B.C.'s back-to-school plan 'endangers' students, teachers and public, lawsuit alleges

A lawsuit has been filed in B.C. Supreme Court in a bid to stop the provincial government from reopening kindergarten to Grade 12 classes unless tougher COVID-19 safety measures are imposed.

The action lists alleged "failures" in the back-to-school plan, including the failure to impose mandatory face masks, implement physical distancing, reduce class sizes and provide all students with the option of virtual learning.

The suit labels the current plan — to allow the full–time return of nearly all of B.C.'s 591,000 elementary and secondary school students on Sept. 10 — "nonsensical," "unconscionable" and "not only endangers the lives of students and teachers, but also that of the broader community."

The application seeks an immediate injunction to restrain the B.C. ministries of health and education from reopening schools, and calls for a judicial review of the government's plan.

'We've pleaded … and the government refuses to listen'

It's been filed by two Vancouver-area fathers, Bernard Trest and Gary Shuster, who both have immunocompromised family members.

"We've waited. We've pleaded. There have been parents who have started a petition. And the government refuses to listen," says Trest, 43. "It makes no logical sense."

Trest says he and his 10-year-old son Max have asthma triggered by respiratory infections.

Max was set to enter a class for gifted children at Crescent Park Elementary in South Surrey, but won't attend under the current plan.

"I'm kind of sad because I just got into this brand new program and I was excited," says Max. "And now I may be basically giving up my spot."

'I don't want to die'

Gary Shuster has a genetic disorder that affects his muscles, which is made worse by fever and viral infections.

His wife has suspected breast cancer.

Shuster says his 11- and 13-year-old daughters — who attend different schools — could bring home COVID-19 under the current plan.

"The instinctive reason to get involved in this lawsuit is I don't want to die," says Shuster, 53.

"I don't want to put my wife at risk and I don't want my kids to … walk around the rest of their lives thinking, 'I injured my parent.'"

The ministries of health and education have yet to file a legal response.

'Great confidence' in the plan: Dr. Bonnie Henry

The lawsuit hopes to overturn — or modify — the provincial government's back-to-school plan, unveiled July 29.

Education Minister Rob Fleming announced then that most B.C. students from kindergarten to Grade 12 would return to class full time in September.

Pupils will be organized into "learning groups" to reduce the number of people they come into contact with, cutting the risk of transmitting the novel coronavirus.

Elementary and middle school learning groups will have a maximum of 60 students, while those in secondary school will have up to 120. 

Masks will be required for all staff and students in middle and secondary school when they are in high traffic areas where they cannot physically distance from others, like hallways and on the school bus. They're optional in the classroom for those students.

Masks will be provided when physical distancing can't be maintained — part of the government's pledge to spend $45.6 million on safety measures, including an increase in hand-hygiene stations and cleaning of high-contact surfaces. 

Provincial Health Officer Dr. Bonny Henry said she has "great confidence" in the plan, stating that closing schools can have a "lifelong impact" on some children and that families have faced challenges with children at home.

But the B.C. Teachers Federation is demanding changes, such as reduced classroom density, stricter mask rules and the addition of a "remote learning" option — something that was offered until the end of the last school year.

Distributed learning — a method of keeping in touch with teachers online — is available to students, but has long wait lists.

'Students and teachers are guinea pigs'

The lawsuit claims the province's back-to-school plan flies in the face of current public health orders, the recent spike in B.C. cases, and mounting evidence children can be spreaders of COVID-19 while having mild to no symptoms.

It notes mass gatherings in the province are limited to 50 people, individuals are told to stay two metres apart, and pubs, bars and nightclubs must limit six people to a table.

By comparison, the action alleges the back-to-school plan "demonstrates a clear double standard", with "dangerous inconsistencies"— labelling the cohorts of 60 elementary and middle school students and 120 secondary students "nonsensical".

"The [ministries] are conducting a potentially deadly science experiment in which students and teachers are guinea pigs," alleges the injunction application.

"I think it's irresponsible to run this large of an uncontrolled experiment and expose children to this kind of risk," says Shuster. "Why are we doing this? It's nuts."

Trest says it's not about money. No damages are being sought in the action.

"We just want our children to be safe. We want them to be able to either attend [classes] virtually or go to school and feel safe. We want grandparents to be able to see their grandkids when they come home," he says.

Trest has some advice for the B.C. government: "Follow the science and follow the guidelines."

The legal challenge has been filed in Chilliwack court, in an attempt to get around a backlog of cases caused by COVID-19 safety restrictions.

An exact hearing date has yet to be set.