No.

$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

NOTICE OF APPLICATION
Name of applicant: The Plaintiff, Canadian Society for the Advancement of Science in
Public Policy

TO: The Defendants

TAKE NOTICE that an application will be made by the Applicant to the Honourable Justice
Crerar at the Courthouse at 800 Smithe Street, Vancouver, BC on December 12, 2022 at
9:45 a.m. for the order(s) set out in Part 1 below.

Part 1: ORDER(S) SOUGHT

1. This action be certified as a class proceeding;

2. The Class be defined as:

All persons residing or doing business in British Columbia who, since

on or after March 17, 2020, have been subject to orders, directives, or
decrees or actions of the defendants made in response to the Covid-
19 virus and/or pursuant to the Emergency Program Act and/or Part 5
of the Public Health Act (the “Class’).
3. The sub-Classes be defined as:

Medical Subclass:

British Columbia residents whose access to medical procedures were

cancelled or delayed due to orders, directives or decrees of the
defendants in response to the Covid-19 virus and/or made pursuant to
the Emergency Program Act and/or Part 5 of the Public Health Act;

Vaccination Subclass:

British Columbia residents who were not double vaccinated for Covid-
19 between September 13, 2021 to April 8, 2022;

Religious Subclass:

British Columbia residents whose religious beliefs prevented them from

attending in-person religious gatherings and/or were not vaccinated
against Covid-19 due to their religious beliefs.

The Plaintiff be appointed as the representative Plaintiff for the Class, or in the
alternative, the Plaintiff seeks to add as an alternate representative
of the class members, Lilly Leppky as a representative of the proposed Vaccination
Subclass and the Religious Subclass, and as a representative of
the Medical Subclass.

The manner in which and the time within which Class Members may opt out of the
proceeding;

Certifying the common issues as set out at Schedule A;

Approving the Litigation Plan at Schedule B;

Such further and other relief as counsel may advise and this Honourable Court may
deem just.

Part 2: FACTUAL BASIS

1. On March 17, 2020, the Provincial Health Officer issued a notice under the Public
Health Act (the “PHA”) that the transmission of the infectious agent SARS-CoV-2, had
caused cases and outbreaks of an illness known as COVID-19 in British Columbia.
2. The following day, on March 18, 2020, the Minister of Public Safety and Solicitor
General declared a “state of emergency” under the Emergency Program Act, RSBC 1996,
c. 111 (“EPA”).

3. In their “emergency” response, the Defendants closed large sectors of the British
Columbia economy issuing orders prohibiting attendance at restaurants, fitness facilities,
shopping centres, religious and other peaceful gatherings, issued travel bans and cancelled
medical treatments.

4. While hospitals prepared for an influx of COVID-19 patients, many medical

procedures and operations were cancelled under the Defendants’ directives. However, the
high number of intensive care COVID-19 patients did not materialize. Most people infected
with COVID-19 experienced mild to moderate influenza-like symptoms that abated quickly.

5. By June 24, 2020, the Provincial Government and PHO’s restrictions on non-
essential travel, hotels, and film industries were lifted. By September 2020, on site and in
person instruction at public schools was reintroduced.

6. Despite the relatively low number of persons infected by COVID-19 in British

Columbia, the Provincial Health Officer failed to provide notice that the emergency had
passed and the Lieutenant Governor in Council continued to extend the emergency
declaration under the EPA.

7. British Columbia was in the longest state of emergency in provincial history.

8. Although the state of emergency was cancelled as of June 30, 2021, the Provincial
Health Officer continued to issue orders pursuant to the PHA, despite there being
insufficient evidence or reasonable evidence that the prerequisites of s. 52 of the PHA were
met.
 4

9. The language the Defendants have used, and continue to use, in public statements
respecting COVID-19 deaths misrepresent the true fatality of this disease. The Defendants
only report the case fatality ratio (the “CFR”) rather than infection fatality ratio of COVID-
19 (“IFR”). In reality, the number of persons infected but not reported is significantly higher
than the cases reported. This means that the true fatality due to COVID-19 is significantly
lower than reported by the Defendants.

10. This misunderstanding of statistical data has caused, and continues to cause,
unwarranted public alarm.

11. | The reverse transcriptase polymerase chain reaction (“PCR”) testing methodology,
which the Defendants have used, and continue to use, to determine the presence of COVID-
19 in a person inaccurately slant results towards a higher number of positive infectious
cases of COVID-19 in the population than there actually are. This in turn causes further
needless panic and unfounded justification of government emergency orders.

12. In spite of this a positive result has been used as a basis to enforce isolation of
individuals on the grounds that they may have, and may be contagious for, a disease for
which they show no symptoms, and from whom no COVID-19 virus had been isolated,
purified, or shown to be biologically active.

13. | The provincial government also failed to establish legally binding conditions on the
use of sub-delegated powers to suspend, waive or otherwise alter statutory provisions for
some Ministerial orders and subsequent orders replacing them.

14. | The Provincial Health Officer has issued more than 50 orders under the authority of
Part 5 of the PHA, including verbal orders (the “PHA Orders’).

15. |Noneofthe Provincial Health Officer's PHA Orders reference the medical or scientific
basis for issuing the order and do not satisfy the requirements of s. 52 of the PHA.
 5

16. Ministerial orders and PHA Orders related to COVID-19 (collectively, the “Orders”)
were and continue to be, inconsistent, contradictory, and contrary to reasonably established
medical and scientific principles and research, and do not satisfy the requirements of s. 9
of the EPA and s. 52 of the PHA.

Effect of government measures on British Columbians

17. | The effects of these restrictions placed on British Columbians have caused personal
injury and damage disproportionate to any threat posed by COVID-19, including but not
limited to the following (the “Restriction Effects”):
a. Significant increase in overdose deaths;
Increase in suicide rates;
Increase in depression and mental-health illness;
oO 29
sam

Loss of gainful employment;

Increase in domestic violence, including child battery;
Increase in bankruptcies and foreclosures;
Increase in divorces and deteriorations in personal relationships;
Decrease in critical services for the homeless and low income;
Increase in insurance premiums;
j. Refusal of medical treatment to unvaccinated persons;
k. And others.

18. Orders, directives, or decrees requiring Class members to quarantine for two weeks
or another period of time caused Class members to be deprived of their liberty by compelling
them to stay home or at another facility.

19. Orders limiting peaceful assembly have stopped or limited the putative Class
members intent and right to publicly protest or otherwise express political and other views
between at least November 7, 2020 and February 10, 2021.

20. Thecancellation of surgeries and additional medical diagnostic and other procedures
 6

scheduled on or after March 17, 2020 have caused and continue to cause personal injury
to members of the Medical Subclass and resulted in discrimination against the members of
the Medical Subclass based on physical or mental disability.

21. PHA Orders mandating persons be vaccinated against COVID-19 in order to secure
employment or participate in various activities, attend events, restaurants, book travel
accommodation and other activities that allow these persons to fully participate in British
Columbia and Canadian society are forms of compulsions and prohibitions that affect
fundamental life choices of putative Class members.

22. The Defendants have failed to provide reasonable accommodation to putative Class
members such as exempting persons who have recovered from COVID-19, or those who
produce a negative rapid antigen COVID-19 test as an alternative to proof of vaccination,
and other reasonable accommodations that become apparent from time to time.

23. The Orders fail to take into account the Subclass Members already disadvantaged
positions in Canadian society and have resulted in differential treatment between Subclass
Members and other member of the British Columbian and Canadian society, without
providing for reasonable accommodation. This has also resulted in the perpetuation of false
stereotypes of Subclass Members, by being perceived as:
a. dangerous to the public health;
b. ignorant;
C. not worthy of respect;
d. undeserving of medical treatment;
e. such other particulars as may be provided.

