No.

S210831
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN

Canadian Society for the Advancement of Science in Public Policy

PLAINTIFF

AND

His Majesty the King 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

Supplemental Submissions of the Defendants

Canadian Society for the Advancement His Majesty the King in right of the
of Science in Public Policy Province of British Columbia
Dr. Bonnie Henry in her capacity as
Polina Furtula Provincial Health Officer for the
Citadel Law Corporation Province of British Columbia
1400 – 1125 Howe Street
Vancouver, BC V6Z 2K8 Chantelle Rajotte
Emily Lapper
Trevor Bant
Ministry of Attorney General
1301 – 865 Hornby Street
Vancouver, BC V6Z 2G3
1001 Douglas Street
Victoria, BC V8W 2C5

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I. Overview

1. These supplemental submissions are necessary because, on June 5, 2023, five

weeks after the hearing concluded, the plaintiff delivered to the Court yet another
version of its proposed further amended notice of civil claim while judgment is under
reserve. 1

2. The new proposed pleading contains eight deletions, two revisions that track
submissions made by the plaintiff at the hearing, two minor additions, and six further
additions that are entirely new in the sense that they do not correspond to any
submissions that were made by the plaintiff at the hearing.

3. The defendants consent to the deletions. 2 The abandonment of the administrative

law relief makes many of the proposed common issues irrelevant to the relief sought
and provides another reason those issues should not be certified.

4. The defendants do not strenuously oppose the two revisions that track submissions
that were made by the plaintiff at the hearing, 3 nor the two minor additions. 4

5. However, the Court should decline to consider the six further additions that do not
correspond to any submissions that were made by the plaintiff at the hearing. 5
These proposed additions are a belated and improper attempt to develop new ideas
to fix problems with the pleading that were identified during the defendants’
submissions. The plaintiff’s opportunity to attempt to fix those problems was in reply,
not five weeks later in what amounts to an application to reopen its reply. The
hearing is over. Judgment is under reserve. It is not appropriate for the plaintiff to
be proposing substantively new amendments to the pleading.

1 Three applications are currently under reserve: the plaintiff’s certification application and
application to amend its notice of civil claim and the defendants’ R. 9-5 application.
2 Part 1, paras. 41, 44-46, 53.A; part 2, paras. 1, 3; part 3, para. 27.
3 Part 1, para. 8; part 3, para. 29.d.i.
4 Part 1, para. 53.B.c; part 3, para. 30.
5 Part 1, paras. 53.B.b, 53.J; part 3, paras. 11.a, 29.c, 31, 33.

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6. Alternatively, and in any event, the proposed additions do not disclose any arguable
cause of action. They do not fix any of the problems with the pleading that were
identified during the defendants’ submissions. They introduce new problems and
additional reasons the action is bound to fail. Leave to make these proposed
additions should be denied.

7. Separate from the issues raised by the June pleading, there have been a number of
developments since the hearing concluded on April 28, 2023.

8. First, the plaintiff has discontinued its Health Workers Petition, 6 likely to defend
against the defendants’ submission that this action is an abuse of process. While
the discontinuance slightly lessens the plaintiff’s abuse of this Court, it does not
undo the harm that has already been done and this action remains an abuse of
process.

9. The other developments are jurisprudential. At the hearing, the defendants referred
the Court to judicial decisions from across Canada in which litigants had challenged
COVID-19 public health measures under administrative law principles or the
Charter. 7 Courts have—without exception—dismissed these challenges. Since the
hearing concluded, the body of jurisprudence against the plaintiff has solidified even
further. The Court of Appeal of Manitoba dismissed the appeal in Gateway Bible. 8
The Court of Appeal of Newfoundland and Labrador dismissed the appeal in Taylor. 9
The Supreme Court of Canada denied leave to appeal in Beaudoin 10 and Trinity
Bible. 11

6 Defined terms in these Supplemental Submissions are consistent with the Defendants’
Submissions (AR, vol. 7, tab 53).
7
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), c. 11.
8 Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56.
9Taylor v. Newfoundland and Labrador, 2023 NLCA 22.
10 Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427.
11 Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134.

