No.

S-210831
) Vancouver Registry
E SUPREME COURT OF BRITISH COLUMBIA

CANADIAN SOCIETY FOR THE ADVANCEMENT

OF SCIENCE IN PUBLIC POLICY

Plaintiff
ANUJ.

HER MAJESTY THE QUEEN IN 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

NOTICE OF APPLICATION
Name of applicant: Canadian Society for the Advancement of Science in Public
Policy (the "Society”)

rier iviajesty the Queen In Right of the Province of British

Columbia and Dr. Bonnie Henry in her capacity as
Provincial Health Officer for the Province of British Colombia
TAKE NOTICE that an application will be made by the applicant to Mr. Justice Crerar at
the courthouse at 800 Smithe Street, Vancouver, British Columbia on 2022 at 9:45
a.m. for the orders set out in Part 1 below. mp
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1. An order, substantially in the form of Schedule “A”, that the five-day application
hearings scheduled from 12 to 16 December 2022 be webcast and archived.

2. Costs of this application.

3. Such further and other relief that this Honourable Court deems to be just.

Page 1 of 12
 Part 2: FACTUAL BASIS

Overview

4. In our legal tradition “publicity” is said to be “the very soul of justice”.

Endean v. British Columbia,

[2016] 2 S.C.R. 162 (“Endean”)
at para. 66, quoting Canadian
Broadcasting Corp. v. New
Brunswick, [1996] 3 S.C.R. 480,
quoting Scott v. Scott, [1913]
A.C. 417 (H.L.), quoting J.
Benthem.

5. That being so the Society applies for orders to allow the webcasting and archiving
of three applications related to the certification of this action as a class proceeding
(collectively, the “Certification Proceedings’).

6. The Certification Proceedings will include issues of public importance affecting the
constitutional rights of a large number of British Columbians from across the
Province, including individuals in remote locations, emigres, low income
individuals, individuals with disabilities, and others who will not be able to attend
at the Vancouver Law Courts due to distance or economic obstacles.

7. In these circumstances webcasting the Certification Proceedings would strongly

further the objectives of the open court principle and would ensure equal access
to the justice system regardless of economic means.

8. As the orders sought will further these policy aims in respect of the important public
issues raised in this litigation, and there will be no harm to the proper administration
of justice (there being no live witnesses that may be tainted by the presence of
cameras), the orders should be granted.

Procedural History

9. On 26 January 2021 the Society commenced the underlying action (as amended
from time to time, the “Action”) on behalf of all persons residing or doing business
in British Columbia who have, since 17 March 2020, 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 Program Act, RSBC 1996, c. 111 and Part
5 of the Public Health Act, SBC 2008, c. 28.

Amended Notice of Civil Claim,

dated 15 September 2021
(“ANOCC”).

Page 2 of 12
10. Further to the case management of the Action, the parties brought three related
applications which are collectively referred to as the Certification Proceedings:

(a) On15 February 2022 the Society filed a Notice of Application seeking leave
to add additional parties and to further amend this Action;

(b) On 21 April 2022 the Defendants filed a Notice of Application to dismiss the
Action in its entirety; and

(c) On 17 May 2022 the Society filed a Notice of Application seeking

certification pursuant to the Class Proceedings Act, RSBC 1996, c. 50.

11. On 3 June 2022 the Society filed a requisition setting down the Certification
Proceedings for a concurrent five-day hearing commencing 12 December 2022.

12. The Certification Proceedings will be litigated on the basis of written affidavits. No
live witnesses are scheduled or expected to be called during the hearing.

Case Plan Order, made 10

August 2021.

The Issues Raised Affect Many British Columbians Who Will Not Be Able To
Participate at the Vancouver Law Courts

13. | Given the scope of the pleaded class and the subject matter at issue in this Action
(which raise issues of a public nature on behalf of thousands of British
Columbians), the result of the Certification Proceedings will significantly affect the
rights and interests of a large number residents and businesses from across British
Columbia.

ANOCC.

14. | And given the size of British Columbia (nearly four times the size of Great Britain),
many individuals affected by this Action who want to attend the Certification
Proceedings are located in regions too remote from the Vancouver Law Courts to
reasonably attend.

Affidavit #3 of Mr. Warner at

para. 21 (“Warner Affidavit”);

Affidavit #1 of Mr. Donnelly

(“Donnelly Affidavit’) at para.
10;

Affidavit #1 of Ms. Stefanowicz

(“Stefanowicz Affidavit”).