24. At various times, the PHO stopped requests for reconsideration, and/or failed to
respond to requests for reconsideration within a reasonable time or at all.

25. The process of reconsideration of the PHA Orders was and continues to be slow
and lacks independence, and was not proportional to the rights affected, resulting in a
discriminatory effects of the Orders on putative Class members, including Subclass
Members.
Part 3: LEGAL BASIS

1. The requirements set out in s. 4 of the Class Proceedings Act, RSBC 1996, c 50

(the “Acf’) are as follows:

4(1) Subject to subsections (3) and (4), the court must certify a proceeding as a
class proceeding on an application under section 2 or 3 if all of the following
requirements are met:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the class members raise common issues, whether or not those
common issues predominate over issues affecting only individual members;

(d) a class proceeding would be the preferable procedure for the fair and efficient
resolution of the common issues;

(e) there is a representative plaintiff who

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method
of advancing the proceeding on behalf of the class and of notifying class
members of the proceeding, and

(iii) does not have, on the common issues, an interest that is in conflict with
the interests of other class members.

2. Certification is not meant to be a test of the merits or strength of the action. Instead,
certification focuses on the form of the action.

Section 5(7) of the Class Proceedings Act

3. The fact that a defendant attempts to lead evidence at certification that goes to
the merits does not change this.
Tiboni v. Merck Frosst Canada Lid., 2008 CanLII 37911 (ONSC) at para. 53
 8

4. The evidentiary burden on the plaintiff on a certification motion is low. The plaintiff
need only show “some basis in fact” for each of the certification requirements. The standard
of proof is below the “balance of probabilities”:

Hollick v. Toronto (City of), 2001 SCC 68

5. This case is well suited to, and should be certified as, a class proceeding.

s.4(1)(a)

6. The first requirement, pursuant to s. 4(1)(a) of the Act, is whether the pleadings
disclose any cause(s) of action against the Defendants. A plaintiff satisfies this requirement
unless, assuming all facts pleaded to be true, it is plain and obvious that the plaintiff's claim
cannot succeed. This is decided on the pleadings alone. The Court must read the pleadings
generously and the plaintiff need only satisfy the Court that the action is not bound to fail.

Supreme Court Civil Rules, Rule 9-5(1)

Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57

R v. Imperial Tobacco Canada Ltd., 2011 SCC 42

7. The test under s. 4(1)(a) of the CPA is the same as the test for striking pleadings
under R.9-5(1)(a) of the Supreme Court Civil Rules.

Pearce v 4 Pillars Consulting Group Inc., 2021 BCCA 198 at para. 55

8. An important consideration on any application under Rule 9-5(1)(a) is whether a

pleading can be preserved by amendment.

International Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong
Limited, 2011 BCCA 149 at para. 28

9. If an amendment could cure the defect, the plaintiff should not be driven from the
“judgment seat” even with the potential for the defendant to present a strong defence.
James v Johnson & Johnson Inc., 2021 BCSC 488 at para. 63

10. Aparty who seeks to amend deficiencies in the pleadings should do so in the trial
court, before an order is made striking the pleadings.
Jones v. Bank of Nova Scotia, 2018 BCCA 381 at para. 36.
11. | Novel claims should be given the opportunity to go to trial.

Freeman-Maloy v. York University, 2006 CanLll 9693 (ON CA)

at paras. 18, 26-28, leave to appeal refused [2006] S.C.C.A. No. 201

12. The Plaintiff pleads and relies on the Act, the Charter, the Constitution Act, 1982.

Emergency Declaration

13. The Plaintiff pleads that the Defendants have failed to establish the legally binding
conditions necessary to declare and continue the state of emergency under the EPA and
PHA.

14. | These orders are listed in Part 2, paragraph 1 of the Further Amended Notice of Civil
Claim."

15. | Other jurisdiction have also found that government actions lack the scientific basis
to justify similar orders.

a. STS 3260/2021 - ECLI:ES:TS:2021:3260 (Tribunal Supremo, Madrid No.

5899/20221)
(https:/Awww.poderjudicial.es/search/documento/AN/9655910/Real%20Decr
eto%20alarma%20sanitaria%20Covid-19/20210827.)

b. Amtsgericht Weimar, Urteil vom 11.01.2021, Az. 6 OWi - 523 Js 202518/20 (Local
Court) - (https://2020news.de/wp-content/uploads/2021/01/Amtsgericht-
Weimar-Urteil-vom-11.01.21.-523-Js-202518-20.pdf

c. Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21 (Local Court)

(https://2020news.de/wp-content/uploads/202 1/04/Amtsgericht-Weimar-9-F-
148-21-EAO-Beschluss-anonym-2021-04-08_online.pdf,

d. Tribunal da Relagao de Lisboa, Proc. N° 1783/20.7T8PDL.L1

e. Dr. A, et al v. Hochul, et al, (N.D.N.Y.) 1:21-CV-1009

16. In the alternative, if the preconditions for declaring or continuing the state of
emergency under the EPA and PHA did exist, the orders made pursuant to the EPA and/or
the PHA contravene the Charter.

1 All references to the Further Amended Notice of Civil Claim include any orders or other particulars listed
with respect to such paragraphs in the Response to Demand for Particulars dated August 30, 2021 and
October 12, 2021.
 10

s. 2(a) and (b) of the Charter

17. | The orders listed in Part 3, paragraph 29(a) of the Further Amended Notice of Civil
Claim violate s. 2(a) and (b) of the Charter, which guarantee freedom of religion and
expression.

18. Freedom of religion encompasses the rights “to entertain such religious beliefs as a
person chooses”, “to declare religious beliefs openly without fear of hindrance or reprisal’,
and “to manifest religious belief by worship and practice or by teaching and dissemination”.

R. v. Big M Drug Mart Ltd., 1985 CanLll 69 (SCC), [1985] 1 SCR 295

19. These orders violate the third aspect of freedom of religion — the right “to manifest
religious belief by worship and practice or by teaching and dissemination’, of class
members.

20. The two-part test for determining whether government action that regulates an
activity violates s. 2(b) is as follows:

a. First, is the activity expressive, i.e., does it attempt to convey meaning?

b. Second, if the activity is expressive, is the purpose or effect of the government

action was to control attempts to convey meaning through that activity.

Irwin Toy v. Quebec (Attorney General), 1989 CanLll 87 (SCC), [1989] 1 SCR 927

21. Expressive conduct falls within the scope of s. 2(b).

Irwin Toy v. Quebec (Attorney General)

22. Actions undertaken pursuant to religious beliefs are expressive activities for the
purposes of s. 2(b). The reason is that the actions attempt to convey meaning — in this case,
behaviour in accordance with one’ religious beliefs. Moreover, such behaviours include not
just actions, but affirmative decisions of inaction — for example, a decision to refuse to take
a COVID-19 vaccine, for religious reasons.

23. There is no constitutional barrier to these orders violating both s. 2(a) and s. 2(b) of
the Charter.
 11

Baier v. Alberta, 2007 SCC 31 (CanLlil), [2007] 2 SCR 673, at para. 58

24. In Beaudoin v British Columbia, the defendants (same defendants as in this action)
conceded that Dr. Henry’s Gatherings and Events Orders infringed s.2(a), (b), (c) of the
Charter, and the court did so find.

Beaudoin v British Columbia, 2021 BCSC 512

s.2(c) and (d) of Charter

25. The orders listed in Part 3, paragraph 29(b) and (d) of the Further Amended Notice
of Civil Claim violate s. 2(c) and (d) of the Charter, which guarantee freedom of peaceful
assembly and freedom of association.

26. The right of peaceful assembly is a group activity incapable of individual

performance.

Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, at

para 64

27. The guarantee of freedom of association in s. 2(d) of the Charter protects three
classes of activities: (1) the right to join with others and form associations; (2) the right to
join with others in the pursuit of other constitutional rights; and (3) the right to join with others
to meet on more equal terms the power and strength of other groups or entities.

