Canadian Society for the Advancement of Science in Public Policy

108 - 2115 Cypress Street

Vancouver, BC V6J 3M3

Attn: Manager, Supreme Court Scheduling

Vancouver Law Courts
800 Smithe Street
Vancouver, BC V6Z 2E1

BY EMAIL: sc.civil_va@courts.gov.bc.ca
BY FAX: 604-660-0623

14 January 2022

Re: Facilitating public access to hearings

CSASPP v. HMTQ et al., BCSC, Reg No. S-210831

Dear Supreme Court Scheduling Manager,

My name is Kip Warner and I am the Executive Director for the plaintiff in the above style
of cause. I am writing you with leave of Justice Crerar from his chamber judgment of 28
October, 2021. I have enclosed a copy of His Lordship’s judgment and direct your attention
to the salient paras. 52-53.

At the aforementioned hearing we sought the Court’s leave to improve public access to our
proposed class proceeding. We have thousands of people who wish to attend our hearings
with that number growing on a daily basis. A viable solution must take into account the
following constraints:

I. The general public must be automatically muted and remain muted so as to not disrupt
the hearing;

II. Access must be simple that the general public should not need to install or configure any
proprietary software;

III. The solution must have a reasonable upper limit on the number of concurrent virtual
attendees. A hundred, indeed even a thousand, is not adequate;

IV. The solution must be cost effective and not be an administrative burden to your staff;
V. The solution must be cognizant of the spirit of the Policy On Use of Electronic Devices in
Courtrooms;

VI. The general public must be given notice of the aforementioned and that recording any
portion of the proceeding is not permitted;

VII. The solution must not require the general public to depend on precarious details that may
change a few minutes prior to a hearing, such as the dial-in number. This has happened
already with my staff unable to provide adequate notice.

If the dial-in changes, it is better that few are affected and take appropriate action
immediately rather than every attendee and lose the majority of them in the process.

I have discussed the situation with our Director of IT, Mr. Zubin Parihar. We would like to
propose our plan to facilitate public access that reconciles all of the above constraints.

Mr. Parihar has advised that we can provide a static URL to the general public that uni-
directionally streams our hearings live via YouTube or a similar platform. We would not make
the stream available for offline use because we would not archive the recording. Further, we
would advise virtual attendees of the usual relevant rules of Court regarding the usage of
electronic devices.

Mr. Parihar would dial-in to the teleconference and in turn route the audio (and video, if
available) to the digital platform. This ensures the dial-in platform does not become over
saturated with callers such that attendees are unable to access our hearings again.

Every time that happens an issue may potentially arise of the general public’s constitutional
right to an open court. Remember that what “open” meant to a reasonable person in 19th
century Victorian England is not the same as today. This is a far more practical, modern, and
economical solution than continuing to rely on a 19th century telephone switching system in
the 21st century.

We would like to begin implementation in time for our upcoming 21 January, 2022, Judicial
Management Conference and for all subsequent hearings in this proceeding. We will provide
the public with notice in the usual course through our website and social media platforms.
No action will be required on your part, other than to provide us with the dial-in coordinates
for Mr. Parihar as soon as they become available.
Please let us know if you are amenable as soon possible.

Yours truly,

Kip Warner, Executive Director

Canadian Society for the Advancement of Science in Public Policy (CSASPP)

KCSW/kcsw

cc: – Zubin Singh, CSASPP Director of IT, by email to zparihar@gmail.com;

– Polina Furtula, plaintiff counsel, by email to pfurtula@citadellawyers.ca;
– Phil Dougan, plaintiff counsel, by email to pdougan@citadellawyers.ca;
– Jacqueline Hughes, defence counsel, by email to jacqueline.hughes@gov.bc.ca;
– Emily Lapper, defence counsel, by email to emily.lapper@gov.bc.ca;
– Steven Davis, defence counsel, by email to Steven.Davis@gov.bc.ca.
encl:
• Oral Reasons for Judgment of the Honourable Mr. Justice Crerar, 28 October, 2021.
 IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Canadian Society for the Advancement of