Page 3 of 12
15. There are also costs to attending a five-day hearing, including childcare,
accommodation, time off work, gas, and parking. Many individuals affected by this
Action who want to attend are also individuals facing economic obstacles that
would leave them disproportionately impacted by the costs of attending.

Warner Affidavit at para. 20.

Affidavit #1 of Ms. Cummings

(“Cummings Affidavit’) at
paras. 3 to 4.

16. The Society has filed affidavit evidence representative of the broad interest that
exists in the Certification Proceedings, as well as the locations of and the economic
obstacles preventing many individuals from attending the Vancouver Law Courts.
The Society has filed affidavits from, among others:

(a) a former nurse living in Coquitlam, surviving on income assistance, for

whom the expense of travelling would be burdensome;

Affidavit #1 of Aurora Bisson-

Montpetit (“Bisson-Montpetit
Affidavit’) at paras. 1 to 6.

(b) |= asmall-business owner in Langley, who is interested in the proceedings but

cannot take time away from work;

Cummings Affdavit at paras. 3

to 7.

(c) a senior living in Comox, who would have to travel from Vancouver Island
to attend; and

Stefanowicz Affidavit at paras.

10 to 15

(d) —_an individual living in Smithers Landing, who would have to travel from
northern British Columbia to attend. Mr. Donnelly identifies others from
northern British Columbia having an interest in the Certification
Proceedings.

Donnelly Affidavit at para. 10.

17. Indeed even those located in or around Vancouver may not be able to attend the
Certification Proceedings due to the high level of public attendance that
proceedings concerning the Province’s emergency response have generated.

18. For example on 19 May 2022 Chief Justice Hinkson presided over related
proceedings that were commenced by the Society. However the gallery of the

Page 4 of 12
 courtroom was full, and in or around ten people who wanted to attend those
proceedings were refused entry and left.

Affidavit #1 of Richard Thomas

at paras. 3 to 7 (“Thomas
Affidavit”).

19. ‘It is expected that the Certification Proceedings will also generate significant
attendance from members of the public.

Warner Affidavit at paras. 12 to

21. Thomas Affidavit at paras. 9
to 12.

Part 3: LEGAL BASIS

This Court Has the Inherent Jurisdiction To Grant the Orders Sought

20. Webcasting is not new to Canadian courts. In recent years there has been a
significant expansion in court-authorized webcasting of proceedings. The
Supreme Court of Canada has been webcasting its proceedings since 2009 —
which is sound policy given the public nature of the litigation that occurs in the
Supreme Court of Canada, and how such litigation affects the rights and interests
of individuals and businesses from across Canada.

Warner Affidavit at paras. 23 to

25.

21. Other courts also routinely webcast proceedings of significant public interest. This
includes our Court of Appeal, the Federal Court of Canada, as well as the Manitoba
and Nova Scotia courts.

Warner Affidavit at paras. 32 to

37.

22. This Court has also permitted its proceedings to be webcast or broadcast on a
number of occasions. These authorities provide certain principles to guide the
exercise of this Court's inherent jurisdiction to grant the orders sought.

West Moberly First Nations v

British Columbia, 2018 BCSC
1282 (“West Moberly’) at paras.
2 to 3.

Reference re: Section 293 of the

Criminal Code of Canada
(“Bountiful”), 2011 BCSC 1588 at
paras, 33 to 44.

Page 5 of 12
23. In West Moberly this Court ordered that proceedings may be webcast and archived
on the basis that doing so would promote the open court principle, access to
justice, and reconciliation with Aboriginal peoples — all of which must be balanced
against concerns about the impact on the proper administration of justice.

West Moberly at para. 3.

24. This Action may not involve treaty or Aboriginal law, but like West Moberly the
Certification Proceedings raise matters of public interest that may impact the
constitutional fabric of our society, and there are interested parties (some with little
economic means) that are in locations too remote from the Vancouver Law Courts
to reasonably attend in person.

25. Accordingly, and consistent with the principles applied in previous cases, the
Society asks this Court to grant this application on the basis that the orders sought:

(a) relate to a matter of important public interest;

(6) would further the rationales behind the open court principle;

(c) | would support equal access to the justice system, regardless of economic
means; and

(d) would not detrimentally impact the proper administration of justice.

The Open Court Principle Supports Granting the Orders Sought

26. The open court principle is foundational to our legal tradition. It is "a hallmark of a
democratic society” that has been long recognized as a “cornerstone of the
common law”. Indeed, open courtrooms are “the cornerstone of a free and
democratic society”.

Named Person v. Vancouver

Sun, 2007 SCC 43 at paras. 31-
32 ("Vancouver Sun").

