Ingram v Alberta (Chief Medical Officer of Health), 2022 ABQB 164

Court of Queen’s Bench of Alberta Citation: Ingram v Alberta (Chief Medical Officer of Health), 2022 ABQB 164 Date: Docket: 2001 14300 Registry: Calgary Between: Rebecca Marie Ingram, Heights Baptist Church, Northside Baptist Church, Erin Blacklaws and Torry Tanner Applicants - and - Her Majesty the Queen in Right of the Province of Alberta and The Chief Medical Officer of Health Respondents _______________________________________________________ Decision of the Honourable Madam Justice B.E. Romaine _______________________________________________________ I.

Introduction [ 1 ] Early in this hearing, three issues arose that required resolution before the hearing could continue. I gave brief oral reasons on these issues, and these are my written reasons. II. Issues

a) Do CMOH Orders 42-2021 and 43-2021 fall within the scope of this hearing?

b) Are the Applicants entitled to amend the pleadings during the hearing to include CMOH Orders 42-2021 and 43-2021 pursuant to Rule 3.65(4) of the Alberta Rules of Court ?

c) Are the Applicants entitled to an order varying the Oral Hearing Order to include CMOH Order 42-2021 and 43-2021 pursuant to Rule 9.15(4) and 13.5 of the Alberta Rules of Court ? III. Analysis

a) Do CMOH Orders 42-2021 and 43-2021 fall within the scope of this hearing? 1. Relevant History [ 2 ] On April 30, 2021, Justice Kirker, as the justice appointed to manage this litigation to the hearing stage, issued a decision striking some paragraphs of the Applicants' proposed Amended Originating Application, and allowing others: Ingram v Alberta (Chief Medical Officer of Health) , 2021 ABQB 343 .

Justice Kirker allowed a new plea for relief in the pleadings in the form of a request for a declaration that the CMOH Orders issued since March 20, 2020 [when this litigation commenced] were ultra vires and of no force and effect. [ 3 ] Justice Kirker requested that the formal order arising from her decision be accompanied by a black-line of the proposed Amended Originating Application showing the changes. [ 4 ] The Order, filed June 22, 2021, included such a black-line, including the following two provisions relating to the relief sought that are relevant to this issue: j.1 A Declaration that all provisions of the CMOH Orders currently in force are ultra vires the purpose of the Public Health Act. . . . n.1 A Declaration that the CMOH Orders issued since March 2020 regarding business restrictions imposed due to COVID-19 are ultra vires

section 29 of the Public Health Act and of no force and effect. (emphasis added) [ 5 ] The Order was accompanied by a document entitled "Supplementary Particulars" dated June 9, 2021, which had been filed by the Applicants after the Respondents requested further particulars of the constitutional challenge.

The Supplementary Particulars indicate that: [t]he Applicants believe this to be a complete listing of their Charter claims but reserve the right to add, delete or modify any claims prior to the final hearing of this matter in accordance with the Procedural Order and will make every reasonable attempt to inform the Respondents of such amendments . (emphasis added).

The Procedural Order requires filing of materials in accordance with the Court’s e- filing procedures. [ 6 ] However, the Plaintiffs did not actually file their Amended Originating Application until February 8, 2022, two days before the hearing commenced, more than seven months after the April order. The Supplementary Particulars attached to the filed Application are still dated June 9, 2021, and do not list any CMOH restrictions issued after that date.

However, the Amended Originating Application includes provisions j.1 and n.1 from the June 22, 2021 Order and the Applicants submit that this is sufficient to encompass CMOH Orders 42-2021 and 43-2021 issued on September 16, 2021 (the “September Orders”). [ 7 ] On August 6, 2021, Justice Kirker granted an "Oral Hearing Order" in anticipation of the hearing then set for September 20, 2021. [ 8 ] Paragraph 1(

a) of that Order lists the type and nature of the application for relief to be heard at the hearing, including the following: i. A Declaration that all provisions of Alberta's Chief Medical Officer of Health (the "CMOH") Orders as described in

Schedule “A” are of no force and effect . . .; ii. A Declaration that the CMOH Orders as described in

Schedule “A” are unlawful and are of no force and effect . . .; iii. A Declaration that all provisions of the CMOH Orders as described in

Schedule “A” are ultra vires the purpose of the Public Health Act; . . . vi. A Declaration that the CMOH Orders issued since March 2020 regarding business restrictions imposed due to COVID-19 are ultra vires

section 29 of the Public Health Act and of no force or effect. (emphasis added)

Schedule “A” to the Order is the Supplementary Particulars dated June 9, 2021. [ 9 ] While subsection vi. does not refer to the CMOH Orders described in

Schedule “A”,

section 1(

b) of the Order provides that the specific issues for which oral evidence is necessary at the hearing are summarized in the Supplementary Particulars, which were attached as

Schedule "A". [ 10 ] The attached

Schedule A was not updated from June 9, 2021.