Mounted Police Association

28. — Infringement of s. 2(d) occurs when the impugned government action constitutes “a
substantial interference with freedom of association” in either its purpose or effect, and the
restrictions on gatherings in the Gatherings and Events” orders of November 19, 2020,
December 2, 9, 15 and 24, 2020 infringes on the right to freedom of association under s.
2(d) of the Charter.

Beaudoin v British Columbia, 2021 BCSC 512 at para. 177

 12

29. Section 2(d) also protects individual rights. When an individual has a constitutional
right to freedom of expression or religion, as an example, the right continues to be protected
if the individual chooses to exercise the right in association with others.
Professional Institute of the Public Service of Canada v. Northwest Territories
(Commissioner), 1990 CanLll 72 (SCC), [1990] 2 SCR 367

30. This infringement extends to public protests, gatherings of groups of people, such as
family and friends, as well as in religious or cultural settings, such as restaurants, theatres,
and other places where people gather.

31. |The court in Beaudoin declared that orders made by Dr. Henry entitled “Gatherings
and Events” of November 19, 2020, December 2, 9, 15 and 24, 2020 are of no force and
effect as they unjustifiably infringed the petitioner's rights and freedoms with respect to
public protests pursuant to ss. 2(c) and (d) of the Charter.

Beaudoin v British Columbia, 2021 BCSC 512 at para. 251

s.7 of the Charter

32. The orders listed in Part 3, paragraphs 29 (d), (g) and (h) of the Further Amended
Notice of Civil Claim violate s. 7 of the Charter, because they deprive class members of
their protected interests in liberty and/or security of the person in a manner that does not
accord with the principles of fundamental justice.

33. The liberty interest under s. 7 encompasses “the right to make fundamental personal
choices free from state interference” and “to make decisions concerning their bodily integrity
and medical care and trenches on their liberty”, including the decision of whether to take a
COVID-19 vaccine. |

Carter v. Canada (Attorney General), 2015 SCC 5 (CanLll), [2015] 1 SCR 331 at paras.
64 and 65

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [2000] 2 S.C.R.
307 at para. 49
 13

34. Excessive waiting times in the public health care system is a breach of the right of
security of the person and right to life.

Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] 1 SCR 791

35. Another basic life choice is the decision to move about freely in public.

R. v. Heywood, 1994 CanLll 34 (SCC), [1994] 3 S.C.R. 761

Baril v. Obelnicki, 2007 MBCA 40 (CanLll) at para. 75

36. | These deprivations of liberty and/or security of the person contravene the principles
of fundamental justice, because these orders suffer from overbreadth and are arbitrary.

37. Government actions suffer from overbreadth where “the law goes too far and
interferes with some conduct that bears no connection to its objective’.

Canada (Attomey General) v. Bedford, 2013 SCC 72 (CanLll), [2013] 3SCR 1101 at
para. 101

38. |The orders are overbroad because of the absence of evidence regarding both their
effectiveness, and comparative effectiveness, in relation to achieving its objectives. Without
such evidence, this Honourable Court cannot conclude that the Orders only interfere with
conduct that bears a connection to this objective and must draw the adverse inference that
the Orders do in fact interfere with conduct that bears no connection to their objectives.

39. The orders are arbitrary because they not provide reasonable exemptions that
would conform with Charter values, while also ensuring the safety of persons in public
based on best scientific evidence. For example, there are no exemptions to members of the
public who have natural immunity to the Covid-19 virus, which based on generally accepted
scientific evidence, including the BC CDC own recommendations, have the same or better
immunity than fully vaccinated individuals.

40. Orders are also arbitrary because they prohibit access to certain venues while
allowing access to others, such as for example, prohibiting shopping in clothing stores, while
allowing shopping in big box type of stores such as Costco and Walmart, without any
scientific basis for such restrictions.
 14

41. By limiting access based on unsubstantiated evidence and for example, restricting
access to restaurants, not because those settings present an increased danger of virus
transmission, but so that vaccinated persons can “feel” better, such orders are arbitrary and
overly broad.

42. Orders, directives, or decrees that prohibit or limit medical procedures, including the
administration of vaccines, engage in putative class members rights to security of the
person.

s.9 of Charter

43. The purpose of section 9 is to “protect individual liberty against unjustified state
interference. Its protections limit the state’s ability to impose intimidating and coercive
pressure on citizens without adequate justification’.

R. v Le, 2019 SCC 34 (“Le”) at para. 25

44. A “detention” pursuant to section 9 requires “significant physical or psychological

restraint’.

Le, at para 27

45. __ Even in the absence of an actual or threatened physical restraint, a detention may
occur “if the person concerned submits or acquiesces in the deprivation of liberty and
reasonably believes that the choice to do otherwise does not exist’.

Therens, at 644

See also Spencer v. Canada (Health), 2021 FC 621 (CanLil) at para. 124.

46. Following the SCC’s decision in Grant, detention under section 9 is understood as
including psychological detention by state agents, notably where an individual is “legally
required to comply with a direction or demand” or where a reasonable individual, though
not legally required to comply, would “conclude that [they were] not free to go”: Grant,
above, at paras 30-31.

Spencer v. Canada (Health), at para. 155.

 15

47. In Spencer, the court concluded that orders that require persons to quarantine at
government approved accommodation or a designated quarantine facilities for 24-72 hours
while they await the results of a Covid-19 test constituted “detention” for the purposes of s.9
of the Charter.

Spencer v. Canada (Health), at para. 165.

48. Orders, directives or decrees by the defendants stipulating that they must quarantine
themselves are in breach of s.9 of the Charter.

s.15 of the Charter

49. The orders listed in Part 3, paragraph 29(h) of the Further Amended Notice of Civil
Claim discriminate on the basis of religion, mental or physical disability in breach of s. 15(1).
Section 15(1) is violated by a government action that draws a distinction on an analogous
or enumerated ground of discrimination, and which reinforces, exacerbates, or perpetuates
an existing disadvantage.

Fraser v. Canada (Attorney General) 2020 SCC 28 (“Fraser’) at para. 27

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999]
1$.C.R. 497

50. Moreover, Fraser affirmed that a government action may draw a distinction on the
basis of a prohibited ground of discrimination either on its face or in its impact.

51. Although neutral on their face, their impact is to draw a distinction on the basis of
religion or medical condition (mental or physical disability).

52. For example, there is a distinction between persons whose religious beliefs require
them to not take vaccines, such as the COVID-19 vaccine, and those persons whose
religious beliefs (including the absence of any religious beliefs) do not include such an
objection.

53. Discrimination on the basis of mental and physical disability impacts those with such
disabilities as these orders preclude such class members from accessing health care, or
 16

access to certain services available to the public. For example, persons that require a
second dose of vaccination within the manufacturer's recommended time intervals. Healthy
adults for example have a strong protection against Covid-19 shortly after one dose of the
vaccine, while persons with certain types of cancers do not, and require the second dose
soon after the first, in order to achieve similar levels of protection as those without a physical
disability.

54. Suchorders reinforce, exacerbate, or perpetuate existing disadvantages of members

of the subclasses. As the Supreme Court held in Big M (at para. 96): “[t]he Charter
safeguards religious minorities from the threat of “the tyranny of the majority”. While Big M
applied this principle to the protection of religious minorities under s. 2(a), the principle
extends equally to the interpretation of s. 15(1). It is such protected minorities who lack the
political power to secure exemptions from generally applicable laws in the political process,
and the absence of such an exemption in the Orders exacerbates their pre-existing
disadvantage.

Orders are not justified under s. 1

55. The orders listed in Part 3, paragraph 29 of the Further Amended Notice of Civil
Claim cannot be justified under s. 1 of the Charter, for two reasons.