R. v. Pilarinos, 2001 BCSC 1332

at para. 105 ("Pilarinos").

27. The open court principle supports the integrity and independence of our justice
system by demonstrating that “justice is administered in a non-arbitrary manner,
according to the rule of law’.

28. Further, open courts are intended to provide an opportunity for members of the
public to "acquire an understanding of how the courts work and how what goes on
there affects them”.

Vancouver Sun at para. 85.

Page 6 of 12
29. That point has been restated by the Supreme Court of Canada, highlighting that
one of the fundamental purposes of the open court principle is to provide an
“ongoing opportunity for the community to learn how the justice system operates
and how the law being applied daily in the courts affects them’.

Endean at para. 66 (emphasis

added).

30. When the proceedings in question impact matters of general public interest, the
open court principle takes on a heightened importance — which heightens in
particular when members of the public seek to resolve disputes against
governments concerning the manner in which they have been governed. In such
cases it may be appropriate to take additional measures to ensure that the
rationales behind the open court principle are meaningfully achieved.

Bountiful at para. 33. Pilarinos

at para. 149.

31. Further, this Court may consider what Mr. Justice Wagner described as the
"modern realities of communication and information dissemination" which "may
permit a more flexible understanding of what is required to ensure courtrooms are
adequately accessible to the public’.

Endean at para. 86.

32. | Although the courtroom in which the certification application will be heard will
certainly be open, many British Columbians will be denied the opportunity to attend
the hearing due to the great distances, age, and economic status, and the
limitations of court room space, as noted above at paras. 13 to 19.

33. Absent relief, the circumstances will effectively deny those individuals who desire
to attend the Certification Proceedings the opportunity to learn how the daily
operation of this Court affects them and their constitutional rights.

34. | This Court should instead meaningfully implement the open court principle by
allowing the use and assistance of webcasting technologies — which have become
pervasive throughout Canadian society.

The Orders Sought Would Further Equal Access to Justice

35. | Canadian courts have acknowledged that access to justice concerns may have an
impact on the appropriate judicial procedure, and that the webcasting proceedings
can have a positive effect on access to justice.

West Moberly at para. 3. Endean

at para. 92.

Page 7 of 12
36. The reality that such pronouncements acknowledge is that the economic cost of
attending at court — which are relatively high in light of the proposed length of the
Certification Proceedings — are disproportionately burdensome to low income
individuals.

37. Inthe present matter the Society has provided evidence of low income individuals
and seniors who are interested in the Certification Proceedings and how the
proceedings will affect them, but who will not be able to attend without bearing
costs that are disproportionately burdensome to them.

Stefanowicz Affidavit at paras.

10 to 15.

Bisson-Montpetit Affidavit at
para. 5

38. — In light of the public nature of the issues raised, and the evidence of the great
distances and disproportionate economic burdens, to ensure equal access to
justice is a consideration that weighs strongly in favour the relief sought.

There Is No Risk to The Proper Administration of Justice

39. Onan application to broadcast or webcast proceedings the primary consideration

regarding the proper administration of justice is to protect the truth-finding process.
That includes protecting both the live examination of witnesses and potential jury
members from real or perceived influence.

United States v. Meng, 2020

BCSC 43 at paras. 40 and 50.

Restoule v. Canada (Attorney

General), 2018 ONSC 114 at
paras. 51 to 54.

40. Here there is no risk to the proper administration of justice as the evidence relied
upon in the Certification Proceedings will be set out in written affidavits, and there
will be no jury trial.

Case Plan Order, made 10

August 2021

The Application Should Be Allowed Based on the Factors Set Out above

41. |The circumstances weigh strongly in favour of granting the orders sought, as the
public nature of this Action, the open court principle, and the desire for equal
access to justice all strongly support granting this application. On the other hand
there is no foreseeable risk to the proper administration of justice.

Page 8 of 12
42. The level of public interest is high with many British Columbians wanting to view
the Certification Proceedings. Physical attendance in courtrooms for all who wish
to attend would be impossible. If the Certification Proceedings are not webcast,
many British Columbians will be denied the opportunity to observe them and
meaningfully participate.

Warner Affidavit at paras. 13 to

22, inter alia.

43. Consideration must also be given to the nature and scope of this Action. The
Certification Proceedings raise issues affecting potentially all British Columbians,
and concern matters which have had profound impacts on the lives of many.

44. Webcasting would make the courtroom sufficiently accessible to the public. It
would permit British Columbians to be meaningfully informed and engaged in a
judicial decision-making process in a matter of importance which has impacted
their day-to-day lives. It would also ensure that all interested British Columbians
may view the hearing regardless of their physical distance from the courthouse
and regardless of any physical disabilities or financial obstacles.

