Judge Green Lights Class-Action Lawsuit for Alberta Business Owners Impacted by Pandemic Restrictions

Christopher Scott, owner of the Whistle Stop Café, speaks during a rally against measures taken by government and health authorities to curb the spread of COVID-19 at his cafe in Mirror, Alta., on May 8, 2021. The Whistle Stop was shut down by Alberta Health for not complying with COVID-19 rules. Jason Franson/The Canadian Press

A Calgary judge has certified a class action lawsuit filed on behalf of Alberta business owners seeking compensation for losses they suffered due to pandemic-related restrictions.

Justice Colin Feasby, sitting before the Alberta Court of King’s Bench, ruled on Oct. 30 that the lawsuit meets the requirements for class proceeding. The lawsuit asks the province to compensate any Alberta businesses affected by the public health restrictions issued by the Chief Medical Officer of Health (CMOH) during the pandemic.

“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 (chief medical officer of health) orders between March 17, 2020, and the date of certification,” court documents read.

The plaintiffs argue they are entitled to such compensation because the CMOH orders were declared unlawful under the Public Health Act in 2023.

“The proposed representative plaintiffs assert that because the CMOH Orders were ultra vires, Alberta is liable for proposed class members’ losses caused by the business restrictions and closures required pursuant to the CMOH Orders,” reads the decision.

Christopher Scott, owner of The Whistle Stop Café in central Alberta, was assigned by the judge as the representative plaintiff of the class action, which was filed by lawyer Jeffrey Rath.

The province had argued against the certification of the lawsuit, asserting that “Alberta enjoys immunity for various reasons including that the CMOH orders were policy decisions.”

The CMOH orders were ruled ‘ultra vires’—meaning beyond the legal authority granted by the Public Health Act—in July 2023 by Justice Barbara Romaine in a case before the Court of King’s Bench of Alberta. She found that decisions related to pandemic restrictions were made by the provincial cabinet, whereas the law dictates that all decisions related to public health orders must be made by the CMOH, in that case, by then-Chief Medical Officer of Health Deena Hinshaw.

“Although, Dr. Hinshaw was maligned during the pandemic and afterwards as the symbol of the restrictions, she was not in fact the final decision-maker,” wrote Romaine in her decision. “The delegation of her final decision-making authority to cabinet is not permitted by section 29 of the Public Health Act.”

Representative Plaintiff

The province had argued that Scott should not qualify as a representative of the class members because he kept his restaurant open during the restrictions imposed by the CMOH, and he gained customers as a result.

Feasby noted in his court decision that Scott raised some $120,000 in donations to fund his opposition to the CMOH orders, and added that Scott admitted on cross-examination that his public resistance led to more business for his restaurant.

Scott faced criminal charges for refusing to comply with the CMOH orders and spent a “brief” period in the Red Deer Remand Centre, according to the court document. In 2023, all charges against him were dropped after the orders were found to exceed legal authority.

The Calgary judge concluded that, while Scott’s situation differs from that of the class members, this does not disqualify him from serving as a representative plaintiff. “The question is whether he can ‘fairly and adequately’ represent the interests of the class,” Feasby wrote.

The lawsuit will proceed on six key issues, including whether the province breached the Alberta Bill of Rights, in particular property rights, and whether the pandemic restriction orders were “deliberate misconduct” by public officials.