56. _‘ First, if the objectives underlying these orders are in fact pressing and substantial —
a point which the Plaintiff does not concede — the Defendants have not discharged their
evidentiary burden under R. v. Oakes, where the Court said that governments must adduce
“cogent and persuasive” evidence.

57. |The Oakes test sets up a process of “reasoned demonstration”, as opposed to simply
accepting the say-so of governments.

RJR-MacDonald v. Canada (Attorney General), at paras. 129 and 133

58. Thes. 1 inquiry is by its very nature a fact-specific inquiry.

RJR-MacDonald v. Canada (Attorney General), at para. 133

59. Second, the orders are not minimally impairing, because:

 17

a. the orders do not provide for reasonable exemptions, such as natural

immunity, a negative PCR or antigen test, a single vaccination after
contracting COVID-19, and in which case individuals wear protective masks
and follow appropriate hygiene as they have been prior to the promulgation of
these orders;

b. the orders do not provide reasonable accommodation for persons who do not
present a public health danger;

c. the orders do not provide for any religious exemptions; and

d. they do not adopt less intrusive measures, such as universal rapid testing for
COVID-19 amongst others.

60. Indetermining whether the objective of the law is sufficiently important to be capable
of overriding a guaranteed right, the court must examine the actual objective of the law. In
determining proportionality, it must determine the actual connection between the objective
and what the law will in fact achieve; the actual degree to which it impairs the right; and
whether the actual benefit which the law is calculated to achieve outweighs the actual
seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of
the law at issue and the proof offered of its justification, not on abstractions.

61. Whether a limitation of Charter protections by a law of general application is

justified under s. 1 is determined by an Oakes analysis. Alternatively, the analysis in Doré
v. Barreau du Québec , 2012 SCC 12 applies in administrative settings.

62. In any event, the Doré framework does not deviate fundamentally from the
principles set out in Oakes for assessing the reasonableness of a limit on a Charter right
under
s. 1.

Law Society of British Columbia v. Trinity Westem University, 2018 SCC 32 (CanLll);

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons
of Ontario, 2019 ONCA 393 at paras. 60.
 18

63. The Further Amended Notice of Civil Claim raises genuine legal and factual
questions that must be determined at trial. Accordingly, the requirement in section 4(1)(a)
of the Act has been met.

64. With respect to the remaining requirements for certification set out in sections 4(1)(b)
through 4(1)(e) of the Act, the Plaintiff need only show “some basis in fact”. This is a low
evidentiary threshold that falls below the balance of probabilities test.

Hollick v. Toronto (City of), 2001 SCC 68

s.4(1)(b)

65. Section 4(1)(b) of the Act requires that there be an identifiable class of two or more
persons. This requirement has been satisfied given the proposed class definition, which
has objective criteria and is sufficiently clear. Any particular person's claim to membership
in the class is determined by stated, objective criteria.

66. There is a rational connection between the common issues and the proposed class
definition.

67. Citadel Law Corporation has been retained to represent the Plaintiff, who was
incorporated for the express purpose representing individuals personally affected by the
Defendants’ actions with respect to Covid-19.

68. _If this Honourable Court finds that the Society lacks standing, it relies on its Notice
of Application filed May 17, 2022 to add three plaintiffs to represent the putative class and
sub-class members.

s.4(1)(c)

69. Section 4(1)(c) of the Act requires that the claims of Class Members raise a common
issue. The commonality threshold is low and a triable factual or legal issue, which advances
the litigation when determined will be sufficient.

70. The Plaintiff need not show that everyone in the class shares the same
interest in the resolution of the common issue or that the issue will be answered in the
same way for each class member. Furthermore, the possibility that there may be
 19

differences between class members doesnot represent a barrier to finding that common
issues exist.

Hollick v. Toronto (City), 2001 SCC 68 at para. 21

Rumiley v. British Columbia,
2001 SCC 69 at para. 33
See also Endean v. Canadian Red Cross Society,
1997 CanLll 2079 (BCSC) rev'd on
other grounds (1998) 48 B.C.L.R. (3d) 90 (C.A.)

71. Tobe considered common, issues need not be dispositive of the litigation.

McDougall v. Collinson, 2000 BCSC 398 (CanLIl) at para. 86

72. For acliass action to satisfy the commonality portion of the test, it does not have to
resolve all issues that may exist in terms of establishing liability. The proposed classes
share a central commonality, joining multiple classes in the same class proceeding would
facilitate recognized goals of class proceedings.

Good v. Toronto (Police Services Board), 2016 ONCA 250, leave to appeal dismissed
2016 CanLlil 76801 (SCC)

Ewert v. Canada (Attorney General), 2016 BCSC 962

73. | The requirement of commonality may be met even if the common issues make up a
very limited aspect of the liability question and even though many individual issues remain
after resolving them.

Cloud v. Canada (Attorney General) (2004), 2004 CanLll 45444 (ON CA) at para. 53

74. Though the Plaintiff proposes common issues, it is for the court to determine and
frame the issues. At the certification stage, the common issues should be framed in general
terms. As the action proceeds, the court may determine that the common issues need to
be more particularized.

Cloud v. Canada (Attomey General), 2004 CanLll 45444 (Ont.C.A.)

75. — The Plaintiff proposes common issues of fact and law, as set out at Schedule A.
 20

76. The Affidavits relied on by the Plaintiff speak to the commonality of the factual events
in issue, raising common issues of law. There is “some basis in fact”, on the record before
the Court, that the resolution of the proposed common issues is necessary to the resolution
of each Class Member's claim. The resolution of these issues will avoid duplication of fact-
finding and legal analysis. Accordingly, the requirements of s. s.4(1)(c) of the Act have been
met.

s.4(1)(d)

77. To satisfy section 4(1)(d) of the Act, a class proceeding must be the preferable
procedure for the fair and efficient resolution of the common issues.

78. Section 4(2) of the Act, lists the following matters that the court must consider in
deciding whether a class proceeding is preferrable:

(2) In determining whether a class proceeding would be the preferable procedure

for the fair and efficient resolution of the common issues, the court must consider
all relevant matters including the following:

(a) whether questions of fact or law common to the members of the class
predominate over any questions affecting only individual members;

(b) whether a significant number of the members of the class have a valid
interest in individually controlling the prosecution of separate actions;

(c) whether the class proceeding would involve claims that are or have been
the subject of any other proceedings;

(d) whether other means of resolving the claims are less practical or less
efficient;

(e) whether the administration of the class proceeding would create greater
difficulties than those likely to be experienced if relief were sought by other
means.

79. The Section 4(2) of the Act provides a non-exhaustive list of considerations that
inform the analysis to determine whether a class proceeding is the preferable procedure
 21

for the fair and efficient resolution of the common issues. In this case, each consideration

militates in favour of certification.

80. In determining whether a class action is the preferable procedure, the court must
review the factors in s. 4(2) collectively. No single factor is determinative. The inquiry into
preferable procedure “should be conducted through the lens of the three principle
procedural advantages of class actions: judicial economy, access to justice, and
behavioural modification’.

AIC Limited v. Fischer, 2013 SCC 69 at para. 16

See also Hollick v. Toronto (City of), 2001 SCC 68 at paras. 27-31

81. The preferability requirement has two concepts at its core: first, whether the class
action would be a fair, efficient and manageable method of advancing the claim; second,
whether the class action would be preferable to other reasonably available means of
resolving the claims of class members.

Toronto Community Housing Corporation v.

Thyssenkrupp Elevator (Canada) Limited, 2011 ONSC 4914 (CanLIl)

82. Class proceedings are the only practical and efficient means of resolution for those
whose claims have modest damage potential and for whom separate proceedings would
not be feasible. Greater difficulties would be experienced in administering separate
proceedings for modest claims unless those claims were simply not pursued at all, which
would defeat the whole purpose of class proceedings.

