Judge approves class-action lawsuit for Alberta business owners hurt by pandemic restrictions

A Calgary judge has certified a class action lawsuit for Alberta business owners seeking compensation for losses suffered due to pandemic-related public health restrictions.

On Wednesday, Justice Colin Feasby released his 26-page decision certifying the proposed class action, with Whistle Stop Cafe owner Christopher Scott named as representative plaintiff. 

The lawsuit, filed by lawyer Jeffrey Rath, followed Justice Barbara Romaine's July 2023 "Ingram" decision. She found that health orders were made outside the scope of the province's Public Health Act.

The act gives the chief medical officer of health (CMOH) the power to make public health orders. But during the pandemic, instead of Dr. Deena Hinshaw making the orders, politicians did, acting without legal authority. 

• Role of politicians in pandemic restriction decision-making breached Alberta Public Health Act: Calgary judge

Rath's lawsuit alleges that because the orders were found to be unlawful, Alberta is liable for the class members' losses caused by the closures and restrictions imposed on businesses. 

"This is a huge day for Alberta businesses that were illegally harmed by [premier] Jason Kenny and Deena Hinshaw," said Rath in a written statement.

"The court found that the action can proceed against the Government of Alberta on a number of grounds, including misfeasance in public office, allowing the plaintiffs to seek punitive damages against the Alberta government for wrongdoing."

• 'You're free to go': Alberta judge acquits restaurant owner on trial for breaking law during pandemic

During the pandemic, representative plaintiff Chris Scott faced several charges, accused of breaching the Public Health Act when his restaurant, the Whistle Stop Cafe in Mirror, Alta., remained open despite restrictions banning large gatherings and in-person dining in January 2021.

Scott's charges were stayed after Romaine's decision was released. 

Ideological objectives 'irrelevant'

Feasby described Scott as "atypical of the proposed class because for much of the time in question, he refused to abide by the CMOH orders."

But Feasby found that did not disqualify Scott from acting as representative plaintiff because even though he disobeyed the CMOH orders and profited from his disobedience, his business was forcibly closed for a period.

The judge did raise concerns that Scott "may be inclined to use the litigation to pursue irrelevant ideological objectives, advance theories that COVID-19 was not a public health emergency, and re-litigate his personal battles with Alberta and Alberta Health Services." 

But, he said, those concerns can be managed by limiting the scope of the issues that the lawsuit can proceed on. 

Did Alberta act in bad faith?

The lawsuit can proceed on six common issues.

Those issues include whether Alberta acted in bad faith in making the CMOH orders and whether the Alberta Bill of Rights was breached by the unlawful orders. 

Feasby defined 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."

The class does not include ownership as a shareholder in a corporation or as a member of a co-operative.

In his decision, Feasby noted he was tasked with deciding if the lawsuit qualified for certification, not with ruling on the merits of the case.