1

No. S210831
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN
CANADIAN SOCIETY FOR THE ADVANCEMENT OF
SCIENCE IN PUBLIC POLICY

PLAINTIFF
AND

HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA

AND DR. BONNIE HENRY, IN HER CAPACITY AS PROVINCIAL HEALTH
OFFICER FOR THE PROVINCE OF BRITISH COLUMBIA

DEFENDANTS

Submissions of the Plaintiff

Re Power Decision

Canadian Society for the Advancement His Majesty the King in right of the
of Science in Public Policy Province of British Columbia
Dr. Bonnie Henry in her capacity as
Polina H. Furtula Provincial Health Officer for the
Westpoint Law Group Province of British Columbia
2200 – 1177 W. Hastings Street
Vancouver, BC V6E 2K3 Chantelle Rajotte
Emily Lapper
Trevor Bant
Ministry of Attorney General
1301 – 865 Hornby Street
Vancouver, BC V6Z 2G3
1001 Douglas Street
Victoria, BC V8W 2C5
 2

Overview

1. In Canada (Attorney General) v. Power, 2024 SCC 26, (“Power”) the Supreme
Court of Canada was tasked to reconcile the courts’ duty to protect the rights guaranteed
by the Canadian Charter of Rights and Freedoms (the “Charter”), with the state’s
legislative autonomy to govern effectively. Central to the appeal was how to apply these
principles in the context of section 24(1) of the Charter, which authorizes courts to award
damages to individuals for the infringement of their Charter rights.

2. The 5 – 4 decision confirms and broadens potential liability of the state for the
conduct of public servants for Charter damages, including those who form part of the
executive. Power confirms that public servants cannot hide behind parliamentary
privilege and thus absolute immunity, as it would inevitably risk extending the privilege to
the executive, with far-reaching and unforeseeable consequences.1

3. Chief Justice Wagner and Justice Karakatsanis authored the reasons of the five-
judge majority, which is encompassed in paras. 1 - 119 of the judgment.

4. The Power decision strengthens and adds further commentary to guide this Court
with respect to the plaintiff’s submissions on:

i. Charter damages;

ii. Section 92 immunity.

i. Charter damages

5. Power confirms that the four-part test in Vancouver (City) v.

Ward (“Ward”) governs all claims for Charter damages. However, the Majority rejected
2

the argument that the Crown immunity threshold should be a preliminary matter, before
engaging with the Ward framework. Instead, state immunity is to be considered at the
third step of the Ward test.3

6. To recap, Ward established a four-part test to determine whether Charter damages

are an appropriate and just remedy, as follows:4

i. Has a Charter right been breached?

1
Power, para. 117.
2
Vancouver (City) v. Ward, 2010 SCC 27 (“Ward”) (Joint BOA, Tab 206)
3
Power, para. 114.
4
Ward, starting at para. 15.
 3

ii. Would damages fulfill one or more of the related functions of

compensation, vindication of the right, and/or deterrence of future
breaches?

iii. Has the state demonstrated countervailing factors that defeat the
functional considerations that support a damage award and render
damages inappropriate or unjust?

iv. What is the appropriate quantum of damages?

7. Diving into the third step, Power confirmed that immunity considerations are an
expression of the principles underlying the good governance concerns considered at the
third stage of Ward.5

8. In considering the third branch of the test, the Majority reviewed the threshold
established in Mackin. 6 In Mackin, Gonthier J. considered the circumstances in which
damages may be an appropriate and just remedy for legislation later declared
unconstitutional, and described the threshold as capturing state conduct that was “clearly
wrong, in bad faith or an abuse of power”.7

9. Power explained that the “clearly wrong, in bad faith or an abuse of power”
formulation requires a more objective approach. The Majority clarified that this inquiry is
better understood as a focus on whether the legislation is “clearly unconstitutional”, which
directs a judge to look objectively at the legislation itself, particularly the nature and extent
of its constitutional invalidity. Underlying this objective assessment is a presumption of the
legislature’s knowledge of and respect for basic Charter rights.8

10. The Majority explicitly rejected any formulations that would set the threshold so
high that it immunizes the government from liability for unprecedented but egregious
constitutional breaches.9

11. The Majority concluded that the threshold will be met where the legislation was
“clearly unconstitutional” in the sense that, at the time of its enactment, it would clearly
violate Charter rights.10

12. Where the law is clearly unconstitutional, the state may have shown a “‘clear
disregard’ for Charter rights”. A finding of clear unconstitutionality will usually imply that

