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A number of Alberta citizens and churches filed suit challenging several orders enacted by the Chief Medical Officer of Health for Alberta (CMOH), Dr. Deena Hinshaw, with respect to the COVID-19 pandemic. These orders imposed private residence restrictions, indoor and outdoor gathering restrictions, isolation, quarantine and visiting restrictions, business closure restrictions and primary or secondary school restrictions.

The plaintiffs argued that the impugned orders were unconstitutional and ultra vires because, contrary to statutory requirements, the decisions had been made by the provincial cabinet and/or committees of cabinet and not by the CMOH. Indeed, the Public Health Act required that decisions with respect to public health orders must be made by the CMOH or her statutorily-authorized delegate, not by the cabinet.

By judgment of 31 July 2023, the Court of King’s Bench of Alberta partially upheld the application filed by the plaintiffs, and particularly the claim related to the ultra vires nature of the challenged orders. The court noted that the clear intention of the Public Health Act was that the orders of the CMOH be based on the judgment of the CMOH (who must be a physician with either a certificate, diploma, or degree in public health), not on politicians’ judgment. However, in the instance case “the final decisions implemented by the impugned Orders [...] were made by the cabinet of the government of Alberta or by committees of cabinet. While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned Orders, she deferred the final decision making to cabinet”. “This involvement should have been structured in such a way as to mitigate the risk of political priorities interfering with the informed and well-qualified judgment of the CMOH, as provided in the Public Health Act, without ignoring the underlying public interest”, the court found.

Even though the Court concluded that the challenged orders were ultra vires, it decided to analyze also the constitutional claims raised by the plaintiffs, deeming it “important to consider these issues in the event that [it was] incorrect about the Public Health Act issue”. In this respect, the Court, albeit acknowledging that the challenged orders were onerous and may have infringed certain of the plaintiffs’ rights under the Charter of Rights and Freedoms, held that they were “amply and demonstrably justified as reasonable limits in a free and democratic society [...] and that they were enacted pursuant to a valid legislative purpose”.

Reference: Ingram v Alberta, Court of King’s Bench of Alberta, 31 July 2023.

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