Science in Public Policy v. British
Columbia ,
2021 BCSC 2168
Date: 20211028
Docket: S210831
Registry: Vancouver

Between:
Canadian Society for the Advancement of Science in Public Policy
Plaintiff

And

Her Majesty The Queen in the Right of the Province of British Columbia
and Dr. Bonnie Henry in her capacity as Provincial Health Officer
for the Province of British Columbia
Defendants

Before: The Honourable Mr. Justice Crerar

(appearing by videoconference)

Oral Reasons for Judgment

In Chambers

Counsel for the Plaintiff: P.H. Furtula

Counsel for the Defendants: E.C. Lapper

S.A. Davis

Place and Date of Hearing: Vancouver, B.C.

October 28, 2021
Place and Date of Judgment: Vancouver, B.C.
October 28, 2021
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 2
I. INTRODUCTION

[1] THE COURT: These are my oral reasons for judgment in this matter. I make
the usual reservation to revise and edit these reasons if a transcript is ordered or for
any other reason.

[2] The defendants in this proposed class proceeding bring this application under
Rule 3-7(22) that the plaintiff provide further and better particulars, that is, details, of
two paragraphs in its amended notice of civil claim filed September 15, 2021.

[3] I am the designated case management judge for this proposed class
proceeding. In earlier case management conferences we have set out a detailed and
tight timeline for the closing of pleadings, leading up to the eventual certification
hearing. As I have advised the parties earlier today, given the tight deadlines, I am
going to deliver these abbreviated oral reasons for judgment now, so as not to delay
the process of finalising the pleadings.

[4] The plaintiff proposes to bring a class proceeding challenging various

government measures enacted with respect to the COVID-19 pandemic. The claim
names as defendants Her Majesty the Queen in Right of British Columbia and
Dr. Bonnie Henry in her capacity as Provincial Health Officer for the Province of
British Columbia.

[5] Part 3, paragraphs 1 to 3 of the amended notice of civil claim, summarises its
the plaintiff’s claim as follows:

1. The defendants have failed to establish the legally binding conditions

necessary to declare a state of emergency and erred in concluding that the
criteria for declaring an "emergency" were satisfied under the [Emergency
Program Act] and [the Public Health Act].

2. The continued state of emergency is disproportional and unnecessary

to deal with the nature of the problems posed by COVID-19.

3. In the alternative, if the conditions under which the defendants could

declare a state of emergency did exist in March 2020, such conditions no
longer existed after May, 2020 and did not warrant the continued renewal of a
state of emergency in British Columbia past May 2020.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 3
[6] I will not recount the entire procedural history of this matter. The key dates
are:

 The plaintiff filed its notice of civil claim on January 26, 2021.

 The defendants filed their response on March 31, 2021. In that that response,
the defendants specifically alleged various frailties in the claim, including the
lack of material facts to support the causes of action.

 Accordingly, on August 17, 2021, the defendants served their initial demand
for particulars on the plaintiff, demanding 11 categories of particulars.

 The plaintiff responded to that demand just under two weeks later: on August
30, 2021.

 On September 15, 2021, the plaintiff filed its amended claim.

 The defendants served the plaintiff with a further demand for particulars soon
thereafter: on September 27, 2021. This second demand for particulars
sought a further 15 particulars.

 The plaintiff delivered its response to the September 27th demand on October
12, 2021.

[7] As indicated, those demands for 26 sets of particulars have been winnowed
down now to an application for two sets of particulars. This in itself indicates that the
plaintiff has been generally responsive to these demands for particulars.

II. LAW

[8] The parties are not significantly at odds on the legal principles governing the
application. I will start with the principles on which agree, before proceeding to the
two primary points on which they disagree.

