Scribd Logo
Upload

Welcome to Scribd!

  • 42 views

    2024-09-16 - Defendants' Reply Written Submissions On Power

    Uploaded by

    Canadian Society for the Advancement of Science in Public Policy
    Dr. Henry's reply written submissions in our class proceeding in respect to the Supreme Court of Canada's Power decision. These submissions were provided at Justice Crerar’s request to the parties in his letter of 19 July, 2024.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd

    2024-09-16 - Defendants' Reply Written Submissions On Power

    Uploaded by

    Canadian Society for the Advancement of Science in Public Policy
    42 views3 pages
    Dr. Henry's reply written submissions in our class proceeding in respect to the Supreme Court of Canada's Power decision. These submissions were provided at Justice Crerar’s request to the parties in his letter of 19 July, 2024.

    Original Title

    2024-09-16 - Defendants' Reply Written Submissions on Power

    Copyright

    © Public Domain

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Dr. Henry's reply written submissions in our class proceeding in respect to the Supreme Court of Canada's Power decision. These submissions were provided at Justice Crerar’s request to the parties in his letter of 19 July, 2024.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    42 views3 pages

    2024-09-16 - Defendants' Reply Written Submissions On Power

    Uploaded by

    Canadian Society for the Advancement of Science in Public Policy
    Dr. Henry's reply written submissions in our class proceeding in respect to the Supreme Court of Canada's Power decision. These submissions were provided at Justice Crerar’s request to the parties in his letter of 19 July, 2024.

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 3

    September 16, 2024 via email

    Vancouver Law Courts


    Supreme Court Scheduling
    800 Smithe Street
    Vancouver, BC V6Z 2E1

    Attn: William Gallagher


    Manager, Supreme Court Scheduling (Civil)

    Dear Mr. Gallagher:

    Re: CSASPP v. HMK & PHO


    Supreme Court of British Columbia Vancouver Registry No. S210831

    We are counsel for the defendants in the above-noted proceeding, in which Justice
    Crerar has judgment on a certification application under reserve. We write further to the
    Court’s memorandum of July 19, 2024. We ask that you please direct this
    correspondence to Justice Crerar.

    These submissions respond briefly to the plaintiff’s submissions dated August 30, 2024.

    There is nothing in the plaintiff’s submissions on Power that requires response (beyond
    what the defendants have already submitted in our letter dated August 30, 2024).

    Towards the end of the plaintiff’s submissions, the plaintiff cites Ingram and remarks
    that “the extent of political involvement [in the PHO’s orders] by the executive and
    various committees is not publicly known at this time”.1 In Ingram, the Court of King’s
    Bench of Alberta found that certain public health orders made by Chief Medical Officer
    of Health for Alberta (CMOH) had not been made independently by the CMOH, but
    rather implemented decisions that had actually been made by the Cabinet of Alberta.

    In response, the defendants make two points.

    1Plaintiff’s submissions dated August 30, 2024 at para. 33; Ingram v. Alberta (Chief Medical Officer of
    Health), 2023 ABKB 453.

    Ministry of Attorney General Legal Services Branch Phone: 604 660-6795


    Litigation Group Email: [email protected]
    -2-

    First, the plaintiff has not pleaded—nor has the plaintiff ever previously suggested, at
    any point since commencing this action some 43 months ago—that the PHO did not
    make her orders independently. Perhaps anticipating this objection, the plaintiff says
    there was “witness testimony, cross-examination, and discovery” in Ingram but none of
    this “is available in the pre-certification procedure in British Columbia”.2 In this
    submission the plaintiff is precisely backwards. Pleadings always come before
    discovery. Discovery is not a fishing expedition in which a plaintiff casts around for facts
    that can later be pleaded. Rather, the pleadings control the scope of discovery. As
    McLachlin C.J.C. emphasized for a unanimous Court in Imperial Tobacco, a plaintiff
    cannot rely on the possibility that more facts may turn up later:

    It is incumbent on the claimant to clearly plead the facts upon which it relies in
    making its claim. A claimant is not entitled to rely on the possibility that new
    facts may turn up as the case progresses. The claimant may not be in a
    position to prove the facts pleaded at the time of the motion [to strike]. It may
    only hope to be able to prove them. But plead them it must. The facts pleaded
    are the firm basis upon which the possibility of success of the claim must be
    evaluated.3

    To be clear, this is not an invitation for the plaintiff to deliver yet another proposed
    amended pleading, which is already in its eighth iteration.4 The plaintiff has had ample
    opportunity to develop its theory of the case. The time for the plaintiff to propose
    amendments has long passed.

    Second, and in any event, even if the plaintiff had pleaded that the PHO did not make
    her orders independently, there would be no basis in fact for that allegation. The
    evidence is that the PHO regularly briefed Cabinet and various deputy ministers to
    provide updates on “the current state of COVID-19 and the epidemiological situation in
    British Columbia”.5 This should come as no surprise: under the Public Health Act, it is
    part of the PHO’s role to advise public officials on public health issues.

    However, there is no evidence whatsoever that any public officials pressured or


    influenced the PHO in the exercise of her statutory power to make public health orders.
    There is simply no evidence whatsoever that the PHO did not make her orders
    independently.

    2 Plaintiff’s submissions dated August 30, 2024 at fn31.


    3 R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 22 (internal citations omitted).
    4For a list of the various interactions, see the defendants’ submissions dated August 30, 2023 at para.
    14. (These are the submissions that were delivered after the plaintiff delivered a sixth version of its
    proposed further amended notice of civil claim on June 5, 2023, more than five weeks after the
    certification hearing had concluded and judgment had been reserved.)
    5 Brazier Affidavit at para. 13 (AR, vol. 7, tab 43).
    -3-

    The plaintiff’s late-breaking, unpleaded, and wholly speculative suggestion that there
    may have been “political involvement” in the PHO’s orders does not change anything.
    The certification application should be dismissed and the action should be dismissed
    pursuant to R. 9-5.

    Yours truly,

    Emily Lapper
    Legal Counsel

    cc: Polina Furtula, counsel for the plaintiff (via email)

    You might also like