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II. Abandonment of administrative law relief has implications for common issues

10. The plaintiff has re-abandoned the administrative law relief, i.e., the plaintiff is no
longer seeking an order setting aside the impugned public health orders as
unreasonable. 12 As the Court may recall, the plaintiff has flip-flopped several times
on whether it is seeking this relief. 13

11. The re-abandonment of the administrative law relief is fatal to proposed common
issues 1-9, which are now disconnected from the relief sought. 14 Those proposed
common issues ask, in essence, whether the impugned public health orders are
unreasonable as a matter of administrative law. But the plaintiff is no longer seeking
declarations that the impugned public health orders are unreasonable as a matter
of administrative law. Proposed common issues 1-9 are a bridge to nowhere.

12. As Justice Branch wrote in Kett, common issues “need to advance the litigation in a
material way for the benefit of class members”. The essence of a common issue is
that it is “a substantial ingredient of each class member’s claim”. 15 Given the re-
abandonment of the administrative law relief, proposed common issues 1-9 would
not advance the litigation for class members. They are not an ingredient of each
class member’s claim. They have nothing to do with the claim. This is another
reason that proposed common issues 1-9 should not be certified.

III. Court should decline to consider new proposed additions

13. The Court should decline to consider the six additions in the June pleading that do
not correspond to any submissions that were made by the plaintiff at the hearing. 16
In the time since the hearing ended, the plaintiff has evidently attempted to develop
new ideas to fix problems with the pleading that were identified during the

12 Part 2, paras. 1, 3.
13 See Defendants’ Submissions, para. 186 (AR, vol. 7, tab 53).
14 The latest version of the proposed common issues was handed up by the plaintiff on April 25,

2023.
15 Kett v. Mitsubishi Materials Corporation, 2020 BCSC 1879, at para. 121 (BOA, vol. 8, tab

121).
16 Part 1, paras. 53.B.b, 53.J; part 3, para. 11.a, 29.c, 31, 33.

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defendants’ submissions at the hearing. However, the plaintiff’s opportunity to

attempt to fix those problems was in reply at the hearing, not weeks after the hearing
in what amounts to an application to reopen its reply.

14. For context, the June pleading is the sixth version of the plaintiff’s proposed further
amended notice of civil claim (and the eighth version of the claim). 17 The relevant
history is as follows:

i. On May 3, 2022, the plaintiff filed an application for leave to file a proposed
further amended notice of civil claim. The application would be heard with the
certification application and the defendants’ R. 9-5 application.

ii. On May 17, 2022, the plaintiff filed an amended application for leave to file a
proposed further amended notice of civil claim.

iii. After the defendants delivered their revised certification response, the
plaintiff delivered a revised version of the proposed further amended notice
of civil claim on August 2, 2022, but backdated it to May 3, 2022.

iv. On December 12, 2022, the first day of the hearing, the plaintiff handed up a
fourth version of the proposed further amended notice of civil claim.

v. On December 14, 2022, the third day of the hearing, the plaintiff handed up
a fifth version of the proposed further amended notice of civil claim.

vi. After the plaintiffs’ submissions occupied more than four of the allotted five
days, the hearing did not complete on December 16 as scheduled.

vii. On April 24, 2023, the hearing resumed for five further days. The plaintiff’s
reply submissions occupied a full day from Thursday afternoon to Friday
afternoon. The hearing concluded on April 28. The Court reserved judgment.

17The notice of civil claim was originally filed on January 26, 2021. An amended notice of civil
claim was filed September 15, 2021.

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viii. More than five weeks later, on June 5, 2023, while judgment was under
reserve, the plaintiff delivered to the Court, over the objections of the
defendants, a sixth version of the proposed further amended notice of civil
claim (the subject of these supplemental submissions).

15. The defendants accept that the test under s. 4(1)(a) of the Class Proceedings Act 18
and R. 9-5 considers the pleading as it exists or might be amended. However, the
plaintiffs have had ample opportunity to propose amendments—and have done so
on numerous occasions, including twice during the hearing. If there were yet more
amendments the plaintiff wished to propose in reply to the defendants’ submissions,
the appropriate time to do so was in reply.

