IN-DEPTH: Legal Battles Over COVID Measures Continue in Canadian Courts

Tamara Lich walks with her lawyer Lawrence Greenspon (L) as they make their way to the courthouse on the first day of Lich’s trial, in Ottawa on Sept. 5, 2023. The Canadian Press/Adrian Wyld

The pandemic may be over, but the legal battles over various government restrictions and mandates continue. A plethora of cases have made their way through the courts this year and will continue through 2024. In these cases, judges are deciding the limits of Canadians’ freedoms and government power.

One of the most prominent cases is the ongoing trial of Freedom Convoy organizers Tamara Lich and Chris Barber. Another is the so-called Ingram decision in Alberta, in which a judge ruled—on a technicality—that the province’s public health orders were invalid.

The Ontario Superior Court, on the other hand, upheld the validity of public health orders in a Nov. 27 decision.

Other cases include family disputes over whether vaccines were “safe and effective” for children, pastors who refused to stop public worship, business owners who refused to check vaccination status, and employees fired over workplace vaccination mandates.

Health-care workers who were critical of COVID measures have been subjected to disciplinary hearings with their professional regulators, but some have also brought those regulators to court for judicial review.

Some cases have yet to be heard or ruled upon, while some that have been decided are being appealed. Some hope to take their cases all the way to the Supreme Court of Canada to decide whether COVID measures violated charter freedoms.

The Lich-Barber Case

Ms. Lich and Mr. Barber face charges of mischief, counselling others to commit mischief, and intimidation. They helped organize the Freedom Convoy, which gathered in downtown Ottawa to protest vaccine mandates in early 2022.

In a controversial move, the federal government invoked the Emergencies Act to clear the protest, the first invocation of the act since it became law in 1988.

The Freedom Convoy has been a test of civil liberties in Canada. What does it mean to “cross the line,” as the prosecution claims the defendants did, and become a “criminal” rather than a “protester”? That question is being determined in the case.

Ms. Lich’s call on protesters to “hold the line” despite police orders to leave the capital is among the actions being scrutinized as a criminal act. She has said she wasn’t encouraging the protesters to stay in the capital, but rather to stay true to their values.

An RCMP tactical vehicle drives past the Parliament Buildings after a massive police operation quelled the Freedom Convoy protest in Ottawa, on Feb. 20, 2022. The Canadian Press/Adrian Wyld

Alberta pastor Arthur Pawlowski was found guilty for uttering similar comments during the Coutts border blockade in 2022. “Don’t you dare break the line,” he told protesters in a speech. His counsel argued he meant this figuratively, but the judge analyzed the speech and its context and decided Mr. Pawlowski “deliberately incited the protesters to commit mischief.”

Lawyers in the Lich-Barber trial have sought to establish how much influence the two had over protesters in Ottawa, the extent to which they cooperated with police, and the extent to which the two worked together (the Crown prosecutor has argued they collaborated so closely that evidence against one should apply to both).

The trial began in September and was due to end mid-October, but it has continued for more than 30 days and is currently adjourned until the new year.

The government’s decision to invoke the Emergencies Act was scrutinized by Public Order Emergency Commissioner Paul Rouleau earlier this year. In his Feb. 17 report, Mr. Rouleau concluded with “reluctance” that the government was justified in invoking the act, but he highlighted failures in policing and government action that led to a state of emergency.

The Lich-Barber trial is now delving more into the details of what happened leading up to this landmark use of the Emergencies Act, formerly the War Measures Act.

Ottawa residents and business owners testified at the trial as to the impact the protest had on them. A $290 million class-action lawsuit against Ms. Lich and Mr. Barber is being led by one of those residents, Zexi Li. The suit claims the protest caused psychological distress and loss of income due to business closures.

Ingram Decision

The story of the Ingram decision (named after one of the plaintiffs who challenged Alberta’s health measures) comes with twists and turns.

Critics of COVID mandates got the victory they wanted: Public health measures were ruled invalid, and charges were dropped against many who had violated them. But it came in an unexpected, roundabout way.

Essentially, the judge ruled the measures invalid because elected officials put them in place. Legally, the judge said, the provincial medical officer is the only one with the authority to do so.