Harrington v. Dow Coming Corp., 1996 CanLll 3118 (BC SC)

83. |The common issues in Schedule A predominate over any questions affecting only
individual class members.

84. Aggregating these claims under the Act benefits Class Members and the judicial
system. Requiring Class Members to prosecute separate actions would be expensive,
impractical and inefficient. In reality, these claims would not be brought as individual actions
since the damages owed to each Class Member will be relatively small. Class Members
 22

would have no redress for the spectrum of damages they have suffered as a consequence
of the Defendants’ conduct. A class proceeding will avoid inconsistent findings and will
promote the goals of class action litigation.

85. As such, there is “some basis in fact”, on the record before the Court, that a class
proceeding is the preferable procedure for the fair and efficient resolution of the common
issues.

s.4(1)(e)

86. Section 4(1)(e) of the Act requires that there be a representative Plaintiff who:

a. would fairly and adequately represent the interests of the class,

b. has produced a plan for the proceeding that sets out a workable method of
advancing the proceeding on behalf of the class and of notifying Class
Members of the proceeding, and

c. does not have, on the common issues, an interest that is in conflict with the
interests of other Class Members.

87. The Society has standing under s.2(4) of the Class Proceedings Act as well as
public interest standing.

Section 2(4) of Class Proceedings Act

88. Section 2(4) displays the flexibility of the Class Proceedings Act that should be
utilized in achieving the objectives of the Act. A representative plaintiff referred to in s.
2(4) is not a member of the class and would not be linked to the defendants by a cause
of action. Rather the link would be between the defendants and the class, with the
representative plaintiff simply the spokesperson of the class.

MacKinnon v. Instaloans Financial Solution Centres (Kelowna) Ltd., 2004 BCCA 472
(“MacKinnon”) at para. 50.

See also Elder Advocates of Alberta Society v. Alberta, 2009 ABCA 403
at para. 69, 81 - 83, affd in part 2011 SCC 24
 23

89. The Plaintiff also has public interest standing to bring this action.

90. The Plaintiff challenged the vaccination mandates in healthcare settings by way of
petition in Vancouver Registry file no. S-2110229.

91. The Honourable Justice Coval concluded that the Plaintiff had public interest
standing to proceed with that petition.

Canadian Society for the Advancement of Science in Public Policy v Henry,

2022 BCSC 724 at para. 72

92. The main purpose of granting public interest standing is to prevent public acts or
legislation from being immunized from challenge and to enable courts to scrutinize the
legality of government action and strike down unconstitutional laws. This has led to a
broadening of access to the courts.

Canadian Council of Churches v. Canada (Minister of Employment and Immigration),

1992 CanLil 116 (SCC), [1992] 1 SCR 236 at 248-251

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence
Society, 2012 SCC 45 (CanLIl), [2012] 2 SCR 524 (“Downtown Eastside”) at paras. 22,
31-34, 50

93. _In exercising their discretion to grant or refuse public interest standing, judges must
balance access to justice with the preservation of judicial resources, with a particular view
to upholding the legality principle.

Council of Canadians with Disabilities v. British Columbia (Attorney General),

2020 BCCA 241, para. 86

94. In the 1970s and early 1980s, the Supreme Court of Canada introduced public
interest standing into the law allowing litigants to challenge the constitutional validity of
legislation in exceptional cases where a directly affected individual could not reasonably be
expected to do so.

Thorson v. Canada (Attorney General), [1975] 1$.C.R. 138;

 24

Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265;

Borowski v. Canada (Attorney General), [1989] 1 SCR 342.

95. ‘The test set out in Borowski is as follows:

(a) whether there is a serious justiciable issue raised by the claim;

(b) whether the plaintiff is directly affected by the action or, if not, has a genuine
interest in its outcome; and

(c) whether the action is a reasonable and effective means to bring the claim to
court.

96. Judges must apply the Borowski test in a flexible and purposive manner. They are
not to be treated as hard and fast requirements, nor to be applied mechanically. Judges
must interpret and apply these governing principles in a liberal and generous way.

Council of Canadians with Disabilities, para. 86

97. Achallenge to the constitutionality of legislation is always justiciable.

Canadian Bar Association v. HMTQ et al, 2006 BCSC 1342 at paras. 23, 36.

Council of Canadians with Disabilities at para. 90

98. |The genuine interest factor is concerned with whether the petitioner has a real stake
in the proceedings or is engaged with the issues in question.

Council of Canadians with Disabilities at para. 98

99. ‘This third factor requires consideration of whether the proposed suit is, in all of the
circumstances, a reasonable and effective means to bring the challenge to court.

Downtown Eastside at para. 44

100. The mere possibility that a private litigant may challenge the provisions is not
sufficient to negate the third criterion of the Borowski factors.
 25

Downtown Eastside at para. 51

101. The Plaintiff meets these three criteria. In his Affidavit made on January 10, 2022,
deposes that the Plaintiff will do its best to fairly and adequately represent the
interests of Class Members. The Plaintiff does not have, on the common issues, an interest
that conflicts with the interests of other Class Members.

102. In the alternative, if the Society is found to lack standing to bring this action, the
Plaintiff seeks to add three individuals,
The plaintiff seeks to add as an alternate representative of the class
members, as a representative of the proposed Vaccination Subclass and the
Religious Subclass, and as a representative of the Medical Subclass.

103. Each of these individuals meets the three criteria and have deposed that each will
do his or her best to fairly and adequately represent the interests of Class Members. Neither
has on the common issues, an interest that conflicts with the interests of other Class
Members.

104. The proposed litigation plan attached as Schedule B addresses the progression of
the action and proposes a workable plan for pursuing the matter through to the trial of the
common issues and, ultimately, for distributing damages to Class Members. The plan is
flexible, and provides for ongoing review by the parties and the Court as the litigation
proceeds.

105. Certification of this action as a class proceeding meets the three goals of class
proceedings as described by the Supreme Court of Canada in the trilogy of Rumley v. British
Columbia, 2001 SCC 69, Hollick v. Toronto (City), 2001 SCC 68, and Western Canadian
Shopping Centres Inc. v. Dutton, 2001 SCC 46, and affirmed in A/C Limited v. Fischer, 2013
SCC 69, namely:

a. access to justice;

b. judicial economy; and

c. behaviour modification.
 26

Part 4: MATERIAL TO BE RELIED ON

1. Pleadings;

2. Affidavit #1 of made September 13, 2021;

3. Affidavit #1 of made January 10, 2022;

4, Affidavit #2 of made January 10, 2022;

5. Affidavit #1 of made January 3, 2022;

6. Affidavit #1 of made January 4, 2022;

7. Affidavit #1 of made January 4, 2022;

8. Affidavit #1 of made January 6, 2022;

9. Affidavit #1 of made January 7, 2022;

10. Affidavit #1 of made January 7, 2022;

11. Affidavit #1 of made January 10, 2022;

12. Affidavit #2 of made October 25, 2021;

13. Affidavit #3 of made January 10, 2022;

14. Affidavit #2 of made May 9, 2022;

15. Affidavit #2 of made May 5, 2022;

16. Affidavit #4 of made May 3, 2022.

17. | Such further materials as may be advised.

The Applicant estimates that the application will take five days.

This matter is not within the jurisdiction of a Master.

 27

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,

(b) file the original of every affidavit, and of every other document, that

(i) you intend to refer to at the hearing of this application, and

(ii) has not already been filed in the proceeding, and

(c) serve on the applicant 2 copies of the following, and on every other party of
record one copy of the following:

(i) a copy of the filed application response;

(ii) a copy of each of the filed affidavits and other documents that you intend
to refer to at the hearing of this application and that has not already been
served on that person;

(iii) if this application is brought under Rule 9-7, any notice that you are
required to give under Rule 9-7 (9).

