February 28, 2023
CM v Alberta
In February 2022, amid the national Convoy Protests, Alberta’s Chief Medical Officer of Health (CMOH) issued CMOH Order 08-2022 (the Order). The Order removed all Alberta masking requirements in schools, meaning that school children were no longer required to wear masks at school (although, of course, they could if they chose to).
Around the same time the Order was promulgated, the Minister of Education issued a letter to school boards (the Letter), stating that:
“…school authorities cannot deny their students access to in person education due to their personal decision to wear or not to wear a mask in schools.”
It was argued that this Letter (which was shared by the Minister here) prohibited school boards from implementing their own local masking mandates that exceeded provincial guidance.
The Applicants in this case were the litigation representatives and parents of school-aged children in Alberta. The Applicants alleged that the Order and the Letter exceeded the authority vested with the CMOH and the Minister.
By the time the matter was heard, however, the Application was arguably moot. The Court decided to exercise its discretion to hear and decide the matter to “benefit the CMOH in considering future public health orders” and provide clarity as to the legal weight of the Minister’s Letter.
The Applicants argued that the Order was neither effective nor wise public policy. The Court refused to consider whether the Order was sound public policy and noted that the Applicants failed to bring sufficient evidence to establish that the Order was made for an improper purpose.
In reviewing the Order, the Court applied a deferential reasonableness standard, noting that it could only find the Order unreasonable if it was irrelevant, extraneous, or completely unrelated to the statutory purpose in the Public Health Act, RSA 2000, c P-37.
The Court emphasized the prerequisites set out in the Public Health Act, which requires the CMOH to form an opinion that the Order is appropriate or necessary. The evidence before the Court led Justice Dunlop to conclude that the CMOH was not the decision-maker and that it was not the CMOH’s opinion that informed the Order. Rather, the Order was the decision of the Priorities Implementation Cabinet Committee (PICC).
Justice Dunlop found that the PICC was not authorized under the Public Health Act to make the decision to issue an order of this nature. In addition, the CMOH could not delegate her authority to the PICC. The Public Health Act only allows the CMOH to delegate to her Deputy or another employee of her department. The Court found that if the CMOH had delegated the decision to the PICC then such delegation was unreasonable and ultra vires.
Although there was evidence that the CMOH provided information to the PICC and made the decision to remove masking through an iterative decision-making process, the Court’s decision seems to find that only the CMOH in her sole and exclusive opinion and authority can make a Public Health Order. This finding suggests that non-CMOH empowered actors have very limited ability to influence or otherwise participate in the decision-making process. In response, Premier Smith announced that her staff will be looking at legislative changes in response to the decision.
The Letter and Declaratory Relief
One interpretation of the Letter is that it was intended to be informative rather than a binding directive. Such correspondence is arguably only suitable for judicial review if it is coercive in nature or creates a cognizable threat to a legal interest. In addition, declaratory relief (which is what the Applicants sought) is an exceptional and discretionary remedy which is not available to parties who are seeking a declaration of fact.
The Court did not grapple with whether the Letter was appropriate for judicial review but did note that there was a “live issue” with respect to the Letter and that declaratory relief was appropriate in this instance due to the widespread misunderstanding of the legal effect of the Letter. The Court therefore confirmed that the Letter did not prohibit school boards from implementing their own masking mandates.
The Public Health Act vests extraordinary power in the CMOH to take whatever steps she considers necessary, and the Act may prohibit persons from engaging in activities for “any period and subject to any conditions” the CMOH considers appropriate. This decision affirms that only the CMOH, her Deputy, or her expressly delegated employees may exercise this authority, and that her decisions should be immune from political influence or ideology. Finally, the decision confirms that unlike regulations, Ministerial statements, without more, are not binding.
Robert Hawkes KC, is a partner at JSS Barristers. Click here for Robert's bio.
Sarah Miller is an associate at JSS Barristers. Click here for Sarah's bio.
 The Applicants alleged that the Order was made to capitulate to political protests. The Applicants also alleged that the Order and the Letter violated sections 7 and 15 of the Charter and were unconstitutional but failed to bring sufficient evidence on these points. The Court dismissed the Charter arguments.
 See for example, the discussion in Larny Holdings Ltd v Canada (Minister of Health), 2002 FCT 750.