But that caused an uproar in itself. Some have said that only elected officials should have that kind of power, not the unelected medical officer.

As a result of the ruling, new legislation has been tabled in Alberta to make sure decision-making authority rests with elected officials should a health emergency again arise.

A pedestrian walks through an empty downtown Calgary on Dec. 9, 2020. The Canadian Press/Jeff McIntosh

The victory of the Ingram decision was also tempered by the judge’s decision regarding charter rights. The judge said that health measures infringed on charter freedoms but that it was a justified infringement given the public health emergency—an idea repeated by other court decisions following the pandemic.

Michael Alexander is one of the lawyers who intends to take matters to the Supreme Court if needed, to have Canada’s top court decide if such infringements on charter rights are indeed justified. Mr. Alexander’s clients include Ontario doctors censured by their regulatory body, the College of Physicians and Surgeons of Ontario.

Health-Care Workers

One of the allegations against these doctors is that they were publicly critical of COVID measures, including questioning the safety and efficacy of the vaccine. Mr. Alexander argues that their right to free expression should protect them from disciplinary action.

The most recent tribunal decision in these cases was against Dr. Mark Trozzi in October, finding that he committed professional misconduct. He’s still waiting to hear what the penalty will be, and whether he will lose his licence. Mr. Alexander says Dr. Trozzi will appeal the decision to a divisional court.

Dr. Theresa Szezepaniak of British Columbia recently lost her appeal to a hospital board in an attempt to get back to work amid a doctor shortage. She hasn’t complied with vaccine mandates for health-care workers and has thus lost hospital privileges in the province.

About 2,500 B.C. health-care workers lost their jobs over their choice not to be vaccinated, according to the Vancouver Sun. From Nov. 20 to Dec. 1, the B.C. Supreme Court heard the case of 11 health-care workers who are challenging provincial vaccine mandates.

Employees in many other professions are fighting loss of wages, termination, and employment insurance refusals over vaccine mandates. Some of those cases are currently playing out in labour arbitration, while some are in the courts.

Fired for Non-Vaccination

In a Dec. 14 arbitrator decision, the Purolator courier company was ordered to compensate employees who were fired for not complying with vaccine mandates.

In May, a military administrative tribunal found that Canadian Armed Forces (CAF) vaccine mandates violated the charter rights of soldiers who refused vaccination. It said the mandates were “arbitrary” in some aspects and “overly broad.” More than 300 CAF members have filed a $500 million class-action lawsuit against the military over the issue.

In September, a federal social security tribunal ruled in favour of a Toronto delivery driver, Timothy Conlon, who fought the denial of his employment insurance (EI) benefits after losing his job for refusal to be vaccinated.

However, the tribunal ruled against Robin Francis, a worker at the London Health Sciences Centre in London, Ont., who sought EI after his termination for refusing the vaccine. Mr. Francis took the matter to the Federal Court of Appeal, which decided in November to uphold the denial of his EI benefits.

Some workers who refused vaccination have complained that their unions failed to represent them.

A Canadian flag patch is shown on an Armed Forces member's uniform in Trenton, Ont., on October 16, 2014. The Canadian Press/Lars Hagberg

The Alberta Labour Relations Board recently ruled in favour of the unions in one such case. Ottawa Hospital employees were recently notified that their union had dropped their grievances over unpaid leave due to not being vaccinated.

Pilots and other airline workers are pursuing a class-action suit against the federal government over vaccination mandates.

Lawyer James Kitchen told The Epoch Times that some of the most successful employee fights against vaccine mandates have been won outside the courts, in backroom conversations.

“I helped some people keep their jobs and stay in school in 2021–2022 despite not taking the shots. This was not done through courts, but simply through my advocacy with the employers/universities,” he said via email. He said he also helped nurses and doctors in Alberta and British Columbia avoid discipline through such advocacy.

‘Safe and Effective’ for Kids?

During the pandemic, courts also in many cases decided on family disputes over whether children should be vaccinated. Mr. Alexander highlighted a couple of examples of this type of case, including O.M.S. v. E.J.S. in Saskatchewan.

In 2021, Saskatchewan’s Court of King’s Bench—then called the Court of Queen’s Bench—Justice Michael Megaw ruled that a 12-year-old girl must be vaccinated according to her father’s wishes. The girl and her mother were against the vaccination.