Date: June 3, 2022 (h es

Signattir lawyer for Applicant
POLI . FURTULA
 28

To be completed by the court only:

Order made
[] in the terms requested in paragraphs ..................... of Part 1 of this notice of
application
[] with the following variations and additional terms:

POR POORER MAREE E HHT EMR DEDOHRHEEEHRHEESSESOHREEH STH SEH SETS SHEE HEHEHE THOFOHT HS ESEHESESHSSFOHHS HEHEHE HeaBeeaneseeee

Signature of[ ] Judge [ ] Master

Appendix

[The following information is provided for data collection purposes only and is of no legal
effect.|

THIS APPLICATION INVOLVES THE FOLLOWING:

[Check the box(es) below for the application type(s) included in this application.]

[] discovery: comply with demand for documents

[] 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
 29

] service

] mediation

] adjournments

[] proceedings at trial

] case plan orders: amend

[] case plan orders: other

] experts

[X] other - certification

[Page Intentionally Blank]

 30

SCHEDULE “A” - PROPOSED COMMON ISSUES

General Class

Emergency Program Act

1. Did the Minister act reasonably and lawfully to declare a state of emergency in British
Columbia exist under the Emergency Program Act, RSBC 1996, c. 111 (“EPA”) on
March 18, 2020?

Did the Minister act reasonably and lawfully to continue extending the state of
emergency in British Columbia under the EPA on each of the dates where he did so
after March 18, 2020?

Was the continued state of emergency since March 18, 2020 proportional and
necessary to deal with the nature of the problems posed by COVID-19 in British
Columbia?

Provincial Health Act

4. Did the Provincial Health Officer have grounds to reasonably believe that the
conditions set out in s. 52 of the Public Health Act, SBC 2008, c 28 (“PHA”) exist on
March 17, 2020?

Did the Provincial Health Officer have grounds to reasonably believe that the
conditions set out in s. 52 of the Public Health Act, SBC 2008, c 28 (“PHA”) exist past:

a. May 2020?

b. June 24, 2020?

c. June 30, 2021?

Did the Provincial Health Officer fail to provide notice that the emergency has passed
despite reasonable medical, statistical, and scientific evidence to the contrary past:
 31

a. May 2020?

b. June 24, 2020?

c. June 30, 2021?

_ 7. Did the orders listed in questions 10 to 17 of this Schedule A exceed the Provincial
Health Officer's statutory authority?

8. Were the PHA Orders inconsistent with established medical and scientific principles
and the actual ramifications of COVID-19 in British Columbia?

9. Are the PHA Orders unreasonable?

Charter

Religious Subclass

10. Do the following Orders made under the EPA and PHA that prohibit or restrict religious
gatherings infringe on the s. 2(a) Charter right of freedom of conscience and religion:

a. PHA Orders: “Gatherings and Events” - August 7, 2020, September 18, 2020,
November 19, 2020, December 2, 9, 15 and 24, 2020 and subsequent

“Gatherings and Events” orders, each as amended from time to time;

b. Ministerial Orders M314 (Aug. 20, 2020), M358 (Sept. 20, 2021), M416 (Nov.
13, 2020), M013 (January. 8, 2021); and

c. Such further orders as may be advised at trial.

General Class

11. Do the following orders made under the EPA and PHA that prohibit peaceful
gatherings infringe on the s. 2(c) Charter right of freedom of peaceful assembly and s.
2(d) Charter right of freedom of association:
 32

PHA Orders: “Gatherings and Events” - August 7, 2020, September 18, 2020,
November 19, 2020, December 2, 9, 15 and 24, 2020, September 10, 2021
and subsequent “Gatherings and Events” orders, each as amended from time
to time;

PHA Orders: “Post-secondary Institution Housing COVID-19 Preventive

Measures” — September 9, 2021 as amended from time to time;

Ministerial Orders M314 (Aug. 20, 2020), M358 (Sept. 20, 2021), M416 (Nov.
13, 2020), M013 (January. 8, 2021); and

d. Such further orders as may be advised at trial.

Medical Subclass

12. Do the following orders, directives, or decrees that prohibit or limit medical procedures
infringe on the s. 7 Charter right of life, liberty and security of the person and s. 15
equality rights:

a. Cancellation of surgeries and other procedures made on or about March 16,

2020;

b. BC Centre for Disease Control “Public health statement on extension of the

interval between first and second doses of COVID-19 vaccines in BC” -
updated 24 June 2021;

c. Such further orders, directives or decrees as may be advised at trial.

General Class

13. Do the following orders, directives or decrees made under the EPA that require
quarantine, limit the “freedom of peaceful assembly” under s. 2(c) of the Charter, and
the right not to be arbitrarily detained or imprisoned under s. 9 of the Charter: CHECK
RE QUARANTINE
 33

a. Ministerial Orders M172-2021 (April 21, 2021), M182 (April 30, 2021), M212
(May 25, 2021);

b. Such further orders as may be advised at trial.

14. Do the following orders that limit or prohibit reconsideration of PHA Orders infringe on
s. 7 of the Charter as they do not accord with the principles of fundamental justice:

a. PHA Order “Variance of Existing Orders to Suspend Reconsideration — April

21, 2021";

b. PHA Order: “Variance of Gatherings and Events & Food And Liquor Serving
Premises Orders to Suspend Reconsideration re Proof of Vaccination” —
November 12, 2021 and subsequent amendments;

c. PHA Order: “Hospital and Community (Health Care and Other Services)
COVID-19 Vaccination Status Information and Preventive Measures” —
November 18, 2021 and subsequent amendments;

d. Such further orders as may be advised at trial.

15. Was the process of reconsideration of the Provincial Health Officer's PHA Orders
contrary to the principles of fundamental justice?

Vaccination Subclass

16. Do the following orders or policies of the Provincial Health Officer that mandate
vaccination infringe on the s. 7 Charter right of life, liberty and security of the person
and s. 15 equality rights particulars of which include:

a. PHA Order: “Food and Liquor Serving Premises — September 10, 2021” and
further amendments;

b. PHA Order: “Gatherings and Events — September 10, 2021” and further
amendments;
 34

c. PHA Order: “Post-secondary Institution Housing COVID-19 Preventive

Measures” — September 9, 2021 and further amendments

d. PHA Order: “Covid-19 Vaccination Status and Preventive Measures Order —

August 20, 2021, September 9, 2021 and further amendments;

e. PHA Order: “Residential Care Staff COVID-19 Preventive Measures PHO

Order” — September 2, 2021 and further amendments;

f. PHA Order: “Variance of Existing Orders to Suspend Reconsideration — April

12, 2021 and further amendments;

b. BC Centre for Disease Control “Public health statement on extension of the

interval between first and second doses of COVID-19 vaccines in BC” -
updated 24 June 2021; and

a. Such further orders and policies as may be advised at trial.

17. If any of the orders listed in questions 10 to 17 of this Schedule A violate the Charter,
can such violations be saved by section 1 of the Charter?

Damages

18. Are damages pursuant to s. 24 of the Charter an appropriate and just remedy for the
breaches of Charter rights?

19. If the Defendants are liable to the Class Members for damages, what is the
appropriate quantum of damages?

20. Should the court make an aggregate damages award for all or part of the damages
pursuant to Part 4, Division 2 of the Act? If so, in what amount?

21. If awarding aggregate damages is not appropriate in the circumstances, what is the
appropriate method of assessing damages?

22. |Iss.92 of the PHA, with respect to Charter damages constitutionally valid?
 35

23. Should the Defendants pay the cost of administering and distributing the Plaintiff and
Class Member’s recovery? If so, in what amount?

24. Would damages fulfill one or more of the related functions of compensation,
vindication of the right, and/or deterrence of future breaches?