16. The six additions in the June pleading are entirely new in the sense that they that
do not correspond to any submissions that were made by the plaintiff at the hearing:

i. Part 1, para. 53.B.b makes a new allegation about the self-isolation guidance
challenged under s. 9 of the Charter, that unparticularized “PHO conduct”
would “lead a reasonable person to conclude that they had no choice but to
comply”.

ii. Part 1, para. 53.J and part 3, para. 11.a plead a new principle of fundamental
justice for the s. 7 Charter claim, the principle against gross
disproportionality.

iii. Part 3, para. 29.c pleads a new s. 15 argument, that “treating everyone
equally created a distinction on an enumerated ground”.

iv. Part 3, para. 31 pleads a new legal basis for the constitutional challenge to
the immunity clause in s. 92 of the Public Health Act. 19

v. Part 3, para. 33 pleads vicarious liability for the first time.

18 Class Proceedings Act, R.S.B.C. 1996, c. 50.

19 Public Health Act, SBC 2008, c. 28.

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17. These proposed amendments raise new issues, i.e., issues that were not raised at
the hearing. The Court should not entertain them now. The parties have fully
exercised their right to be heard, the hearing is over, the record before the Court is
settled, and the Court must be given time to reach a decision.

IV. Proposed additions raise new problems for plaintiff

18. Alternatively, and in any event, the proposed additions do not disclose any arguable
cause of action. They do not fix any of the problems with the pleading that were
identified during the defendants’ submissions. They introduce new problems and
additional reasons the action is bound to fail. Leave to make these proposed
additions should be denied.

19. The defendants will focus on two of the proposed additions: the new principle of
fundamental justice and the new legal basis for the constitutional challenge to the
immunity clause in s. 92 of the Public Health Act.

20. In the s. 7 context, gross disproportionality means that the effects of the impugned
law or order “are so grossly disproportionate to its purposes that they cannot
rationally be supported”. The principle against gross disproportionality “only applies
in extreme cases where the seriousness of the deprivation is totally out of sync with
the objective of the measure”. The Supreme Court of Canada has given the example
of a law with the purpose of keeping the streets clean that imposes a sentence of
life imprisonment for spitting on the sidewalk. 20

21. The plaintiff’s new invocation of gross disproportionality 21 runs headlong into
Beaudoin. The Court has heard the defendants’ primary submission that s. 7 is not
engaged at all because the impugned orders do not deprive anyone of their life,
liberty, or security of the person. 22 However, even if some of the impugned orders
did deprive some putative class members of their life, liberty, or security of the

20 Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 120 (BOA, vol. 3, tab 33).
21 Part 1, para. 53.J; part 3, para. 11.a.
22 Defendants’ Submissions, paras. 234-252 (AR vol. 7, tab 53).

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person, the reasoning of the Court of Appeal in Beaudoin entails that such
deprivations were consistent with the principles of fundamental justice.

22. As the Court will recall, Beaudoin dealt with the prohibition on religious gatherings
during the second wave of the pandemic. A prohibition on religious gatherings
engages s. 2(a) and is of a different order of seriousness than the restrictions on
bars, restaurants, and sporting events on which the plaintiff largely focuses. Justice
Fitch for a unanimous Court of Appeal in Beaudoin drew the following conclusions:

In my view, the limitation on the religious freedom of the

appellants stemming from the G&E orders has been shown to be
a proportionate one in light of the unprecedented risk to public
health that arose during the second wave of the virus, the need
to take precautions to stop preventable deaths from occurring,
and the need to protect the capacity of the healthcare system.

[…]

I am satisfied that the PHO’s decision-making framework,

applied by her in the day-to-day, was informed by the
proportionality principle—that public health interventions had to
be proportionate to the nature of the apprehended harm and not
unnecessarily limit constitutional rights. This principle lies at the
core of the BCCDC Ethics Guide.

[…]

I am also satisfied that the orders made by the PHO were

proportionate to the very serious threats facing the public during
the second wave of the pandemic. 23

23. While these conclusions were expressed as part of the Doré analysis in a s. 2(a)
claim, they apply with equal force to the principles of fundamental justice in a s. 7
claim. Given that the Court of Appeal has held that the restrictions on religious
gatherings were proportionate to their public health objectives, this Court could not
hold that less serious restrictions were grossly disproportionate to their public health

23Beaudoin at paras. 267, 274, 276 (emphasis added) (Defendants’ Supplemental BOA, tab
231).

