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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

Reply Submissions of the Plaintiff

Re Hoogerbrug Decision

Canadian Society for the Advancement
of Science in Public Policy
Dr. Bonnie Henry in her capacity as
Polina H. Furtula
Westpoint Law Group
2200 – 1177 W. Hastings Street
Vancouver, BC V6E 2K3
His Majesty the King in right of the
Province of British Columbia
Provincial Health Officer for the
Province of British Columbia
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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Hoogerbrug decision is under appeal

1. The decision in Hoogerbrug v British Columbia, 2024 BCSC 794 (“Hoogerbrug”) is

now under appeal (as of June 6, 2024).

Hoogerbrug s.1 Charter findings cannot be applied to facts in this action

2. The defendants submission that Justice Coval’s findings regarding s.1 of the Charter
are fatal to the plaintiff’s s.7 and all other Charter challenges is absurd.

3. Whether a particular PHO order balances the rights to attend public establishments
or work as a healthcare worker in different settings must be (and were) justified
differently. Indeed, Justice Coval found that the PHO orders with respect to remote
workers were unreasonable, but found those same orders to be reasonable
regarding workers with direct contact to patients.

4. It was precisely the reconsideration process or lack thereof, that Justice Coval found
was unjustified as per para. 225 of his decision:

[225] In sum, for the reasons expressed in this section, I find the Tatlock Petitioners
have demonstrated that there remains a lack of justification for not including a
reconsideration process for remote and purely administrative workers, as a less
drastic means of achieving the PHO’s objectives, particularly given the heightened
burden of justification because what is at stake is the loss of a person’s job as a
healthcare professional.

5. If the defendants were correct in their submissions, Justice Coval would have
applied his findings on s.1 of the Charter to all petitioners and all of their claims
would have failed.

6. The plaintiff further reiterates its arguments with respect to the different legal
principles and evidentiary records relating to actions and petitions.
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7. The plaintiff is also challenging the constitutionality of s.92 of the Public Health Act,
which requires full proper notice and a full evidentiary record.1

8. Hoogerbrug cannot be used to shield the actions of an administrative decision-

maker who is already insulated from democratic accountability. Indeed, Justice
Coval found the “one-size-fits-all” approach was unreasonable, and the defendants’
liability for damages should be examined on a full evidentiary record.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Date: June 14, 2024

_____________________________
Polina H. Furtula,
Counsel for the plaintiff

1
Ernst.v¡.Alberta.Energy.Regulator, 2017 SCC 1 (CanLII), [2017] 1 SCR 3 at para. 71 and 99 (Joint BOA, Tab 76,
pg. 37-38, 45