A Calgary judge has certified a class action lawsuit launched by Mirror Whistle Stop Cafe owner Chris Scott.
The lawsuit seeks compensation for the losses businesses suffered because of pandemic-related health restrictions such as bans on indoor dining.
Scott is named as the representative plaintiff in the 26-page decision from Justice Colin Feasby that came out on Wednesday.
The lawsuit hinges on another judge's decision in July 2023 that found the Alberta government violated the Public Health Act because Cabinet or a Cabinet Committee approved Chief Medical Officer of Health (CMOH) orders. It should have been the medical officer of health making the orders not politicians, ruled Justice Barbara Romaine.
The fallout saw numerous pandemic-related charges tossed out of court, including some laid against Scott, of violating health orders in 2021 by keeping his restaurant open and allowing in-person dining at a time when it was prohibited.
By issuing CMOH orders without legal authority, "Cabinet denied affected individuals 'enjoyment of property' without 'due process of law' contrary to the Bill of Rights," claims the lawsuit filed by lawyer Jeffrey Rath.
The Alberta government argues the CMOH decisions were policy decisions and immune from civil liability.
As well, the plaintiffs must establish that the government acted in bad faith for any class action lawsuit to be certified.
In his decision, Feasby says that the "Plaintiffs have pleaded that Alberta was reckless, that it knew or ought to have known the CMOH orders were ultra vires (beyond the government's powers or exceeded its legal authority) and that it knew the CMOH orders would harm the proposed class members because the CMOH orders directed businesses to shut down or curtail operations and because Alberta put in 'insufficient' business support programs.
"I am satisfied that the Proposed Representative Plaintiffs have sufficiently pleaded misfeasance (wrongful execution of legal authority) in public office."
In his decision, Feasby points out that the question he must decide is procedural, whether the preconditions to certification have been met. His role was not to decide the merits of the case.
Feasby was also tasked with determining whether Scott was a representative plaintiff. While he may have been "atypical" that does not disqualify him from representing others, he ruled.
The judge says there is a risk that the court battle may be used to "re-litigate (Scott's) personal conflicts with Alberta during the COVID-19 pandemic and to vindicate his ideological views on COVID-19 and vaccines."
Feasby says his concern that Scott may be inclined to use the litigation to "pursue irrelevant ideological objectives" can be managed by limiting the scope of the issues to be argued in court.
Among the issues to be addressed are whether the Alberta government violated the Bill of Rights, whether issuing the CMOH orders was "deliberate misconduct," whether there was actual intention to harm class members and whether there was 'reckless indifference or wilful blindness" to Cabinet's lack of legal authority to issue the orders and to the harm that could have been foreseen.
In certifying the class action lawsuit, the judge defines the class as "all individuals who owned, in whole or in part, a business or businesses in Alberta that was subject to full or partial closure, or operational restrictions, mandated by the CMOH Orders between March 17, 2020, and the date of certification."
"Owned" does not include ownership as a shareholder in a corporation or as a member of a cooperative.
