Citadel law corporation Philip J.

Dougan
1400-1125 Howe street Silvano S. Todesco
Vancouver BC v6z 2k8 Polina H. Furtula*•
PH: 778-945-9990

______________________________________________________________________________
File No. 1502-1

April 12, 2024

VIA EMAIL (sc.civil_va@bccourts.ca)

Manager
Supreme Court Scheduling
800 Smithe Street
Vancouver, BC V6Z 2E1

Dear Sirs/Mesdames:

Re: Canadian Society for the Advancement of Science in Public Policy v. Her Majesty
the Queen in Right of the Province of British Columbia et al,
SCBC Vancouver Registry File No. S210831

We are counsel to the plaintiff in the above noted matter.

Please provide this letter and attachments to Mr. Justice Crerar who is assigned as the Judicial
Management Judge in the above noted matter under the Class Proceedings Act.

Further to the April 2, 2024 Memorandum to Counsel by Justice Crerar, we write to provide
additional authorities decided since the last submissions that bear upon the issues.
Each authority is summarized with a brief explanation as to which issue it pertains to.
Additional Authorities
Class Action Procedure
Pugliese v. Chartwell, 2024 ONSC 1135:

Six of eight proposed class actions, brought by the estates of persons who died of COVID-19 or
by individuals infected with COVID-19 in Ontario long term care homes, were certified. The
plaintiffs put forward a number of causes of action: negligence, breach of fiduciary duty, breach
of contract, breach of the Occupiers Liability Act, and breach of section 7 of the Canadian Charter
of Rights and Freedoms. The court found the cause of action in negligence was the only one that
was not bound to fail. [para. 1, 18, 307]
This case provides a useful example that certification is not an all or nothing endeavor, and that
the Court has discretion in determining what aspects of a proposed class action may be certified.

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CITADEL LAW CORPORATION
*Denotes Law Corporation 1400-1125 Howe Street, Vancouver, BC V6Z 2K8
•Associate Counsel 120-256 Wallace Street, Nanaimo, BC V9R 5B3

Polina Furtula 778-945-9990 pfurtula@citadellawyers.ca

 Citadel law corporation
1400-1125 Howe Street, Vancouver, BC V6Z 2K8
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Public Interest Standing

Kassian v. British Columbia, 2023 BCCA 383:
The BC Court of Appeal ruled that the appeals of the decisions of C.J. Hinkson with respect to
vaccination passport challenges, while moot, should be heard. The Court also ruled that hearing
the appeal on the issue of standing of the Canadian Society for the Advancement of Science in
Public Policy (“CSASPP”) would not be a useful exercise in the circumstances.
Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42:
The Canadian Civil Liberties Association and Canadian Constitution Foundation were granted
public interest standing (despite the matter being moot) regarding an application for judicial review
in respect of the Proclamation Declaring a Public Order Emergency, SOR/2022-20, made
pursuant to s. 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp.) and related enactments.
Related decisions:
Canadian Civil Liberties Association v. Canada (Attorney General), 2024 FC 36.
Canadian Constitution Foundation v. Canada (Attorney General), 2024 FC 38.

Vaccination Mandates
BC Labour Arbitration
Teamsters Local Union No. 31 v Purolator Canada Inc., 2023 CanLII 120937 (CA LA)
The arbitrator concluded that an employer’s vaccination mandates (requiring double vaccination
but no booster shots) was reasonable at first, but later became unreasonable with the changing
scientific evidence that the initial two vaccination shots did not provide sufficient immunity (without
booster) over time. The grievors were entitled to be compensated for their losses for lost wages
and benefits, [para. 42 and 43, 556, 569]
Also, in addressing an argument for issue estoppel and res judicata, the arbitrator concluded that
the fluid nature of the facts relating to the Covid-19 pandemic affected arguments relating to res
judicata and issue estoppel. [para. 556]
Australia
Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn &
Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of
Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service)
[2024] QSC 2.
In late 2021 and early 2022 directions were issued by the Commissioner of Police and Dr John
Wakefield (the Director-General of the Department of Health). The directions covered employees
in the Queensland Police Service and the Queensland Ambulance Service and required
employees to receive COVID-19 vaccinations and booster doses. If an employee did not comply

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 Citadel law corporation
1400-1125 Howe Street, Vancouver, BC V6Z 2K8
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with the relevant direction then the employee was liable to disciplinary sanctions up to and
including termination of employment.
Two groups of employees covered by the Commissioner’s directions and one group covered by
the Director-General’s direction challenged the directions on grounds under the Judicial Review
Act and the Human Rights Act.
The Court concluded that the Commissioner, in making the decision to issue the directions, failed
to give proper consideration to human rights relevant to the decision. As a result, the decisions
and the directions were unlawful. [See paras. 22 – 29, 135-139]
The Director-General submitted that he was able to make the direction because he had the power
under an implied term of the employment agreements for QAS employees. He had to prove that
the direction was made in that way. He failed to do so and, as a result, the direction had no
force.[para. 469]
Decision and summary are also available at this link.
Emergency Powers Analysis
Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42:
Four applications before the Court challenged the federal exercise of emergency powers (Order
in Council P.C. 2022-106, the Proclamation Declaring a Public Order Emergency, SOR/2022-20
(the Proclamation) issued pursuant to s 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp)
on February 14, 2022 (the “Emergencies Act”). [para. 3]
Mr. Justice Mosley concluded that the decision to declare a public order emergency did not satisfy
the requirements of the federal Emergencies Act and that certain of the temporary measures
adopted to deal with the protests infringed provisions of the Canadian Charter of Rights and
Freedoms and were not justified under section 1 of the Charter [para. 7]
At para. 372 Justice Mosley “concluded that the decision to issue the Proclamation does not bear
the hallmarks of reasonableness – justification, transparency and intelligibility – and was not
justified in relation to the relevant factual and legal constraints that were required to be taken into
consideration.”
Although it relates to federal emergency powers, this is a useful decision as it is one of the few
cases in Canadian jurisprudence where emergency powers are analyzed by the courts.
Supreme Court of Canada
The Supreme Court of Canada has decided not to hear the appeal of the challenge to Manitoba’s
lockdown restrictions. The application for leave to appeal from the judgment of the Court of
Appeal of Manitoba, 2023 MBCA 56, dated June 19, 2023, was dismissed. Gateway Bible Baptist
Church, et al. v. His Majesty the King in Right of the Province of Manitoba, et al., 2024 CanLII
20245 (SCC).

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 Citadel law corporation
1400-1125 Howe Street, Vancouver, BC V6Z 2K8
_____________________________________________________________________________________

Thank you for your assistance.

Yours very truly,

CITADEL LAW CORPORATION

Per:

POLINA H. FURTULA

Cc: Chantelle Rajotte, Emily C. Lapper, Trevor Bant – Via Email