[ 11 ] The September hearing was adjourned and rescheduled for February 10, 2022. [ 12 ] In accordance with filing deadlines, the Respondents filed their Brief of Law for the February hearing on September 14, 2021. In

Section II, para 6 of the brief, the Respondents state that the Applicants have challenged the constitutionality of certain specified CMOH Orders. The list does not of course include the September Orders issued on September 16, 2021 and September 18, 2021. The brief also notes that the Plaintiffs have not yet served them with a filed copy of the Amended Originating Application, as had been anticipated from Justice Kirker’s April 30, 2021 decision.

They also note in footnotes 15 and 16 of their brief that: [t]he Applicants, despite having provided particulars and further supplementary particulars, have failed to identify which orders or portions thereof compose the [category of] Business Closure Restrictions, notwithstanding that s. 24(3) of the Judicature Act , RSA 2000, c J-2 . . . requires parties challenging the constitutionality to provide reasonable particulars of the constitutional argument.

Reasonable particulars surely include, at a minimum, the provisions being challenged; however, based on a review of all of the Chief Medical Officer of Health Orders, Alberta believes these portions are the most likely portions that the Applicants refer to.

The Applicants, despite having provided particulars and further supplementary particulars, have failed to identify which orders or portions thereof compose the Primary and Secondary School Closure Restrictions, notwithstanding that s. 24(3) of the Judicature Act , ibid requires parties challenging the constitutionality to provide reasonable particulars of the constitutional arguments.

Reasonable particulars surely include, at a minimum, the provisions being challenged; however, based on a review of all of the Chief Medical Officer of Alberta Orders, Alberta believes these portions are the most likely portions that the Applicants refer to. [ 13 ] Counsel for Ms. Ingram's Pre-trial Reply Factum dated September 21, 2021 referred to the September Orders and commented at paragraphs 10 and 11 of the brief that: . . . Both of these orders introduce and detail the Alberta Restrictions Exemption Program, which essentially is a coercive measure to indirectly impose vaccine mandates.

It is submitted that this coercive tactic is contrary to the World Medical Association Declaration of Geneva . . . It is plainly obvious that as a result of the lack of planning and inaction of the Respondents, that these coercive tactics are the only option that the Respondents have left themselves. It further supports that the COVID-19 public health care mismanagement crisis has been self inflicted by the Respondents. [ 14 ] On October 5, 2021, counsel for Ms.

Ingram sent a letter addressed to me as the hearing Justice which was redirected with the consent of the parties to the new case management Justice before I received it. The letter states as follows: . . . given that new CMOH Orders have been issued. It is our position that they are also covered by the Originating Application. We therefore kindly request leave of this Honourable Court to file a new expert report in direct rebuttal to these new public health measures, the Restrictions Exemption Program, which constitute a prima facie vaccination passport.

We further seek leave of this Honourable Court to file a further supplemental affidavit for the Applicant Rebecca Marie Ingram. [ 15 ] The letter was copied to the Respondents. Although it is not entirely clear what happened next, the Respondents did not receive anything further from either the case management Justice or counsel for Ms. Ingram. [ 16 ] On February 16, 2022, I decided that the September Orders do not fall within the scope of the hearing, with reasons to follow.

During noon the next day, the Applicants brought an application for leave to amend their Amended Originating Application to include these orders. 2. Analysis [ 17 ] Counsel for Ms. Ingram submits that the reference in the brief to the September Orders was effective notice to the Respondents that the Applicants were going to challenge them. [ 18 ] However, that reference was followed by counsel’s letter of October 5, 2021, which clearly indicates that counsel for Ms. Ingram considered it necessary to obtain leave of the Court to file a new expert report and a new affidavit.

This was indeed the right procedure, as none of the evidence and argument filed to that date made reference to the September Orders, other than the brief mention in Ms. Ingram’s September 21, 2021 brief. The Oral Hearing Order requires leave of the Court before any new affidavits or records can be filed. It appears that the application was abandoned. It is thus clear that the Respondents have not been given the opportunity to file affidavits or documents in response to the proposed challenge to the September Orders. [ 19 ] Counsel for Ms.