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objectives. The plaintiff’s new gross disproportionality allegation fails as a matter of

stare decisis.

24. The new legal basis for the constitutional challenge to s. 92 of the Public Health Act
fails to disclose a cause of action because it is a bare assertion of law unsupported
by any pleaded facts. 24 At the hearing, the defendants made the submission that no
factual or legal basis was pleaded in support of the constitutional challenge to
s. 92. 25 The plaintiff had not even identified whether the constitutional challenge was
based on the Charter, the division of powers, or something else like s. 96 of the
Constitution Act, 1867. 26 The new proposed addition invokes the Charter, but there
is still nothing pleaded that would explain why the plaintiff says s. 92 of the Public
Health Act is contrary to the Charter. There is just a bare assertion that it is.

25. Hinkson C.J.S.C. recently remarked on the importance of pleadings in a proposed

class proceeding: “In the context of a large, complex class action as the one
proposed here, it is particularly important that the pleadings adequately define the
issues in dispute”. 27 The plaintiff’s bare allegation that s. 92 of the Public Health Act
is somehow contrary to the Charter does not adequately define the issues in dispute
and for that reason fails to disclose an arguable cause of action.

V. Discontinuance does not remedy abuse of process

26. On June 6, 2023, the plaintiff and Mr. Warner filed a notice of discontinuance in their
Health Workers Petition. Their goal was presumably to defend against the
defendants’ submission that this action is an abuse of process. To be fair, it probably
does make this action slightly less abusive. However, it is not enough to undo the
harm that has already been done and this action remains an abuse of process.

27. The doctrine of abuse of process engages the inherent power of the Court to prevent
its processes from being misused in a manner that would bring the administration of

24 Part 3, para. 31.

25 Defendants’ Submissions, para. 282 (AR vol 7, tab 53).
26 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
27 O’Connor v. Canadian Pacific Railway Limited, 2023 BCSC 1371 at para. 120.

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justice into disrepute. 28 It brings the administration of justice into disrepute when a
litigant commences multiple proceedings about the same dispute, hoping to
preserve its options before deciding which proceeding to ultimately pursue. When
the litigant makes its choice and discontinues one, that does not undo the abuse.

28. Stanford is a helpful authority. The plaintiff had commenced two proceedings about
the same dispute, one in Small Claims and one in this Court. The defendants then
applied to strike and dismiss the Supreme Court action as an abuse of process. In
granting the application, Justice Horsman, then of this Court, described it as “well
established as a matter of common law that the commencement by a plaintiff of
more than one action in the same jurisdiction arising from the same dispute is an
abuse of court process”. 29 She concluded it was not open to the plaintiff to
commence two proceedings to keep his options open:

the duplicative nature of the Supreme Court action is evident in

the plaintiff's motivation for filing the action; that is, to
simultaneously preserve the jurisdiction of the Supreme Court
and the Provincial Court in relation to the dispute until the plaintiff
elects his final venue of choice.

[…]

The fact is that the plaintiff faced an election which commonly

faces litigants in deciding whether to bring an action in Small
Claims Court or Supreme Court. On the one hand, Small Claims
proceedings are less costly and less procedurally complex; on
the other hand, there are monetary limits on recovery. Where a
party has a claim that may exceed the monetary limits of the
Small Claims Court jurisdiction, they must decide whether to
sacrifice the potential for greater recovery in Supreme Court in
favour of the advantages of a less costly and more expedient
process in Small Claims Court.

However difficult this dilemma may prove for a plaintiff, an

election must be made. It is not open to a party to sue in both
courts at the same time in relation to the same matter as the
plaintiff has done. That is an abuse of court process. 30

28 Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37.