5
Power, para. 114.
6
Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405 (“Mackin”) (Joint BOA, tab
133)
7
See discussion in Power at para. 100. In Mackin, the SCC also considered the availability of Charter
damages for the enactment of Charter-infringing unconstitutional legislation.
8
Power, para. 103.
9
Power, para. 104.
10
Power, para. 104.
 4

the state either knew that the law was clearly unconstitutional, or was reckless or wilfully
blind as to its unconstitutionality.11 At this point, limited immunity ends as good
governance concerns can no longer justify shielding the government from liability for
violating Charter rights.12

13. In other words, it is not necessary to show bad faith or an abuse of power (although
other rare situations may require judges to ask whether there is evidence that the state
acted in bad faith or abused its power in enacting the invalid law).13

14. The Majority further emphasized that the threshold is exacting, and a plaintiff’s
failure to plead detailed particulars will be fatal to its claim at the pleadings stage. 14

Power supports the plaintiff’s position

15. The plaintiff is not advancing any novel theory of Crown liability. The plaintiff seeks
damages pursuant to s. 24(1) because Charter rights were violated as a result of the
clearly unconstitutional orders, directives, or decrees of the defendants.15

16. The plaintiff has provided detailed pleadings that the defendants knew or were
wilfully blind that their orders, directives, or decrees were contrary to the Charter.16

17. Indeed, many of the Provincial Health Officer’s orders explicitly acknowledge that
they limit Charter rights.17

Power weakens the defendants’ defence of “good government”

18. The defendants’ gave short shrift to Charter damages without engaging the Ward
analysis in their earlier submissions.18 The Defendants simply argued that it was “plain
and obvious” Charter damages will not be awarded” and that “good governance concerns
militate against awarding Charter damages.19

19. To be fair, engaging in a detailed Ward analysis at certification is not necessary. In

practice, whether a Charter violation results from the law, from discretionary state action,

11
Power, para. 105.
12
Power, para. 115.
13
Power, para. 105.
14
Power, para. 112.
15
AR, tab 52, paras. 138-167.
16
See FANOCC Part 1, paras. [Link], [Link]., 61.a., 61.b, Part 3, paras. 11a, 28 – 31.
17
For example, see Recital N of Post-secondary Institution Housing COVID-19 Preventive Measures” –
September 9, 2021 ; Recital R. of Hospital and Community (Health Care and Other Service) Covid-19
Vaccination Status Information and Preventive Measures – October 21, 2021.
18
AR, tab 54, paras. 285-286.
19
AR, tab 54, paras. 285-286.
 5

or from a combination of the two is often a contested question of law and fact that can
only be resolved on the merits of a case.

20. It is sufficient to point out that Power supports the plaintiff’s position that Charter
damages are an appropriate remedy as the shield of “good governance” may provide only
a false sense of security to the defendants.

21. The question of whether the state’s conduct was “wrongful” is relevant to the
strength of its defence, not to the plaintiff’s ability to seek a remedy for the violation of
constitutional rights.

22. In this case, the impugned orders, directives, or decrees were clearly
unconstitutional and clearly violated Charter rights.20

23. As such, Power confirms that the defendants’ cannot rely on “good governance”
as a shield of immunity.

Combining Remedies

24. One of this Court’s questions at the certification hearing was why simply relying on
s.52 was insufficient. Power also addresses this concern.

25. The Majority reiterated that while there is a general presumption against combining
remedies under ss. 24(1) and 52(1) there is no categorical restriction. Provided an award
of Charter damages is not duplicative, the potential to combine declarations and damages
must remain available in situations where a declaration would fail to satisfy the functional
need for compensation, vindication or to meaningfully deter future breaches.21

ii. Section 92 immunity

26. Power also supports the plaintiff’s position that the absolute immunity granted by
s.92 of the Public Health Act, is unconstitutional with respect to Charter damages.22

27. In the plaintiff’s Written Submissions,23 the plaintiff argues (and as interpreted by
subsequent court decisions) that the immunity at issue in Ernst24 is not an immunity that
applies to all state actors or to all government decision makers. It is a judicial immunity
extended to regulatory bodies and quasi-judicial administrative tribunals.25

20
Power, paras. 103 and 104.
21
Power, para. 45.
22
FANOCC, Part 2, para. 6, Part 3, paras. 31 and 33.
23
AR, Tab 52, at paras. 26-32.a.
24
Ernst v. Alberta Energy Regulator, 2017 SCC 1 (CanLII), [2017] 1 SCR 3 (“Ernst”) (Joint BOA, Tab 76).
25
Alliance nationale de l’industrie musicale v. Canadian Radio-television and Telecommunications
Commission, 2021 FC 942 (CanLII) at para. 33 (Joint BOA, Tab 6, pg. 16).
 6

28. In contrast, the office of the PHO, has quasi-legislative powers.26 As such,
immunity in the context of Dr. Henry’s power station is not settled by the Supreme Court
of Canada.