45. Webcasting the proceeding also provides an opportunity to show British

Columbians how “justice is administered in a non-arbitrary manner, according to
the rule of law".

Vancouver Sun at paras. 31-32.

46. Access to this Court's process and decision-making would, in turn, improve the
public's understanding and confidence in the administration of justice, and would
foster public debate and participation in our democracy.

47. And there are no detrimental effects that weigh against these salutary benefits.

48. There is no foreseeable and significant prejudice to any of the parties or the proper
administration of justice. The hearing will proceed on the basis of written affidavits
with no concern that the presence of cameras might impact witness testimony — it
is akin to webcasting an appellate hearing where concerns regarding the impact
of cameras on witnesses do not arise.

49. This case can therefore be distinguished from any where webcasting or
broadcasting was found to potentially prejudice the right to a fair trial.

50. Further, there are no legitimate privacy interests arising in respect of the
Certification Proceedings. The hearing will be respecting public matters and will pit
members of the public against the Province respecting the manner in which they
have been governed.

The Terms of the Orders Sought Will Ensure the Proper Use and Custody of the
Webcast Data

Page 9 of 12
 51. The draft order attached as “Schedule A” includes specific terms concerning any
logistical and data custody issues. For example the terms address when the
Society may upload the webcast and for how long they may archive the data.

52. Indeed the terms of the order sought by the Society reflect the terms of the order
granted by Mr. Justice Milman in West Moberly. The terms also follow this Court's
requirements as set out in practice directive PD-48.

Warner Affidavit at para. 37

Exhibit “N”

In Conclusion: the Orders Sought Should Be Granted

53. For these reasons the Society respectfully submits that these are appropriate
circumstances to grant an order permitting the Certification Proceedings to be
webcast and archived.

54. _ If this application is not opposed the Society waives the costs of this application.

Part 4: MATERIAL TO BE RELIED ON

1. Affidavit #3 of Mr. Warner made 20 October 2022;

Affidavit #1 of Ms. Cummings made 4 August 2022;

PD

Affidavit #1 of Ms. Bisson-Montpetit made 2 August 2022;

YP

Affidavit #1 of Mr. Revelstoke made 23 September 2022;

oN FPF

Affidavit #1 of Mr. Donnelly made 27 September 2022:

an

Affidavit #1 of Ms. Stefanowicz made 28 September 2022; and

GO

The pleadings in this proceeding;

Such further and other material as counsel may advise and this Honourable Court
may allow.

The applicant estimates that the application will take 2 hours.

This matter is not within the jurisdiction of a Master.

TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to

respond to this notice of application, you must, within 5 business days after service of this
notice of application or, if this application is brought under Rule 9-7, within 8 business
days after service of this notice of application,

(a) _ file an application response in Form 33,

Page 10 of 12
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 APPENDIX

THIS APPLICATION INVOLVES THE FOLLOWING:

discovery: comply with demand for documents

MOOUDOUODOODODUODoOoOoo

discovery: production of additional documents

other matters concerning document discovery

extend oral discovery

other matter concerning oral discovery

amend pleadings

add/change parties

summary judgment

summary trial

service

mediation

adjournments

proceedings at trial

case plan orders: amend

case plan orders: other

experts

Page 12 of 12
 Schedule “A”
No. S-210831
Vancouver Registry

In the Supreme Court of British Columbia

BETWEEN:

CANADIAN SOCIETY FOR THE ADVANCEMENT

OF SCIENCE IN PUBLIC POLICY

Plaintiff

AND:

HER MAJESTY THE QUEEN IN 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

Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50

DRAFT ORDER

BEFORE: THE HONOURABLE JUSTICE CRERAR ON:

ON THE APPLICATION of the plaintiff, Canadian Society for the Advancement of Science in
Public Policy (the "Society”), coming on for hearing at 800 Smithe Street, in the City of
Vancouver, Province of British Columbia, on and on hearing counsel for the
applicant and counsel for the respondent and on reading the material filed;

THIS COURT ORDERS that:

1. The interlocutory hearings scheduled to commence at the Vancouver Law Courts on 12

December 2022 in these proceedings may be webcast and archived on the internet on
the following conditions:

a. The plaintiff shall retain a vendor (the “Provider’), as agreed upon by the plaintiff,
the defendants (the “Parties”), and Court Services Branch. The Provider will:

i. Record and webcast the hearings on the internet as set out below (the
“Webcast’); and
 li. Make an archived copy of the Webcast available on the Internet for a
maximum of two years (the “Archived Copy”) (collectively with the
Webcast, the “Streaming Services’).