[9] Under Rule 3-7(22), the court may order a party to serve further and better
particulars of a matter stated in a pleading.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 4
[10] The leading case with respect to particulars is Cansulex v. Perry, [1982]
B.C.J. No. 369 (C.A.), which sets out six functions of particulars, and six bases for
why a court may order particulars:

(1) to inform the other side of the nature of the case they have to meet as
distinguished from the mode in which that case is to be proved;
(2) to prevent the other side from being taken by surprise at the trial;
(3) to enable the other side to know what evidence they ought to be
prepared with and to prepare for trial;
(4) to limit the generality of the pleadings;
(5) to limit and decide the issues to be tried, and as to which discovery is
required, and;
(6) to tie the hands of the party so that he cannot without leave go into
any matters not included.

[11] I pause here to note that an application for particulars is not an application of
the strict laws of pleadings. As one can see from the six principles or bases for
particulars, it is a practical inquiry, allowing the court to exercise its discretion to
order particulars where justice, fairness, and efficacy make it suitable that particulars
be ordered.

[12] That said, the court does not have complete discretion to order particulars. By
G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1993), 79 B.C.L.R. (2d)
126 (B.C.S.C.), the broad test for the exercise of discretion is whether those
particulars are "necessary".

[13] I have been provided authorities as to the meaning of "necessary." Although

there are authorities which indicate that "necessary" is a strict term, by an equal
number of authorities, and certainly in practice, "necessary" is an elastic and broad
term, as must be applied with an eye to the six principles and bases for particulars
set out in Cansulex.

[14] With respect to the form of order for particulars, the court also has broad
discretion. In Cominco Ltd. v. Westinghouse Canada Ltd. (1978), 6 B.C.L.R. 25
(S.C.), the court sets out three options for the court:

1. That particulars should be ordered immediately;

Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 5
2. That particulars should be delivered after discovery; or

3. The court may determine that sufficient particulars have already been given.

[15] A plaintiff is generally only required to provide particulars that are within their
knowledge at the time of the order. This is particularly important in a case such as a
fraud claim where the victim of a fraud, the plaintiff, may not know the full details of
the dates and the methods and the amounts that have been taken from them. This
principle is relevant in other contexts as well: where there are internal decisions and
actions of, for example, a government, an ordinary citizen plaintiff will not normally
know the full particularity of what has occurred.

[16] I now turn to the primary points of disagreement between the parties on the
legal principles.

[17] The defendants cite Hoy v. Medtronic Inc., 2000 BCSC 1902, where the
chambers judge, hearing an application for particulars in the context of a proposed
class proceeding stated:

6 There is no question that, in an application to certify a class action, the

particulars of the claim are significant because the court is required to assess
the suitability of the action as a class action. As I noted in L.R. v. Her Majesty
the Queen in Right of the Province of British Columbia, [1998] B.C.J.
No. 2588, (30 October 1998), Vancouver No. C980463 (B.C.S.C.) at
para. 23:
...That exercise requires information traditionally supplied
through particulars - the nature of the case and issues to be
tried - as well as whether, in the words of s. 4(2)(a) of the Act,
"questions of fact or law common to the members of the class
predominate over any questions affecting only individual
members." That assessment cannot be made in an information
vacuum.

[18] The plaintiff, however, cites a more recent decision: Kwicksutaineuk/Ah-Kwa-

Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2009
BCSC 1593. In Kwicksutaineuk, the Queen in right of the Province and in right of
Canada sought particulars from the plaintiffs on a variety of subjects. Justice Slade
considered whether the general principles of ordering particulars are affected by the
class proceeding context. At para. 44-45, His Lordship said:
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 6
[44] In light of these statements of principle, in my view it is clear that the
Cansulex factors and the traditional approach for ordering particulars under
Rule 19 must be applied with due regard to the nature of an intended class
proceeding, keeping in mind that a certification application is not a trial
of the action on its merits.

[45] Accordingly, the question in the present matter is not whether a

further statement of material facts may be necessary in order to prepare for
trial. As this is a proposed class proceeding, the question is whether the
certification materials, which include the Statement of Claim, provide
the defendants "… with sufficient information so that it understands, at
least in broad strokes, what the plaintiff’s case is about. . . .

