Lawyer challenging B.C. COVID-19 orders says class action could result in 3 million claims

The lawyer for a group seeking to certify a class action lawsuit against B.C.'s provincial health officer for damages allegedly caused by unjustified COVID-19-related orders says the proceedings could result in as many as three million claims.

Polina Furtula told B.C. Supreme Court Justice David Crerar Tuesday the Canadian Society for the Advancement of Science in Public Policy would seek both a lump sum to punish the province for breaching charter rights and specific amounts tailored to damages alleged by individuals.

"Potentially, there would be three million individualized trials?" the judge asked.

"Potentially," Furtula responded. "But of course, that doesn't mean there would have to be actual trials. There's ways that this can be achieved that are practical."

'Punishing a whole group'

The exchange came on the second day of a week-long proceeding in B.C. Supreme Court in Vancouver to determine the future of the proposed class action lawsuit.

The CSASPP's website says the group is a "non-profit, non-partisan, secular, crowd-funded, and volunteer-driven organization that was created in response to popular community demand for a direct action initiative to counter B.C.'s COVID-19 related measures."

According to their notice of claim, the group believes Dr. Bonnie Henry and the province "invoked extraordinary executive powers predicated on unsubstantiated scientific and legal grounds with catastrophic consequences for British Columbians."

"The [Public Health Act] orders do not discriminate between the sick and the healthy, collectively punishing a whole group," the claim reads.

"The reality is that either all or some of the ministerial orders were not necessary to 'prevent, respond or alleviate' the effects of COVID-19 to the population of British Columbia."

The proposed claim says the measures violated a variety of rights guaranteed to Canadians under the Charter of Rights and Freedoms.

The CSASPP is seeking certification of a class action lawsuit on behalf of all adults residing or doing business in the province who have suffered injury or damages as a result of public health orders issued after March 17, 2020.

'Angry, depressed, lonely and isolated'

The hearing was well attended by supporters of the CSASPP — which put a call on its website for people to "join us at this historic public hearing."

If certified, Furtula said the suit would have three subclasses: 328,000 people who saw medical procedures delayed or cancelled, 376,752 people who were not double-vaccinated and did not get exemptions and 37,000 people who weren't vaccinated for religious reasons.

The lawyer read portions from a number of affidavits that spoke to the wide range of complaints from people hoping to be part of the lawsuit.

In one, a single mother who was diagnosed with lung cancer during the pandemic complained that she was unable to get a second dose of vaccine in the 21-day period recommended by the manufacturer.

In another, the mother of a child whose classmate tested positive for COVID-19 was upset that her family was told to quarantine despite the fact they all tested negative for the virus.

And in another, the "angry, depressed, lonely and isolated" head of a technology company said he was shunned because he was unvaccinated and unmasked — unable to participate in group activities or meet potential romantic partners.

'There has to be a coherent plan'

Crerar doesn't have to decide the merits of the case, but he has to determine if the lawsuit meets the requirements needed for a class action — which include common issues, an identifiable class of people and an appropriate person to represent the class.

The judge also has to decide whether a class action lawsuit is the proper way to resolve the dispute.

In his exchange with Furtula, he pointed out how varied the possible claims are — ranging from people who were upset they couldn't get vaccinated fast enough to people who didn't want to get vaccinated at all.

He asked the lawyer for other examples of class action lawsuits which have been brought about based on alleged charter breaches or in relation to COVID restrictions.

Furtula pointed to a lawsuit in the United States where members of the military are challenging mandatory vaccination.

While helpful, the judge said that proceeding was an example of a single-issue complaint where everyone is "rowing in the same direction."

"I get your point, that you're saying these orders are no good, they're imprecise, they're not tailored, they're irrational, they're not consistent," he told Fortula.

"But in terms of implementing how the trial is going to unfold, and how if you're successful at trial, damages are going to be awarded, et cetera, there has to be a coherent plan for the logistics of that and addressing potential internal contradictions."

The Crown will make its case later this week.

In a response filed with the court, the government denies the claim, saying the health orders were made in accordance with "national and international surveillance data" as well as "local, national and international epidemiological data."

"The overriding concern is to ensure that [Public Health Act] orders and other public health guidance protect the most vulnerable members of the society while minimizing social disruption," the response says.

The province says the CSASPP has failed to meet the requirements to certify a class action lawsuit on all fronts. 

And the Crown also says that any breaches of the Charter of Rights and Freedoms are allowed under Section 1 of the Charter, which allows governments to put limits on rights and freedoms so long as those limits can be shown to be reasonable in a free and democratic society.