. The Provider shall record the hearings using one camera to be placed in the front
row of the gallery, which camera must be arranged to face and record the presiding
judge and the backs of counsel.

For the duration of the hearings, the Provider shall be allowed to bring into and
utilize one camera and one microphone in the courtroom.

. The Provider will ensure that the camera and operating personnel are in place and
ready to proceed in an area designated by the court at least 10 minutes prior to
the scheduled commencement (or re-commencement) of the hearings.

If possible, the audio signal for the camera will run from the in-court audio system
rather than a microphone supplied by the provider.

Operating personnel in the courtroom must be suitably attired in business dress,

and must conduct themselves in a manner keeping with judicial proceedings.

Equipment and operating personnel will be placed in an area, as agreed between

the Court and the Provider, and shall not be moved or removed while the court is
in session. The area designated shall provide reasonable access to coverage. and
sound recording equipment will be unobtrusive and not distracting.

. The camera and operating personnel must remain in place while the Court is in
session.

All other equipment must be left outside the courtroom and must not impede public
access to a courtroom or circulation within the courthouse.

The streaming and recording shall be limited to the court proceedings alone. There
will be no filming outside the courtroom, or at any time inside the courtroom when
the court is not in session, including of any private conversations.

The camera and microphone must not be made live until the Court Clerk
pronounces “Order in Court” and the court is in session. Camera and microphones
must be turned off when the court is not in session, including during breaks.

Representatives of Court Services Branch may stop the recording at any time
when directed by the Court or in the event of urgency or emergency.

. The hearings will not be delayed, postponed, or otherwise interrupted to

accommodate technical problems with recording equipment.

If a party considers that the recording of the hearings is an impediment or

distraction despite this order, it may apply to vary this order, including to prohibit
any further recording of the hearings.
 o. There will be no visual, audio, or photographic coverage of the members of the
public in attendance.

p. The video image will be framed to avoid capturing the image of any court staff
when located in their ordinary positions.

gq. The camera will use available light only and the camera will be static. No
mechanical pan/tilt/zoom is permitted, and the camera must not record any images
of any court staff or member of the public. The Camera will not be focused on and
will not record or photograph any materials on counsel tables or in counsel’s
possession.

r. There will be no visual or audio recording of communications between counsel and

their clients, between co-counsel of a client, or between counsel and the court
privately or in camera.

s. In the event that the camera captures, contrary to the terms of this order, any
private, privileged, or confidential communication involving counsel for any of the
Parties, under no circumstances shall the Parties or their counsel be deemed to
have waived the privacy, privilege, or confidentiality associated with that
communication.

t. No logos will appear on the Webcast or Archived Copy at any time, including during
breaks when the court is not in session.

u. The provider will post the Webcast and Archived Copy on websites to be
determined by the Court Services Branch, the Provider, and the Parties.

v. The Provider must not make the Streaming Services available to the public in
respect of any day’s recording until 5:00pm the following day.

w. The Parties must be provided access to each day’s recording as soon as

practicable on the same day it is recorded. If the Parties agree that privileged or
confidential information has been recorded, the Parties may direct the Provider to
redact such footage, in which case the Provider shall do so as directed. In the
event that the Parties do not agree, then a Party may request that the Court order
the Provider to redact that footage. If the Court so orders, the Provider shall redact
the footage according to the Court’s order. Pending the Court’s ruling in the event
of any dispute, the Provider shall not make the Streaming Services available to the
public until otherwise directed by the Court.

2. The Provider shall coordinate with Court Services Branch to implement this order.

AND THIS COURT FURTHER ORDERS THAT:

3. The Webcast and Archived copy must not be edited except as set out in paragraph 1(w)
of this order or by further order of the Court.

4. The Webcast and Archived Copy must not be copied, used, or rebroadcast, except as set
out in this order or by further order of the Court. A notice shall be placed on the websites
hosting the Webcast and Archived Copy as follows:
 This is a recording of judicial proceedings which may not be further
broadcast, rebroadcast, transmitted, reproduced, communicated to the
public by telecommunication, or otherwise made available in whole or in
part in any form or by any means, electronic or otherwise, or stored in whole
or in part in any information storage and retrieval system, without the prior
written authonzation of the Supreme Court of British Columbia.

5. The plaintiff shall retain the Provider and will be responsible for arranging and supporting
the Streaming Services and all associated costs.