25. Have the Defendants demonstrated countervailing factors that defeat the functional
considerations that support a damage award and render damages inappropriate or
unjust?

26. What is the appropriate quantum of damages?

 36

SCHEDULE “B” - PROPOSED LITIGATION PLAN

CLASS COUNSEL AND THE RESOURCES AVAILABLE TO PROSECUTE THE

ACTION

1. The Plaintiff counsel (“Class Counsel”) possesses the requisite knowledge, skill,
experience, personnel, and financial resources to prosecute this class action.

2. Class Counsel anticipate that prosecuting this action will require:

a. reading, organizing, profiling, scanning, managing and analyzing thousands

of documents;

b. the analysis of complex legal issues; and

c. expert evidence.

THE COMPOSITION OF THE CLASSES

3. At present, the Class is defined as:

All persons residing or doing business in British Columbia who, since

on or after March 17, 2020, have been subject to orders, directives, or
decrees or actions of the defendants made in response to the Covid-
19 virus and/or pursuant to the Emergency Program Act and/or Part 5
of the Public Health Act (the “Class’).

4. The sub-Classes are defined as:

i. Medical Subclass:

British Columbia residents whose access to medical procedures were

cancelled or delayed due to orders, directives or decrees of the
defendants in response to the Covid-19 virus and/or made pursuant to
the Emergency Program Act and/or Part 5 of the Public Health Act;

li. Vaccination Subclass:

British Columbia residents who were not double vaccinated for Covid-
19 between September 13, 2021 to April 8, 2022;
 37

iii. Religious Subclass:

British Columbia residents whose religious beliefs prevented them from

attending in-person religious gatherings and/or were not vaccinated
against Covid-19 due to their religious beliefs.

REPORTING TO AND COMMUNICATING WITH CLASS MEMBERS

5. Based on publicly available information, particularly newspaper and other media

reports, class counsel estimates that at least several hundred thousand people in
British Columbia have been affected by the Defendants’ policies since the start of
the class period.

6. The Plaintiff has developed a website for this proposed class proceeding at
https://covidconstitutionalchallengebc.ca (the “Plaintiffs Website”). Class counsel
also has a website dedicated to its class action work = at
https://citadellawyers.ca/current-class-actions/ (“Counsel Website’) Current
information on the status of the action is posted on the Plaintiffs Website and will be
posted on Counsel Website (collectively, the “Websites”) and will be updated
regularly. Copies of some of the Court decisions and other information relating to the
action will be accessible on the Websites.

7. |The Counsel Website contains the contact information of class counsel and allows
Class Members to submit enquiries to class counsel. Enquiries are sent directly to
Class Counsel who will promptly respond.

8. Class Counsel is also maintaining a database of potential Class Members who have
identified themselves as interested in participating in the action.

PLEADINGS

9. The Plaintiff will ask the Court to order the Defendants to deliver any further
amendments to the Response to Civil Claim in accordance with the Supreme Court
Civil Rules or the general practice of the Court in respect of class proceedings.
 38

LITIGATION SCHEDULE

10. The Case Management Judge has set a litigation schedule, which is subject to change
as follows:

Dat
August 25, 2021 Deadline for Defendants to provide demand for
particulars

September 15, 2021 Plaintiff's Amended Notice of Civil Claim be filed and
served

September 27, 2021 Further Judicial Management Conference be held during

week of September 27, 2021

October 8, 2021 Defendants' Amended Response to Civil Claim (if

applicable)

November 30, 2021 Plaintiff to disclose the expected number of expert

reports to be tendered on certification and area(s) of
expertise and, if available and conclusively determined,
the identity of experts

January 10, 2022 Delivery of Plaintiff's certification application and

affidavits, including expert evidence

March 11, 2022 Delivery Defendants’ certification response and affidavits

as well as rule 9-5/9-6 application materials, including
expert evidence

April 1, 2022 Delivery of Plaintiff's reply materials on certification, and

application response

To be set Delivery of Plaintiffs certification argument

To be set Delivery of Defendants’ certification argument

To be set Delivery of Plaintiff's reply certification argument

December 12, 2022 Certification hearing (to be heard contemporaneously

with Defendants’ Rule 9-5 /9-6 Application)

11. A further case conference will be scheduled after the certification application, to
finalize the schedule for the following:

a. delivery of any further amended Response to Civil Claim;

 39

. document production;

oO
c. examinations for discovery;

d. delivery of expert reports; and

e. trial of the common issues.

12. The Plaintiff may also ask that the litigation schedule be amended from time to time as
required.

DOCUMENT EXCHANGE AND MANAGEMENT

13. The Defendants possess most, if not all, of the documents relating to scientific and
other information they rely on, communications with healthcare practitioners and their
corresponding governing bodies, and other documents. These documents will be
produced to Class Counsel through the normal production, cross-examination and
examination for discovery processes after certification of the proceeding.

14. Class Counsel anticipate and are able to handle the intake and organization of the
large number of documents that will likely be produced by the Defendants after
certification. Class Counsel will use data management systems to organize, code,
and manage the documents.

15. If required, the documents may be maintained on a secure, password-protected

internet website for access by Class Counsel.

16. The same data management systems will be used to organize and manage all
relevant documents in the possession of the Plaintiff although the Plaintiff has a
relatively few documents relating to the common issues.

17. The parties will execute a version of the standard protocol under the Electronic
Evidence Practice Direction - July 1, 2006.
 40

NOTICE OF CERTIFICATION AND OPT-OUT PROCEDURE

18. Ifthe action is certified as a class proceeding, the Court will be asked to:

a. settle the form and content Notice of Certification and the opt-out period,
within 30 days of the issuance of the certification order (the “Certification
Order’);

b. set an opt-out date of 90 days after the date of the Certification Order; and

c. settle the means by which the Notice of Certification and the opt-out period
will be given (the “Notice Process”).
The Plaintiff proposes that the Notice of
Certification be disseminated in accordance with the following Notice
Process:

i. published once in a full page advertisement in the Vancouver Sun and

The Province (Vancouver);

li. posted on Class Counsel's Website;

iii. delivered by Class Counsel to any Class Member who requests it.

19. The Plaintiff will request that the costs of the Notice Process be paid for by the
Defendants.

20. The Plaintiff proposes the following opt-out procedure:

a. 90 days after the Certification Order, a person may opt-out of the class
proceeding by sending a written election to opt-out to a person designated
by the Court;

b. a guardian may opt-out a minor or a person who is mentally incapable

without leave of the Court; and

c. no Class Member may opt-out of the class proceeding after the expiration of
the opt-out period without leave of the Court.
 41

DISCOVERY

21. Within 30 days of the date of the Certification Order, the Plaintiff shall deliver its initial
list of documents and provide copies of those documents to the Defendants in
electronic form.

22. Within 30 days of the Certification Order, the Defendants shall deliver their initial list
of documents and provide copies of those documents to the Plaintiff in electronic
form.

23. Any additional production shall be made by the parties on an ongoing basis
thereafter. For greater certainty and to achieve efficiency, parties must respond to
any demands for additional documents pursuant to Supreme Court Civil Rule 7-1(10)
and (11) within 14 days of receipt of the demand.

24. Within 60 days of the Certification Order, a schedule for Examinations for Discoveries
shall be set at a Case Management Conference. For greater certainty, Examinations
for Discoveries shall not have to await the completion of the document discovery
process. In advance of the Case Management Conference, the Defendants shall
provide a list of at least three proposed representatives for examinations and their
relevant areas of knowledge. This is without prejudice to the Plaintiff's right to select
an alternative representative or to seek additional discovery from a witness or
witnesses.

25. Examinations for Discoveries shall be completed not less than three months before
the common issues trial.

26. The parties have leave at any time after the delivery of the Defendants’ List of
Documents to serve interrogatories in accordance with Supreme Court Civil Rule 7-
3.