[emphasis added]

[19] At para. 46, Justice Slade quoted from Bellan v. Curtis, 2007 MBQB 221,
where the Manitoba Court of Queen’s Bench dismissed the defendant's
pre-certification application for particulars:

In Bellan, Hanssen J. dismissed the defendants’ pre-certification application

for particulars, noting that anyone who read the pleading would
understand what the case is about, and that the risks an inadequate
pleading or evidentiary basis may present at a certification hearing are
borne by the plaintiff:
[22] The level of detail they are requesting is not required for the
certification process. Any additional information required for the
certification motion can be provided by affidavits filed in support
of the motion and any cross-examinations on them. If Bellan
fails to provide sufficient information, the class action will simply
not be certified.
…
[24] Under the circumstances, at this stage of the proceedings,
it would not be in the interest of judicial economy to put Bellan
through the extensive effort and expense of providing the
voluminous particulars these defendants are requesting. Indeed,
if the action is not certified the result would simply be a waste of time
and money.
[emphasis added]
[20] I highlight that the plaintiff bears a risk at a certification hearing of an
inadequate pleading. In other words, it is the plaintiff's strategic decision to go light
on particulars. It may well be, paradoxically, in the interests of the present
defendants that the plaintiff continue not to provide particulars: that lack of detail will
be one of the items that the defendant will no doubt highlight to the judge who is
tasked with assessing the appropriateness of the action as a class proceeding.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 7
[21] The last key point I would draw from Kwicksutaineuk is found in para. 48,
where the Court noted that developments after Hoy now require a plaintiff in a
proposed class proceeding to provide at the certification hearing affidavit evidence of
the elements required under the Class Proceedings Act, RSBC 1996, c 50, s.4. At
the time of Hoy, pleaded particulars were of greater importance than they are today
in determining whether a class proceeding would be appropriate.

[22] The later decision in Kwicksutaineuk is thus the one that will guide the Court
today.

III. DECISION

[23] I turn to the two specific paragraphs in the amended notice of civil claim of
which the defendants seek particulars.

[24] The first is para. 44 of Part 1 of the claim:

44. In addition, the defendants have obstructed or discouraged licensed

physicians and other treatment providers licensed under the Health
Professions Act R.S.B.C. 1996, c.183 from advocating modalities or therapies
with respect to the clinical approach in treating COVID-19 and related
diseases, despite the physician having independently undertaken reasonable
review of the scientific literature, that may improve a patient's immune
system, reduce the potential negative outcome of a viral infection, and
potentially accelerate the time required for recovery.

[25] The particulars sought by the defendants are as follows:

i. which employee(s), representative(s), and/or agent(s) of the Province

are alleged to have “obstruct[ed] or discourage[d] licensed physicians and
other treatment providers…from advocating modalities or therapies with
respect to the clinical approach in treating COVID-19 and related diseases " .
..
ii. the acts, statements or other conduct by which the Province and the
[Public Health Officer], or either of them, are alleged to have “obstruct[ed] or
discourage[d] licensed physicians and other treatment providers…from
advocating modalities or therapies with respect to the clinical approach in
treating COVID-19 and related diseases " . . . including, without limitation:
1. the date the act or conduct occurred, or statement was
made; and
2. if the alleged obstruction was made by way of a
statement, whether that statement was made orally or in
writing;
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 8
[26] The defendants argue that para. 44 alleges a broad range of communications
made by a large organisation, that is, the Province of British Columbia. The
defendants note that the Province and the Public Health Officer have made many
public statements and instructions since the outset of the COVID pandemic in March
2020, and also point to private and direct communications that may have occurred.

[27] Accordingly, with an eye to the Cansulex principles, to focus the issues and to
allow the Province to properly investigate and locate documents and evidence, to
respond to the claim, and then, to respond to discovery demands, it is necessary
that the plaintiff identify and provide greater detail of these alleged statements by
representatives of the defendants.

[28] In response, the plaintiff argues that there is a knowledge imbalance: it

cannot be called upon to provide particulars of communications about which it does
not know, and that it would be premature to order these particulars.

