Judicial Review Update – August

August 31, 2022 Yarmouth. It poured with rain on court day and driving was scary but our eagerness to get to our destination helped keep everyone focussed. We had a general idea of how the day was going to play out but were especially delighted to see the many supporters who came out to join the court session with us (it was a full courtroom!). There was great interest in the outcome of the day and many many people sent us messages of good luck and strength.

One of the first items to be addressed was the motion for Mootness which the Respondents had put forward in the hopes that it would be heard that day. Citizens’ Alliance and JM by his litigation guardian KM (CANS) had previously responded to the motion with a request to cross-examine the Respondents’ witness but had been informed that she would not be available. The Respondents suggested in their motion that CANS would have no need to cross-examine but the opportunity to question a high-level executive from the Department of Health is not one to be passed up. More on that to come at a later date.

Public Interest Standing (defined as a serious issue raised by a party with a direct or genuine interest and applicable where there is no reasonable and effective alternative for the issue to come before the court) was asserted by CANS. The Respondents suggested that their Mootness motion, if successful, rendered any assertion of Public Interest Standing irrelevant because the review would no longer be considered viable if it was declared moot. The main questions Justice Keith asked in response to the Respondents were around whether CANS was an incorporated entity and did it have the ability to bring suit into the court (both of which are correct); had standing been an issue, it would have been identified much earlier in the Judicial Review.

The Justice queried whether the principal ground for the Review is that the Orders and the protocols imposing the restrictions and Covid-vaccine mandates are ultra vires the HPA (this means that the Respondents acted outside of their jurisdiction and without proper authority), to which CANS’ counsel agreed. The second ground for the Review is that the Orders and protocols breach the Charter.

As part of the Motion for Directions, the Justice gave priority to mapping out a practical timeline for submission of and responding to motions as well as agreeing upon the next court date. The judge expressed concern around the length of time the Respondents have taken (and continue to take) to produce the record of evidence and materials used to justify the restrictions and Covid-vaccine mandates; CANS has yet to receive any part of this record which (according to the rules around time limitations) is due after 5 days of the initial filing of a Judicial Review (Nov 04, 2021 in this case) . Consequently the Respondents were ordered to produce the record by October 31, 2022 with the stipulation that anything omitted would have to be accompanied by a short explanation on why it is being omitted. This stipulation came about after CANS’ counsel expressed concern around the breadth and quality of the Record which the Respondents could limit using the April 2021 section 17 addition to the Health Protection Act allowing them to make any information they deemed so to be privileged.

All in all a very positive court session for CANS and we look forward in great anticipation to finally receiving the Respondents’ record at the end of October!