The mother brought the matter to the Saskatchewan Court of Appeal, which in January this year overturned the decision, siding with the mother.

“The Saskatchewan Court of Appeal ruled that it is inappropriate to refer to any approved medication as ‘safe and effective’ since every medication has side effects and the potential efficacy of any medication varies based on each patient’s unique health profile,” Mr. Alexander said, explaining what he finds especially significant in this case.

The safety of the vaccine was not the key element in the appeal judges’ decision—it was based more on the mental well-being of the child and her relationship with her father being damaged by forcing her to be vaccinated. But, as with many legal cases related to the pandemic, the safety and efficacy of COVID vaccines and other measures were discussed at length in the decision.

The appeal judges said that “safe and effective” has its limits, as Mr. Alexander said, and that government approval does not mean the vaccine’s safety could not be “the subject of debate among reasonable persons.”

A similar family dispute in Ontario demonstrates how judges can look at the same case differently.

In J.N. v. C.G., a mother argued against her ex-husband’s wish to vaccinate their two youngest children, aged 10 and 12 at the time.

Superior Court Justice Alex Pazaratz ruled in the mother’s favour in a February 2022 ruling. Mr. Pazaratz said the mother “presented all her evidence and made all her oral submissions in a calm, mature, articulate, analytical, extensively researched, and entirely child-focussed manner.” He said the father was on a “relentless campaign to dismiss the mother as some sort of lunatic” and that he “bordered on hysterical.”

The father appealed the decision, however, and won. In the February 2023 ruling, the appeal judges criticized the mother’s presentation, saying that it “relied on information obtained from the Internet, primarily from those who cast doubt on the importance and safety of the vaccine.”

Mr. Alexander said this decision gives the federal government too much “benefit of the doubt” about its representation of the vaccine as safe, and places “an almost impossible burden of proof” on parents with concerns. He said the evidence the mother submitted included the Pfizer monograph listing side effects and articles by experts such as Dr. Robert Malone, a pioneer of mRNA technology.

The Year Ahead

Mr. Alexander has high hopes for his case with Dr. Trozzi in the new year, which will be heard at the Ontario Divisional Court, a branch of the Ontario Superior Court. The crux of it will be Dr. Trozzi’s right to publicly express his opinion on the safety of vaccines and other COVID matters.

“His case will determine whether we still live in a liberal democracy that guarantees everyone the right to freedom of expression,” Mr. Alexander said.

Mr. Kitchen said one of his cases that could have a great impact in the new year is that of Calgary chiropractor Dr. Curtis Wall. A College of Chiropractors of Alberta disciplinary tribunal in January this year found that Dr. Wall had committed professional misconduct primarily because he didn’t wear a mask while treating patients.

The doctor tried to for some time, but found that the mask caused him to feel anxious and claustrophobic, he says. He says he felt the science didn’t show any likely harm to others by his not wearing a mask. Dr. Wall is appealing the decision to the college’s Council. The hearings on his case thus far have brought forward expert testimony on both sides regarding the efficacy of masks during the pandemic.

Mr. Kitchen says many cases of people who lost their jobs due to vaccine mandates will continue in 2024, with some only likely reaching a decision by the end of the year or later.

The Lich-Barber trial will resume on Jan. 4. And in the separate $290 million class-action suit, lawyers representing Ms. Lich and Mr. Barber and other defendants are currently awaiting a decision on their request to have the case thrown out.

The lawyers say it’s a strategic lawsuit against public participation (SLAPP). Under anti-SLAPP legislation, defendants can ask a judge to take a preliminary look at the case and determine whether it has enough merit to proceed to trial.

The Justice Centre for Constitutional Freedoms (JCCF) is representing them in this case. JCCF president John Carpay said in a recent Epoch Times op-ed that the amount of time and resources being used to try Ms. Lich and Mr. Barber is inordinate.

“While Ontario prosecutors seem to lack the resources to bring accused rapists to trial within 30 months, the Crown has chosen to spend taxpayer-funded resources to prosecute Lich and Barber over vehicles that may have been parked illegally during the peaceful Freedom Convoy protest,” he wrote