29 Stanford v. Beazley, 2019 BCSC 671 at para. 39 (emphasis added).
30 Stanford at paras. 39, 41, 45-46.

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29. The same may be said of the choice between a judicial review and an action for
damages. Each carries certain advantages and disadvantages relative to the other.
However difficult the choice between them may be, a litigant must choose. It is
abusive for a litigant to purport to choose both to preserve its options before deciding
later which one to pursue.

30. The plaintiff and Mr. Warner commenced the Health Workers Petition in November
2021, meaning they pursued it for 19 months. During those 19 months, the Health
Workers Petition consumed scarce judicial resources that would otherwise have
been available to other litigants who need and deserve access to justice. The
discontinuance of the Health Workers Petition avoids further harm but does not undo
the harm that has already been done.

31. And, of course, the discontinuance of the Health Workers Petition does not change
anything about the Gatherings Petition. 31 Even after Chief Justice Hinkson has
dismissed the Gatherings Petition, the plaintiff repeats in this action the very same
arguments it made to Chief Justice Hinkson in relation to the very same impugned
orders. Such conduct is fundamentally abusive, as it wastes judicial resources and
denies access to justice for more deserving litigants.

VI. Jurisprudence has solidified against plaintiff

32. At the hearing, the defendants referred the Court to judicial decisions from across
Canada in which litigants had challenged COVID-19 public health measures under
administrative law principles or the Charter. Courts have—without exception—
dismissed these challenges. Since the hearing concluded, the body of jurisprudence
against the plaintiff has solidified even further.

31 The plaintiff continues to actively pursue an appeal from the Gatherings Petition. The appeal
is currently set to be heard in October 2023.

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33. The Court of Appeal of Manitoba dismissed the appeal in Gateway Bible. Like
Beaudoin and Trinity Bible, Gateway Bible was a challenge to restrictions on
religious gatherings based mostly on s. 2(a).

34. The Court of Appeal of Newfoundland and Labrador dismissed the appeal as moot
in Taylor. Taylor was a challenge to travel restrictions.

35. The Court of King’s Bench of Alberta released its decision in Ingram. 32 Unlike in this
action, there was an issue in Ingram about whether the impugned orders had
actually been made by cabinet rather than the Chief Medical Officer. The Court
found the orders had been made by cabinet and were therefore invalid under Alberta
legislation, which requires that orders be made by the Chief Medical Officer.
However, the Court also considered whether the orders would have been
constitutional if they had been made by the Chief Medical Officer, and concluded
they would have been.

36. Lastly, the Supreme Court of Canada denied leave to appeal in Beaudoin 33 and
Trinity Bible. 34 This does not mean the Supreme Court of Canada has upheld these
decisions, but it does mean they are final.

37. In short, the weight of authority against the plaintiffs is even more overwhelming
than it was at the conclusion of the hearing. Every reported COVID-19 decision in
Canada is against the plaintiff, except perhaps some of the obiter in the first instance
decision in J.N. that was reversed by the Court of Appeal for Ontario. 35

38. When this action was filed in January 2021, there was not yet any jurisprudence
about the public health measures that were adopted in response to COVID-19. Over
the past two and a half years, however, the jurisprudence has developed. As the
jurisprudential walls have closed in around the plaintiff, the plaintiff has pretended

32 Ingram v. Alberta (Chief Medical Officer of Health), 2023 ABKB 453.

33 2023 CanLII 72130 (S.C.C.).
34 2023 CanLII 72135 (S.C.C.).
35 J.N. v. C.G., 2022 ONSC 1198, rev’d 2023 ONCA 77 (Defendants’ Supplemental BOA, tab

240).

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not to see them. The plaintiff makes submissions that contradict binding conclusions
of the Court of Appeal, without addressing stare decisis. The plaintiff makes
submissions that contradict the conclusions of this Court in other proceedings,
including one proceeding brought by the plaintiff itself, without addressing Hansard
Spruce Mills 36 or res judicata. The weight of authority against the plaintiff is simply
too heavy to displace. Certification should be denied and the action should be
dismissed.

All of which is respectfully submitted.

Date: August 30, 2023

Chantelle Rajotte

Emily Lapper

Trevor Bant

Counsel for His Majesty the King 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

36 Re Hansard Spruce Mills Limited, 1954 CanLII 253 (B.C.S.C.).

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