No.

S-2110229
VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER CONCERNING THE JUDICIAL REVIEW PROCEDURE ACT, RSBC 1996, c.
241; AND THE PUBLIC HEALTH ACT, SBC 2008, c. 28

BETWEEN

CANADIAN SOCIETY FOR THE ADVANCEMENT

OF SCIENCE IN PUBLIC POLICY AND
KIPLING WARNER

PETITIONERS

AND

DR. BONNIE HENRY IN HER CAPACITY AS PROVINCIAL HEALTH

OFFICER FOR THE PROVINCE OF BRITISH COLUMBIA

RESPONDENT
NOTICE OF APPLICATION

Name of applicant: Dr. Bonnie Henry in Her Capacity as Provincial Health Officer
for the Province of British Columbia (“PHO”).
To: the petitioner, the Canadian Society for the Advancement of Science in Public
Policy (“CSASPP”).
TAKE NOTICE that an application will be made by the applicant to the Honourable
Mr. Justice Coval at the courthouse at 800 Smithe Street, Vancouver, British
Columbia, By MS Teams, on Monday, December 5, 2022 at 9:45, for the orders set
out in Part 1 below.

Part 1: ORDERS SOUGHT

1. An order to strike the following affidavits from the evidentiary record:
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a. Affidavit of Dr. Steven Pelech made November 16, 2022;

b. Affidavit of Ada Skowronska made January 31, 2022;
c. Affidavit of Ada Skowronska made June 23, 2022;
d. Affidavit of Kipling Warner #2 made January 31, 2022;
e. Affidavit of Lilly Leppky made January 30, 2022; and
f. Parts of the Affidavit of Kipling Warner # 3 made November 7, 2022.

2. An order to amend the style of cause to remove Kipling Warner’s name.

Part 2: FACTUAL BASIS

1. The underlying proceeding is a petition for judicial review of certain public
health measures ordered by the PHO under the Public Health Act, S.B.C.
2008, c. 28 with respect to the requirement that persons providing health
care and related services in long-term care facilities, hospitals and
community care settings be vaccinated against SARS-CoV-2, the virus that
causes COVID-19. The impugned orders were made by the PHO in response
to the ongoing COVID-19 pandemic.

2. This application addresses the inadmissibility of some of the affidavit

evidence filed by the petitioner that was not and could not be before the
PHO when she made the impugned orders.

Part 3: LEGAL BASIS

1. Judicial review under the JRPA is review “on the record.” This is the source of
both its substantive legitimacy and its summary procedure. Substantively,
the court is engaged in a process of reviewing the decision of a statutory
decision maker as reasonable, patently unreasonable or correct, based on
the information properly before that decision maker. It is for this reason that
judicial review does not require the processes for determining facts that
come with a civil action – factual findings must already have been made by
the decision maker being reviewed. The court’s role is to determine whether
that process, along with other aspects of the decision, meet the appropriate
standard of review.

The function of a court on judicial review is supervisory. The court

must ensure that a tribunal has operated within legal norms.
Courts are, in a very strict sense, reviewing what went on before
the tribunal. They are not undertaking a fresh examination of the
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substantive issues. For that reason, judicial review normally

concerns itself only with evidence that was before the tribunal. 1

2. In British Columbia, with few exceptions, the evidence on a judicial review

application is confined to the record that was before the decision maker.

Beaudoin v. British Columbia, 2021 BCSC 512 at para. 80

3. With limited and inapplicable exceptions, therefore, in an application for
judicial review, the evidentiary record is confined to the record before the
decision maker. 2
The rule that judicial review is on the record must be understood in a
contemporary and principled way, inclusive of all the material looked at by
the statutory decision maker, regardless of whether that would traditionally
have been understood to be part of the “record.” 3 In Air Canada, the Court of
Appeal explained that viewed in this more contemporary light, what had
sometimes been considered “exceptions” to this principle are in fact
applications of it. 4 The “key question” is whether the evidence sought to be
admitted is consistent with the supervisory role of the court. 5 It would be
inconsistent with the supervisory role of the court to include any
information that was not before the statutory decision maker or could be
presumed by it as the “common understanding of those operating in a
particular field.” 6
Dane Developments Ltd. v. British Columbia (Forests, Lands and Natural
Resources Operations), 2015 BCSC 1663 at para. 46
Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018
BCCA 387, at para. 38
4. The rationale for the general prohibition on extra-record evidence is rooted
in the court’s role on judicial review. The court’s role is supervisory: it must
determine only whether a decision maker acted reasonably and within legal
norms, including Charter compliance. Judicial review is not a fresh
examination on substantive issues and therefore normally concerns itself
only with what evidence was before the tribunal.
Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018
BCCA 387, at paras. 34-39

