Alberta case raises important questions on accountability for pandemic-related measures: law prof

By Ian Burns

Law360 Canada (July 13, 2022, 8:20 AM EDT) -- An Alberta judge has ordered the province to hand over documentation related to a decision to lift mask mandates in schools, despite the government’s protests that it should remain confidential.

The order from Court of Queen’s Bench Justice Grant Dunlop comes as part of a legal challenge of both the decision to lift the mandate and prohibit individual school boards from bringing in their own policies on masks. In his July 4 decision, Justice Dunlop ruled a PowerPoint presentation and minutes of a February 2022 cabinet meeting surrounding the decision must be provided to the plaintiffs in the case, despite Justice Minister Tyler Shandro issuing an order that they not be disclosed (CM v. Alberta 2022 ABQB 462).

“The implication [is] … the PowerPoint presentation and the cabinet minutes contain cabinet members’ statements or cabinet discussions or deliberations. They do not,” Justice Dunlop wrote. “The minutes set out decisions only, and no statements by or discussions or deliberations among cabinet members. The PowerPoint presentation contains information about COVID in Alberta and elsewhere in the world, with an emphasis on what other provinces were doing and experiencing and presents options for easing public health measures in Alberta. The PowerPoint presentation contains no statements, discussions or deliberations by individual cabinet members or cabinet as a whole.”

The lawsuit has been brought by the parents and litigation guardians of a number of children with disabilities who have been taken out of provincial schools as a result of the mandate being lifted and consists of two components — an application for a judicial review of the decision to issue the order, and an argument it infringes on the rights of the children to have equal access to education.

The province’s chief medical officer of health, Dr. Deena Hinshaw, was given until July 12 to provide the documents, pending an appeal or a stay. But Sharon Roberts of Roberts O’Kelly Law, who is one of the lawyers representing the plaintiffs in the case, said the province has decided not to move in that direction.

Paul Daly, University of Ottawa

Paul Daly, University of Ottawa

“The only person who had statutory authority to make decisions around health in the pandemic was the chief medical officer of health,” she said. “I think the precedent question here is who is the decision maker, and if it is not the chief medical officer of health, who is authorized to make the decision?”

Paul Daly, University Research Chair in Administrative Law and Governance at the University of Ottawa, said the role of provincial health officer is one of the major legal tensions arising from the COVID-19 pandemic in Canada.

“The cabinet-level materials in this case suggest that the health officer was not exercising her functions properly — i.e., she was implementing government policy rather than making decisions based on public health best practice,” he said. “Whatever one’s view of Canada’s pandemic response, this raises important questions about accountability for pandemic-related measures.”

The decision is also important in that it highlights the idea that cabinet-level materials do not benefit from any general protection against non-disclosure, said Daly.

“The public interest in the accurate administration of justice will often outweigh the potentially negative consequences of releasing cabinet-level materials,” he said. “This is subject, of course, to the caveat that releasing materials should not compromise cabinet’s ability to freely discuss matters of policy — generally speaking, however, the release of materials provided to cabinet will not compromise cabinet’s ability to freely discuss matters of policy.”

Provincial representatives did not respond to a request for comment.

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