29. Power deals with the legislative sphere and the principles supporting Charter
damages in that context are analogous to the case at hand.

30. In this context, Dr. Henry (as the PHO) is acting like the state, as the delegation of
her final decision-making authority to cabinet is not permitted by sections 30, 31, 32, 54,
56, 57 of the Public Health Act.

31. The language in s.92 of the PHA also suggests immunity from tortious conduct
through the use of the wording “done or omitted”.27 Charter remedies under s. 24(1) do
not follow the ordinary rules of civil liability.28 Unlike a private law claim in tort or
extracontractual responsibility, a s. 24(1) remedy is not automatically contingent on the
existence of a “fault” or other threshold misconduct.29 Instead, it is the interference with
the right itself that forms the basis for a claimant’s cause of action. Accordingly, a s. 24(1)
remedy can be sought by anyone whose rights or freedoms have been infringed or
denied, even when the violation is unintentional or indirect, and even where the state’s
conduct is not tortious.

32. Also, as illustrated in Ingram v Alberta (Chief Medical Officer of Health),30 many of
the decisions of the Alberta Chief Medical Officer of Health (CMOH) - Alberta’s equivalent
of the PHO, were politically motivated as the Court of King’s Bench found that the orders
implemented by CMOH, Dr. Hinshaw, were “made by the cabinet of the government of
Alberta or by committees of cabinet”.31

33. The Defendants here have provided evidence that there was significant
involvement by other branches of the B.C. government in making and developing the
policies relating to Covid-19,32 although the extent of political involvement by the
executive and various committees is not publicly known at this time.

26
As authorized by ss. 30, 31, 32, 54, 56, 57 of the Public Health Act (Joint BOA, Tab 225).
27
92 (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or
maintained against a health officer, a commissioner under Division 1 [Inquiries] or a person acting under the
order or direction of either of these, because of anything done or omitted
(a) in the exercise or intended exercise of a power under this or any other enactment, or
(b) in the performance or intended performance of a duty under this or any other enactment.
28
Power, para. 85.
29
Ward, para. 23.
30
Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453 (“Ingram”) at para. 3.
31
This became evident as in Ingram there was witness testimony, cross-examination, and discovery. None of
which is available in the pre-certification procedure in British Columbia. Point being that we do not know
exactly how Dr. Henry made orders or who had the final say.
32
For example, Heather Brazier, the then Executive Director, Policy and Legislation, at Emergency
Management BC deposed of the existence of a cabinet committee, a deputy ministers committee, and daily
 7

34. If the Crown, in its executive capacity is also behind the impugned orders, by
taking the position that s.92 immunizes Dr. Henry, the executive branch is essentially
immunizing itself from Charter breaches.

Conclusion

35. Power provides much needed commentary and clarification in this neglected area
of doctrinal study, though hard to imagine an area that matters more to ordinary Charter
litigants than remedies.

36. An award of damages against the state for exceeding its legal powers is an
important requirement of the rule of law. Importantly, Power lifts the veil of immunity of
public servants, because if the conduct of public servants related to the preparation of
legislation attracted absolute immunity, it would inevitably risk extending the privilege to
the executive, with far-reaching and unforeseeable consequences.33

37. Perhaps it was the rendering of the Power decision on July 19, 2024 that hastened
Dr. Henry’s long overdue declaration that the Covid-19 public health emergency was over
as of July 25, 2024.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Date: August 30, 2024

_____________________________
Polina H. Furtula,
Counsel for the plaintiff

Covid-19 briefing meetings that were generally attended by Deputy Ministers, including the Deputy Minister of
Health, and the PHO, Dr. Henry, who would provide an update on the current state of COVID-19 and the
epidemiological situation in British Columbia (AR, Tab 43 Affidavit #1 of H. Brazier, para. 13).
33
Power, para. 117, see also para. 77.