A group of parents seized the Court of King’s Bench of Alberta, challenging the Chief Medical Officer of Health’s Order 08-2022 which rescinded a previous order requiring masking in schools for grades 4 through 12.
The applicants submitted that the Order was ultra vires, made for improper purposes, and unreasonable. Furthermore, the applicants submitted that the Order violated sections 7 and 15 of the Charter of Rights and Freedoms, since it caused adverse effects on the health of children with disabilities, increasing the risk of contracting COVID-19 and depriving them of life, liberty, and security.
By decision no. 2203 04046 of 26 October 2022, the Court of King’s Bench of Alberta partially upheld the claims. First, the Court found that the Order was unreasonable because it was the result of an unreasonable interpretation of the Public Health Act. In particular, the Public Health Act requires that decisions regarding public health orders be made by the Chief Medical Officer of Health, or by an authorized delegate. In the case at stake, while the Order was issued by the Chief Medical Officer of Health, the order merely implemented a decision issued by the Priorities Implementation Cabinet Committee (PICC), rather than being the Chief Medical Officer’s own decision. Hence, the Court concluded that the Order should be annulled as a consequence of the violation of the Public Health Act. Hence the Court concluded that the Order was adopted ultra vires.
As per the alleged violation of the Charter’s rights, namely the right of health of disabled children, the Court found that the applicants failed to prove any of the children was at increased risk of severe outcomes or complications from COVID due to the implementation of the challenged Order.