Hart v. Henry, 2021 BCPC 249

Citation: Hart v. Henry 2021 BCPC 249 Date: 20210929 File No: C-87478 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: GEORGE HART doing business as WHITE HART PUB CLAIMANT AND: DR. BONNIE HENRY DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Appearing on his own behalf: G. Hart Counsel for the Defendant: E. Lapper Place of Hearing: Surrey , B.C. Date of Hearing: September 22, 2021

Date of Judgment: September 29, 2021 [ 1 ] This is an Application by the Defendant to strike the Action pursuant to Rule 16 (6) of the Small Claims Rules, BC Reg 267/2018. The Application is opposed.

BACKGROUND [ 2 ] The Claimant operates a pub located in Surrey, British Columbia. [ 3 ] The Defendant is the senior public health official for the Province of British Columbia (Public Health Officer) appointed under the Public Health Act , SBC 2008, c. 28 , in which one of her duties is to respond to public health emergencies, which includes the transmission of the novel coronavirus SARS-CoV-2 that causes what is called COVID-19. [ 4 ] On March 17, 2020, the Public Health Officer issued a notice of public health emergency in the Province of British Columbia.

Since such time (and continuing to do so), the Public Health Officer has issued and made orders under the Public Health Act (“ PHA ”) in response to the COVID-19 public health emergencies and the dynamic changing circumstances of the pandemic in the Province of British Columbia. Those Public Health Orders (“PHOs”) include PHA Orders, which impact the food and liquor serving establishments in the Province. [ 5 ] On March 20, 2020, the Public Health Officer issued a province wide PHA Order prohibiting indoor dining at both food and liquor serving establishments.

That was varied on May 15, 2020, wherein the Public Health Officer issued a PHA Order permitting indoor dining, subject, however, to restrictions such that all patrons are to sit at least two metres apart. Since such time, that PHA Order has been amended and varied to address onsite dining at establishments. [ 6 ] The Defendant, in her capacity as the Public Health Officer, pleads that data is continuously reviewed, including “scientific data, changing epidemiological circumstances” within the Province and other jurisdictions, both nationally and globally.

The Defendant pleads that at all times actions and steps were taken in good faith. [ 7 ] In response to the dynamic circumstances, the Public Health Officer issued a PHA PHO in the Province on March 31, 2021 (“ PHO March 2021”) as it pertained to both food and liquor serving establishments, wherein it prohibited indoor dining at both food and liquor businesses, which included restaurants, coffee shops, cafes, cafeterias, pubs, bars, lounges, tasting rooms, and private clubs.

Take out, delivery, and outdoor dining were permitted. [ 8 ] The Claimant alleges that the Public Health Order (PHO) “has no science to it to indicate dine-in is a factor in covid-19” for indoor dining and pleads that his business is losing money “weekly” due to the PHO, when other entities including dining in BC Ferries is permitted. The Claimant pleads that they “spent thousands preparing, with plexi-glass around each table but other business [sic] have spent nothing but can trade indoors.” APPLICATION TO DISMISS [ 9 ] The Defendant has brought an Application pursuant to Rule 16 (6) (

o) to dismiss the Claim, advancing that there is no triable issue, as it is barred pursuant to

Section 92 of the Public Health Act .

In the alternative, the Defendant advances that there is no triable issue, as the pleadings do not set out a cause of action in tort and is not within the jurisdiction of this Honourable Court. [ 10 ] The Defendant sets out that the March 2021 PHO clearly articulates the reasons for it being put in place, including to respond to the increasing number of COVID-19 infections within the province; its impacts upon the individuals, the community, and the province- wide health care system; that association and gathering of persons in close contact, indoors, consuming alcohol elevate the transmission of COVID-19, and the increased risk of transmissibility from variants; and that the indoor dining PHO of March 2021 was made in good faith pursuant to Sections 30 - 32 and 39 (3) of the Public Health Act . [ 11 ] The indoor dining PHO March 2021 expired on April 19, 2021.