Ingram says that when he did not receive a response from the case management Justice, he decided that he didn't need the relief he was seeking in the letter because he took the position that the September Orders were covered by the Amended Originating Application, and that he did not need either a new expert report or an additional affidavit. [ 20 ] This is difficult to accept, since the letter on its face indicates that rebuttal to these new public health measures required the filing of additional evidence. [ 21 ] Counsel for Ms.

Ingram also suggests that it was up to the Respondents to take the next step and ask for particulars. This does not make sense: there was at that point nothing in the pleadings as they then existed or in the Supplementary Particulars that would require the Respondents to take further steps. There was no reason why they would not consider the Applicants' application for leave abandoned. The Amended Originating Application filed a few days before this hearing commenced did not include a direct reference to the September Orders, even in the attached

Schedule “A”. [ 22 ] It is also noteworthy that all parties had filed their evidence in the matter by the end of July, 2021, and to add the September Orders would likely require an adjournment of the hearing to give the Defendants the opportunity to address the new challenges.

[23] The Applicants submit that, until the commencement of the hearing, they were unaware that the Respondents were of theview that the September Orders did not fall within the scope of the hearing. However, it was the responsibility of the Applicants to giveproper notice of their intention to add the September Orders, despite their abandonment of the October application. The fact is thatneither party has addressed the September Orders through evidence or affidavits other than a mention in the Applicant’s September brief. [24]

Section 24(

b) of the Judicature Act, RSA 2000, c J-2 entitles the Respondents to notice of what is being constitutionallychallenged and reasonable particulars of the proposed argument. [25] Given the context of the orders and decisions, and the fact that all materials other than the pre-hearing briefs were exchangedbefore July 30, 2021, it could not be reasonably expected that a challenge to CMOH Orders made after the exchange of evidence wouldbe included in the hearing without adequate evidence addressing the constitutionality of the orders. [26] In

summary, the Applicants failed to give timely and appropriate notice of their intention to bring the September Orderswithin the scope of the hearing, and their selective reliance on portions of the past orders to justify their position is incorrect andinsufficient. The September Orders do not fall within the scope of the hearing.

b) Are the Applicants entitled to amend the pleadings during the hearing to include the September Orders? [27] Rule 3.65(4) of the Alberta Rules of Court provides that the Court may give permission to amend a pleading after pleadingshave closed. [28] It is clear that a court should generally allow a party to amend its pleadings unless the amendment would cause prejudice notcompensable in costs, advances a hopeless position, or is the product of bad faith: Pace v Economical Mutual Insurance, 2021 ABCA 1at paras 53-54. [29] The Respondents submit that the proposed amendment would cause significant prejudice that could not be compensated by acosts award.

They submit that adding a new issue dealing with a new timeline, including the Restrictions Exemption Programimplemented in the fourth wave, would completely derail the hearing. [30] As noted by the Respondents, Charter claims cannot be resolved without a proper factual foundation: Mackay v Manitoba (SCC), [1989] 2 SCR 357. [31] As noted by the Supreme Court in Ernst v Alberta Energy Regulator, 2017 SCC 1 at paras 108-109, “the public interestrequires that the fullest and best evidence possible be put before the Court when it is asked to decide the constitutionality of a law:” While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s.1, this is apower not to be exercised except after the fullest opportunity has been accorded to the government to support its validity.

To strike downby default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the electedrepresentatives who enacted it but to the people: Eaton v Brandt (County) Board of Education, (SCC), [1997] 1S.C.R. 241 at para 48 (emphasis added) [32] During oral argument, counsel for Ms. Ingram suggested that the Applicants would not object to the Chief Medical Officer ofHealth attempting to address their challenge to the September Orders during her appearance as a witness. This is clearly insufficient.

TheRespondents should not be compelled to support the validity of the September Orders on the fly. [33] The Applicants submit that allowing the amendments would effectively move this litigation “back to square one.” They wouldbe entitled to seek particulars of the challenge. The Respondents are not required to infer or assume the arguments of the Applicants:Ernst at pars 99-100, 102, 112.

