by taxpayers suffered little or no economic losses,” said Carpay, the president of the Justice Centre for Constitutional Freedoms.

The Ingram decision found that the public health orders implemented by Deena Hinshaw were ultra vires, or outside the law, regarding the Public Health Act. 

Carpay said that with public health orders having been declared invalid and illegal, this proposed class action appears to have merit.

“Presumably, the Alberta government will argue that governments should not be held financially liable for public policy decisions, even ones that are later declared to be illegal,” he said. 

During the first case conference on Wednesday, Alberta government lawyers expressed their intent to oppose the class action certification, according to lawyer Eva Chipiuk, who previously represented organizers of the Freedom Convoy before the Public Order Emergency Commission. 

If the plaintiffs win the class action and are awarded damages, the money will come from all taxpayers, perversely including the plaintiffs themselves, said Carpay. 

“How this will affect fiscal policy, in particular the amount paid for salaries of public sector workers, remains to be seen.” 

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