[29] The plaintiff also argues that it has had already provided sufficient material
facts with respect to the alleged obstruction.

[30] But material facts are distinct from particulars: Sidhu v. Hiebert, 2018 BCSC
401 at para. 36. Nor does the plaintiff’s response address the multiple purposes of
particulars, as summarised in Cansulex. Even where sufficient material facts have
been pleaded, particulars may be ordered based upon the six Cansulex factors.

[31] With an eye to Cansulex, it is necessary for the plaintiff to provide particulars
of paragraph 44, so that the defendants can get to work in investigating various
specific communications, and interviewing various government officials, and in
gathering documents connected with those communications.

[32] It is indeed in the best interests of the plaintiff to provide those particulars,
insofar as they are presently known, to the defendants.

[33] The plaintiff need only provide those particulars presently known: for now, it
need not provide particulars beyond those presently known.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 9
[34] I note that the plaintiff's own affidavit references and attaches some
communications it says fall under this category. The plaintiff thus presently knows
some of those alleged communications, and is in a position to provide particulars of
at least those communications. It may be that the only particulars the plaintiff can
presently provide is a list of those specific communications. It may simply be a
matter of copying those from the affidavit and summarising them in the response. If
the plaintiff is aware of further communications, it must particularise those as well.

[35] To summarise, the plaintiff shall provide the particulars sought by the
defendants (including the specific particulars of which employees, representatives,
agents, dates, conduct, etc.), but only insofar as they are presently known. If there
are further communications that are discovered later, either after discovery or after
further investigations by the plaintiff, the plaintiff must provide those particulars at
that stage.

[36] Again, I emphasise that it is in the plaintiff's best interests to provide these
particulars presently, not only because it will no doubt result in speedier discovery
that they will benefit from, but also, as noted in Kwicksutaineuk, an unparticularized
claim will likely weaken the plaintiff's case at a certification hearing.

[37] Before I leave paragraph 44, I will repeat on the record some of the
assurances provided by the Province with respect to the particulars.

[38] First, the fact that a specific particular of a specific communication or

obstruction has not been provided will not prevent the plaintiff from asking a more
general discovery question on that topic.

[39] Second, the Province emphasises that the defendants are not seeking
particulars of the individual healthcare providers who apparently received these
communications from agents and employees of the defendants. In other words,
potentially sensitive, confidential information about specific doctors whose livelihood
and professional standing might be threatened by the disclosure of specific
communications will not be upset by the present order.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 10
[40] That said, I will repeat my earlier observation, in the course of argument, that
there is no general principle of confidentiality in litigation: if the plaintiff wishes to
prove any of these allegations at trial, those individual healthcare practitioners,
insofar as the plaintiff is relying upon their evidence, will have to come forward and
provide their names and testify in a public court of law.

[41] The defendants also seek particulars of subparagraph 58.c., which alleges
that the Provincial Health Officer is in violation of the Hippocratic Oath.1

[42] The defendants seek particulars of the individuals alleged to have suffered
harm as a result of the Public Health Officer's alleged breach of the oath. The
defendants argue that the plaintiff bears the onus to prove whether and how those
individuals suffered injury.

[43] I decline to order these particulars at this time. This is a proposed class
proceeding. We do not know the identities of the individuals alleged to have suffered
harm in their status as parties, let alone as particularized facts in the notice of civil
claim. That of course is the norm in a proposed class proceeding. One proposes a
class proceeding on behalf of a potentially large number of unnamed plaintiffs who
have hypothetically suffered harm due to the alleged actions of the named
defendants. The individuals are not fully known or listed until after certification and,
indeed, generally after trial.

[44] Even if I were to grant this order, the plaintiff’s response would likely simply
cross-reference para. 8 of the claim:

8. This action is brought on behalf of members of the class consisting of

all persons residing or doing business in British Columbia who, since on or
after March 17, 2020, have suffered personal injury or other damages as a
result of the actions of the defendants in declaring a state of emergency
pursuant to the [Emergency Powers Act] and Part 6 of the Public Health
Act . . .