The Respondents would need to find and submit expert evidence dealing with the importance andeffectiveness of vaccines in combatting the pandemic; they would need to lead evidence explaining the factual context underlying thefourth wave, and why further restrictions were justified based on the scientific and factual circumstances at that time, including imposinga program restricting access to certain places or activities based on vaccination status. [34] The Applicants’ suggestion that the Respondents should have all of this evidence “at its fingertips” is unreasonable andunrealistic. [35] It must be noted that the Applicants have not established a factual foundation that would support their allegations that theirCharter rights have been infringed by the Restriction Exemption Program beyond a short reference in Ms.

Ingram’s pre-hearing brief.While they suggest that they do not require anything further, they do not in their proposed amendment identify what part of eitherSeptember Order is being attacked nor do they provide any particulars as to their proposed amendment: Gramaglia v Alberta (Ministerof Government Services), 2007 ABCA 93 at para 52, citing section 24(3) of the Judicature Act.

While the amount of evidence requiredto justify an amendment is low, failure to tender any evidentiary foundations to support the proposed amendment is a reason to reject theapplication: Altilla Dogan Construction and Installation Co. v AMEC Americas Ltd., 2014 ABCA 74 at paras 26-27. [36] The Applicants appear to recognize that if the proposed amendment is allowed, the hearing would have to be adjourned toallow the Respondents to respond to the challenge. They suggest however, that such an adjournment need not be lengthy.

Given the timeit took for the parties to prepare their evidence for the challenge of the CMOH orders and directions now before the Court, this isunrealistic. [37] When a court assesses the merits of an amendment application, it must also consider the public interest. [38] Unresolved disputes are not a social benefit. The public interest is promoted by protocols that resolve litigation as quickly asreasonably possible without the expenditure of more public and private resources than is reasonably necessary.

This interest must berecognized and assessed: AARC Society v Canadian Broadcasting Corp, 2019 ABCA 125 at para 59.

[ 39 ] This application to amend is very late, brought during the course of the hearing, and implicitly requiring an adjournment. As noted in Pace v Economical Mutual Insurance , 2021 ABCA 1 at paras 57-59 , in assessing very late amendments, courts “must be mindful of the need to be careful stewards of scarce judicial resources.” [ 40 ] The Applicants submit that they would be prejudiced by a refusal of leave, in that they would have to file a new action challenging the constitutionality of the September Orders.

However, a decision on the many impugned CMOH directions and orders that are presently before the Court may provide guidance on the constitutionality of the September Orders, and may help to resolve the issue without further litigation. [ 41 ] In

summary, I find that there would be significant prejudice to the Respondents in allowing the amendments at this stage of the hearing that could not adequately be addressed by a costs award, and the application for leave to amend pursuant to Rule 3.65(4) is therefore dismissed.

c) Are the Applicants entitled to an order varying the Oral Hearing Order to include the September Orders pursuant to Rules 9.15(4) and 13.5 of the Alberta Rules of Court ? [ 42 ] Pursuant to Rule 9.15(4) of the Alberta Rules of Court , the Court may vary an interlocutory order because of information that arose or was discovered after the order was made or on other ground that the Court considers just. [ 43 ] The Applicants submit that I should vary the decision I made on February 16, 2022, that the September Orders did not fall within the scope of the hearing pursuant to this Rule.

However, they have not adduced any new information or made any new submissions that would justify a variance of that order. IV. Conclusion [ 44 ] The September Orders do not fall within the scope of the hearing, and the application to amend the pleadings or vary that decision is dismissed. [ 45 ] The Applicants submitted that the Respondents were responsible for previous adjournments, and that they are attempting to take procedural advantage in this matter.

The record of proceedings before the case management Justice and in respect of the September adjournment do not support such a characterization of the adjournments, nor do I find that the Respondents are attempting to take procedural advantage, for the reasons set out in this decision. These issues are not just procedural issues: they are issues of hearing fairness. [ 46 ] If the parties are not able to agree on costs, they may make submissions on that issue at the same time any submissions on the costs of this hearing are heard. Dated at the City of Calgary, Alberta this 24th day of February, 2022. B.E.

Romaine J.C.Q.B.A. Appearances: Jeffrey R. W. Rath & Kathryn Newton for the Applicant, Rebecca Marie Ingram Leighton Grey, QC & Tamer Obeidat for the Applicants, Heights Baptist Church, Northside Baptist Church, Erin Blacklaws and Tony Tanner Nicholas Parker, Nicholas Trofimuk, Brooklyn LeClair & David Kamal for the Respondents