That expired Order was repealed and replaced on April 21, 2021, wherein indoor dining was prohibited That Order was repealed and replaced on May 24, 2021 permitting indoor dining, subject to terms and requirements, including a two-metre distance amongst group dining patrons and the physical barriers. [ 12 ] Rule 7 (14) (

i) of the Small Claims Rules permits a judge to dismiss an action at a settlement conference or on a separate stand- alone application in order to address an efficient, just, and simple resolution of claims ( Mitchell v. Edmond , 2007 BCPC 295 ). A separate application is brought via Rule 16 (6) (

o) which states:

(6) A judge may make any of the following orders after a hearing: … (

o) any other order that a judge has the power to make and notice of which is served on another party. This includes the Court’s power to dismiss a claim if there is no triable issue disclosed, including if it is without reasonable grounds, is frivolous or is an abuse of the court’s process ( Watch Lake North Green Lake Volunteer Fire Department Society v. Haskins , 2010 BCPC 114 ). DECISION [ 13 ] In carefully considering the submissions, the Claim is dismissed. [ 14 ]

Section 92 of the Public Health Act prevents a claim against a Provincial Health Officer for making PHOs, and this would include indoor dining.

Section 92 sets out that there cannot be a proceeding for damages commenced or pursued against a public health

officer because of something done or omitted to be done in the exercise or intended exercise of their powers, or throughout theirperformance in their duties. As set out in the legislation, this includes a Public Health Officer. [15] In making the indoor dining orders, the Public Health Officer acted lawfully.

In doing so, pursuant to Sections 30-32 and 39 (3)of the PHA, it includes the exercise of that power to address health hazards, a condition or risk posed to cause or create a health hazard,an order to prevent a person or persons from doing anything that may be seen to reasonably cause a health hazard, to mitigate or preventfurther harm arising from that health hazard, make orders regarding “a place,” and make orders for specific classes of persons.

ThePublic Health Officer may exercise such powers under an emergency, and that emergency was declared on March 17, 2020 (Beaudoin v.British Columbia, 2021 BCSC 512). [16] The Claim is dismissed, as no legal proceeding for damages can be brought against the Public Health Officer for the indoordining orders, and thus there is no triable issue disclosed. [17] In addition, in essence the Claimant is seeking a judicial review and has alleged no cause of action in which this Court hasjurisdiction.

Section 3 of the Small Claims Act articulates that this court does not have the power of a judicial review. The Claim seeksdamages from the expense of plexi-glass and lost revenue, however, no cause of action in tort is pled, and it simply articulates that thePHOs have no science behind them. The Claimant is seeking a judicial review of the PHOs as it pertains to dining, and that remedy andrelief is outside the jurisdiction of this honourable court (Pomfret et. al. v.

Van Vugt et. al., 2014 BCPC 167). [18] In addition, and in the alternative, although not expressly pled nor found by this Court, if the Public Health Officer was negligentin the making of the various PHOs and particularly as it pertains to indoor dining, the Public Health Officer does not owe a private dutyof care and a private law duty to individual businesses. This Court is unable to find any negligence on the part of the Defendant. TheClaimant has not pled nor provided any evidence that the Defendant owed the Claimant a duty of care, which would require a closerelationship between the two parties (Mustapha v.

Culligan of Canada Ltd. 2008 SCC 27). I am unable to find a close relationshipbetween the parties (Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care), (Ont CA)). Nothingarises from the pleadings or submissions from the Claimant that he and his business had any interactions with the Public Health Officer.In accordance with Eliopoulos, the Court will dismiss an action, as there are no statutory or regulatory provisions that create or require aduty to protect a private interest of persons.

To do so would create chaos and interfere with the Public Health Officer’s legal authorityand duties to the public as a whole (Chingee v. British Columbia, 2017 BCCA 250). [19] The Public Health Act delegates the authority to the Public Health Officer the ability to make public health orders as part of herduties and responsibilities, which ensures the constant monitoring of the health, safety and well-being of British Columbians in anindependent manner, and in doing so must ensure that the health and safety of the general public is paramount.

Again, that does notattach a related or recognized duty of care to a specific business or entity; if that were the case, to do so would create chaos to interferewith the general public and the Public Health Officer’s duty of care owed to the public as a whole (The Los Angeles Salad Company Inc.v. Canadian Food Inspection Agency, 2013 BCCA 34). [20] Finally, while not specifically pled, the Claimant raised the consideration of misfeasance in the public office and the execution ofthe duties by the Defendant.