[45] The plaintiff would no doubt then also point to the proposed subclasses set
out in para. 8.
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 11
[46] I am not aware of any case in a class proceedings context where such an
order has been granted, and no authority has been provided to me by the applicants.
I decline to make that order today.

[47] With respect to timing, the defendants were seeking an order that particulars
be provided by November 5th. I will nudge that deadline to 4 p.m. on November 8th.
That will allow the plaintiff to thoroughly review its files and provide the most full
particulars that it can with respect to para. 44.

[48] Neither party has sought costs. Success has been divided in any case. No
costs are ordered.

[49] Anything else arising, counsel?

[50] [DISCUSSION OF SPECIFIC TERMS OF ORDER]

[51] CNSL P. FURTULA: Thank you, My Lord. As I mentioned at the beginning of

the hearing, we would like to seek leave of -- or your permission for our client to
work with the communications department to establish a protocol so that more
members of the public are able to listen in on these hearings. The next time that we
are scheduled to have a hearing is in June of 2022, and as the number of interested
members of the public is steadily growing, in terms of this action, we would like to
provide some alternatives to the communications department, and certainly for you
to review, so that we can avoid the types of issues we had at the beginning of
today's hearing.

[52] THE COURT: Yes, certainly. I give you leave. I cannot and I will not
micromanage that process, but I give you leave to make inquiries with the Registry
about having greater access. I seem to recall that in earlier hearings we were able to
have more ears on the phone than the hundred people we apparently have today.2
As you know, at every hearing in this matter I have granted leave for members of the
public to listen to the proceedings through a phone-in line. This is not at all a typical
order, and is a generous order. That said, allowing such broad access will be likely
be my default inclination going forward. This dispute does have a public dimension. I
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 12
agree that it is useful for the public to hear the submissions being made and hear the
reasons that are given. So you have leave to make inquiries with the Registry with
respect to greater remote access.

[53] Madam Registrar: if I can direct this at you. Could a note be sent to the
Registry requesting that the hearing during the week of June 20, 2022, be heard in
one of the larger courtrooms.

[54] THE CLERK: I will include that in my notes to trial scheduling, My Lord.

[55] THE COURT: Thank you very much. Ms. Furtula, anything else?

[56] CNSL P. FURTULA: No, that's it, My Lord, thank you very much.

[57] THE COURT: I thank counsel for their competent submissions. I hope that we
can proceed to the June hearing without need for further applications. With the
greatest of respect, as you can probably tell from this mixed outcome and from some
of my comments, I did not think that this hearing was necessary. For the plaintiff's
part, it would have been strategically sound to just provide those particulars and not
take a technical approach. With respect to the defendants, I make the observation
that strategically it may be more sound not to demand particulars, and thereby give
an open invitation to the plaintiff to strengthen its case. Thank you.

[58] CNSL P. FURTULA: Thank you, My Lord.

“Crerar J.”

1 The plaintiff argues that this paragraph does not plead a material fact, and thus should be immune
from a particulars application. As I asked rhetorically in the course of submissions, if paragraph 55
does not set out a material fact, and does not provide necessary factual context to understand the
material facts that give rise to the claim, then why is the plaintiff pleading it at all. As indicated in the
course of submissions, the Court directs the plaintiff to review carefully the recent Court of Appeal
decision in Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021
BCCA 362 and ensure that its entire pleaded claim complies with the case law and Rule 3-1: that is,
that the claim provides “a concise statement of the material facts giving rise to the claim.” As stated
by Voith JA at para 44: “Nevertheless, none of a notice of claim, a response to civil claim, and a
counterclaim is a story. Each pleading contemplates and requires a reasonably disciplined exercise
that is governed, in many instances in mandatory terms, by the Rules and the relevant authorities.
Each requires the drafting party to “concisely” set out the “material facts” that give rise to the claim or
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia Page 13

that relate to the matters raised by the claim. None of these pleadings are permitted to contain
evidence or argument.”
2 After the hearing, the Court learned that in fact several hundred people had been able to listen to

the proceedings on the phone-in line.