27. The Plaintiff may ask the Court for an order allowing examination of multiple
 42

representatives of each of the Defendants, if necessary.

INTERLOCUTORY APPLICATIONS

28. Pursuant to s. 14(1) of the Act, the Case Management Judge shall hear all
interlocutory applications either at regular Case Management Conferences or on a
date for hearing secured at a Case Management Conference or through Trial Division
as directed by the Case Management Judge. For greater certainty and to achieve
efficiency, the parties may request and the Case Management Judge may direct on
his own motion, that applications be heard in regular Chambers.

29. All materials in support of an interlocutory application shall be delivered and filed in
accordance with the Supreme Court Civil Rules unless otherwise directed by the Case
Management Judge. If an application is being made in regular Chambers, a copy of
the application and any order must be delivered to Trial Scheduling for the attention
of the Case Management Judge.

30. No applications may be brought prior to trial under Rules 9-3, 9-4, 9-5, 9-6, 9-7, 18-2,
22-7, except with leave of the Court.

EXPERTS

31. Any expert reports that the parties intend to rely upon at trial shall be delivered in
accordance with the Supreme Court Civil Rules.

CLARIFICATION OF COMMON ISSUES

32. Following certification, Examinations for Discoveries, and the exchange of expert
opinions, if any, and before the trial of the common issues, the Plaintiff may ask the
Court for an order to clarify and/or redefine the common issues, if required.

DISPUTE RESOLUTION

33. The Plaintiff is willing to participate in mediation if the Defendants are prepared to do
so.
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TRIAL OF THE COMMON ISSUES

34. The Plaintiff will ask that the common issues trial will proceed within six months after
the completion of Examinations for Discoveries on a date to be determined.

35. The parties will exchange Witness Lists and Trial Briefs in accordance with the
Supreme Court Civil Rules. A Trial Management Conference will be held in
accordance with the Supreme Court Civil Rules.

36. In advance of the Trial Management Conference, the parties will meet and confer on
a documents agreement.

37. Assuming that the common issues are resolved by judgment in favour of the Plaintiff,
the Plaintiff will ask the court to award damages to the Class Members in the following
manner or such manner as the Court may direct:

a. An aggregate amount representing the damages for breaches of the Charter

pursuant to s.29 of the Act;

b. An aggregate amount representing the damages for personal injury, losses

and other damages pursuant to s.29 of the Act;

c. Any applicable pre-judgment and/or post-judgment interest for the above

amounts.

38. Alternatively, or to the extent that any damages issues cannot be determined on an
aggregate basis, the Plaintiff will seek orders to allow the Class Members to proceed
with the balance of the action in the manner set out below.

NOTICE OF DETERMINATION OF COMMON ISSUES

39. The Plaintiff will ask the Court to:

a. settle the form and content of a notice of determination of the common issues
(the “Notice of Determination’);
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b. order that the Notice of Determination be distributed substantially in

accordance with the Notice Process set out in paragraph 19, except that the
Notice of Determination shall not be sent to any Class Member who opted out
in accordance with the procedure set out therein; and

c. order that the costs of the distribution of the Notice of Determination be paid
by the Defendants.

INDIVIDUAL ISSUES DETERMINATIONS

40. To the extent there are any individual issues that remain to be decided, the Plaintiff
proposes that the parties convene pursuant to ss. 27 and 28 of the Act to determine
the appropriate course for any remaining issues.

41. The determination of what is the most appropriate and expeditious method for
resolving these issues will depend on what portion of damages remain to be resolved
and the evidence provided during the discovery process.

DISTRIBUTION PROTOCOL IF AGGREGATE AWARD IS MADE

42. The Plaintiff will propose a claims process to be supervised by a Court appointed
claims administrator (the “Administrator’), who will report to the Court, and whose fees
will be paid for by the Defendants.

43. Without limiting the generality of the foregoing, the Court will be asked to:

a. approve methods of distribution for any damages payable to Class Members;

b. settle the claim form (the “Claim Form”), both in web format and paper-based
format, for any Class Members that are required to submit a claim;

c. seta claims deadline by which the date the claimants will be required to file
their claims (“Claims Deadline’);
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d. direct the Administrator to hold any monies recovered at the common issues
trial and to implement the distribution plan by, among other things, receiving
and evaluating Claim Forms in accordance with protocols approved by the
Court, supervising the distribution of funds to Class Members.

44. Each claimant must deliver a completed Claim Form to the Administrator before the
Claims Deadline.

45. In and with the Claim Form, the claimant will assert the basis of his or her eligibility as
a Class Member.

46. The Administrator shall decide (the “Eligibility Decision’), based on information
submitted in the Claim Form:

a. whether or not a claimant is a Class Member who is entitled to a share of the

aggregate award of damages;

b. the share of aggregate damages to which each eligible Class Member is

entitled.

47. Upon determining a Class Member's eligibility for a share of the aggregate damages,
the Administrator shall issue an Eligibility Decision to the Class Member setting out
the amount of the Class Member's entitlement, if any, and the reasons for that
decision. The Administrator will send each Eligibility Decision by email or regular mail
to the Class Member, and file the Eligibility Decision with the Court.

48. If a Class Member disagrees with the Eligibility Decision, the Class Member may file
an Appeal form.

49. Appeals by Class Members of the Eligibility Decision will be handled by the Court.

50. The Court’s decision will be issued in a report, which will be confirmed on the
expiration of 15 days after a copy is mailed or emailed to the Appellant Class Member.
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51. As soon as practicable after the Claims Deadline, on notice to Class Counsel and the
Defendants, the Administrator will report to the Court the proposed distribution for
each Class Member including any pre-judgment interest award that has been paid to
the Administrator.

52. If there is no overall settlement with the Defendants and each claim must be proven
and assessed, then the Defendants should be required to pay to the Administrator the
amount of each judgment immediately after each report becomes final. The
Administrator shall hold the money in trust and invest it as the Court directs.

53. If a lump sum is recovered from the Defendants at the common issues trial, no
distribution to eligible Class Members shall be made until authorized by the Court. The
Administrator may make an interim distribution if authorized by the Court.

54. Each eligible Class Member shall electronically or physically sign such documents as
the Administrator may require in accordance with any protocol approved by the Court
as a condition precedent to receiving any distribution.

INSUFFICIENT RECOVERED MONIES

55. In the event the Defendants do not pay the judgments in full, the Court will be asked
to give further directions to ensure that there are no priorities among eligible Class
Members.

CY-PRES DISTRIBUTION

56. If there is a residue from the recovered monies, (and any interest that has accrued
thereon) after payment of all legal fees and expenses and administrative costs, the
Court will be asked to authorize that this residue be distributed cy-pres in accordance
with s.36.2 of the Act, part of which to be designated for designated for pro-bono legal
advice initiatives. This distribution would indirectly benefit Class Members who cannot
be located or did not submit a claim. The cy-pres distribution shall be paid in such
manner to such recipients and in such proportions as the Court may decide.
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CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES

57. The Court will be asked to fix the amount of Class Counsel fees, disbursements and
applicable taxes (“Class Counsel Fees”). Class Counsel will ask the Court to direct the
Administrator and Defendants to pay the Class Counsel Fees out of the monies
recovered or owing as a first charge.

58. The Court will be asked to fix the costs of the persons appointed to implement and
oversee the distribution plan such as the Administrator and to order payment of these
costs as a second charge any monies paid by the Defendants.

FINAL REPORT

59. After the Administrator makes the final distribution to Class Members and to any cy-
pres recipients, the Administrator shall make its final report to the Court in such
manner as the Court directs and the Court will be asked to then discharge the
Administrator.

REVIEW OF THE LITIGATION PLAN

60. This plan will be reconsidered and may be revised under the continuing case
management authority of the Court, if required, both before and after the
determination of the common issues.