The Claimant alleges that the Defendant was in a conflict of interest when the March 2021 PHO was made,as she has an ownership stake in a winery and seeks to convince this Court that the March 2021 PHO did not close tasting rooms, thusthe Public Health Officer received a personal financial benefit by placing different restrictions on wineries. After carefully reading thesubmissions and hearing submissions from the Parties, I am not convinced that the Claimant can succeed on the requirements ofmisfeasance in public office, and therefore there is no cause of action in tort, and accordingly no triable issue.

The March 2021 PHOincluded “all liquor manufacturing facilities with tasting rooms,” and thus tasting rooms were subject to the same terms and conditions ofthe March 2021 PHO. [21] In being unable to find misfeasance, I have carefully considered “Category A,” wherein a Public Health Officer would exercisehis or her power with a targeted and specific purpose of harming the Claimant.

That threshold is high, and I am unable to find anything tosupport such a finding in the matter before me. ”Category B” misfeasance requires evidence that the Public Health Officer knowinglyparticipated and engaged in a deliberate unlawful act with an awareness that such

an act would harm or likely harm the plaintiff (J.P. v.British Columbia (Children and Family Development), 2017 BCCA 308). I am unable to find any evidence of intentional, misguided,deliberate, and dishonest conduct on the part of the Defendant. The evidence before me supports that such actions were made with theinterests of the general public in the Province of British Columbia and the impact on the health care system as a whole (Odhavji Estate v.Woodhouse, 2003 SCC 69; Rain Coast Water Corp. v. British Columbia, 2019 BCCA 201).

The Orders were made in accordance withthe legal authority afforded to the Public Health Officer, and in doing so, were made to prevent and reduce the transmission and impactof COVID-19 upon the Province. The public health emergency remains in place. All health orders were made in good faith, including therecitals, which was for the express purposes of reducing the transmission and spread of COVID-19. [22] There is no doubt in my mind that some persons and businesses have been impacted more so than others. We are inunprecedented times in our lifetimes with a global pandemic.

I am, however, unable to find any deliberate act on the part of theDefendant to harm or injure the Claimant. While not specifically pled, the Claimant is seeking to convince this Court that theDefendant’s decision to permit indoor tasting rooms to remain open, albeit with restrictions, would raise a reasonable apprehension ofbias.

That requires a judicial review of which this Court does not have the jurisdiction to do so. [23] The Claimant, in filing this Notice of Claim, is seeking to convince this Court that this is what should be considered a “CategoryB” misfeasance, because private dining entities were impacted, as opposed to dining being permitted on BC Ferries, which has “restrictedair flow,” as well as wineries for tastings while standing up.

The Claimant seeks to convince this Court that the Public Health Officeracted in bad faith, as she has a part ownership in a Similkameen winery, and that tasting rooms were not covered by the PHOs in placefrom time to time. The Claimant has not alleged such in any of the pleadings on behalf of the Claimant, and, further, while this Courtdoes not have any evidence to support bad faith, that is tantamount to a judicial review. This Court does not have the jurisdiction toundertake a review of the PHOs that have been enacted as they pertain to such facilities since the global pandemic in March 2020.

Inaddition, the Claimant advances that the Public Health Officer is in a conflict of interest, however, the Claimant acknowledged in thisApplication that he has not pursued this matter with the Ombudsman, and that this avenue is available to him should he wish to do so.

[ 24 ] After carefully reviewing the pleadings, the case law, the statutes and regulations, and hearing submissions from both parties, the Application to dismiss the Claim is permitted. While Courts are reluctant to dismiss a Claim at this juncture, I am satisfied that the facts and case law before me support such a decision ( Walls v. Ross , 2001 BCPC 187 ). The Claim is statute barred. There is no evidence before me that the Public Health Officer acted in bad faith.

Further, this Court has no jurisdiction to undertake what, in essence, the pleadings and the oral submissions of the Claimant seek are tantamount to a judicial review ( Bryfogle v. Smit et al. , 2004 BCSC 556 ).

Finally, the Defendant in her capacity as a Public Health Officer for the Province of British Columbia did not owe a private duty of care to the Claimant. [ 25 ] These are very clearly unprecedented times, and while each PHO since March 2020 has had an impact on all British Columbians in one way or another, and while I acknowledge that some of the PHOs have impacted some persons more than others during this global crisis, for the reasons set out above, the Notice of Claim is dismissed. [ 26 ] These are my reasons, all of which are respectfully submitted. _______________________________ The Honourable Judge K.

Arthur-Leung Provincial Court of British Columbia