1
Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCCA 387 [Air
Canada] at para. 34. [Citations omitted]
2
JRPA, s. 1 “record of proceeding”.
3
Air Canada at para. 35.
4
Air Canada at para. 36.
5
Air Canada at para. 39.
6
Air Canada at para. 40.
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Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at

paras. 16-17, 85 and 93
5. In Beaudoin, Chief Justice Hinkson excluded the evidence of Dr. Joel Ketter
and Dr. Thomas Warren because Dr. Henry did not have those reports
available to her when she made the Orders impugned in that proceeding,
and because admitting that evidence would have allowed the petitioners to
“bypass the statutory decision maker and rely upon purportedly expert
evidence, without affording deference to Dr. Henry’s findings on the face of
the record before her.”
Beaudoin, at para. 100
6. Where reports from purported experts were not before the PHO when she
made the impugned Orders, they are not admissible on judicial review of
those Orders.
Beaudoin, supra at para. 118
Le et al. v. British Columbia (Attorney General), B.C.S.C. Docket No. S217361,
February 16, 2022 (Chambers Hearing)

Affidavit of Dr. Steven Pelech made November 16, 2022

7. Dr. Pelech’s affidavit is dated November 16, 2022. The most recent PHO
Order under review is dated September 22, 2022. Dr. Pelech’s affidavit was
not before the PHO in her decision making and therefore is not admissible
on this judicial review.
8. At paragraph 11 of his affidavit, Dr. Pelech explains that he has been asked
to provide his expert opinion on the “validity of the arguments put forth in
the Public Health Orders issued on June 10, 2022 and September 12, 2022 by
Dr. Bonnie Henry, the Provincial Health Officer of B.C.”
9. At paragraph 12, Dr. Pelech specifies that he was asked to answer questions
about:
a. benefits and risks of getting the COVID-19 vaccines;
b. effectiveness of COVID-19 vaccines approved for use in Canada in terms
of transmission, recovery time, severe illness, hospitalization and death;
c. the rate at which the effect of vaccines wane;
d. comparison between infection induced and vaccine induced immunity;
e. methodologies by which reduction in infection and transmission has
been measures in long-term care, assisted care or hospital settings,
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f. risks and side effects of vaccines “including the more serious side effects,
specific risks for working age people, and the concept of cost-benefit for
different age groups”,
g. the rationale, assertions of fact and evidence stated in the Orders; and
h. the rationale, assertions of fact and evidence stated in Dr. Emerson’s
affidavits.
10. The stated scope of Dr. Pelech’s expert opinion affidavit is plainly “…a fresh
examination of the substantive issues”, which is not permitted on judicial
review.
Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018
BCCA 387 at para. 34
11. Dr. Pelech’s opinion also approaches the ultimate issue which the court
must decide on judicial review, namely the reasonableness of the PHO’s
Orders, and is also inadmissible on that ground. Affidavit evidence must not
convert an application for judicial review into a rehearing or
redetermination of the merits.
Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 at paras 16-17
12. The PHO concedes that Schedule 4 and 5 to Dr. Pelech’s affidavit are part of
the record before the PHO in respect of the impugned Orders, but are not
admissible on judicial review for the truth of any opinions they contain.
13. The balance of Dr. Pelech’s affidavit in inadmissible extra-record expert
opinion and should be struck from the evidentiary record.

Affidavits of Ada Skowronska made January 31 and June 23, 2022

14. Ms. Skowronska is not a petitioner nor does she depose that she is a
member of CSASPP (the public interest petitioner).
15. Ms. Skowronska’s affidavits are both extra-record evidence that is
inadmissible on this Petition.
16. Ms. Skowronska’s affidavit #1 primarily concerns her employment between
August and October 2021. Ms. Skowronska resigned ahead of any vaccine
requirement being imposed in August 2021, by her own choice (para. 8).
Her evidence is inadmissible and not useful to the Court given the scope of
judicial review.

Affidavit of Lilly Leppky made January 30, 2022

17. Ms. Leppky is not a petitioner, nor does she depose that she is a member of
CSASPP.
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18. Ms. Leppky asserts that she lost employment due to the COVID-19
vaccination requirements but does not explain how that could be so where
she was apparently privately employed by two sisters (paras. 4, 7 and 8).
Ms. Leppsky also deposes to religious beliefs that prevent her from
becoming vaccinated (paras. 28-38). Ms. Leppky notes that she also cannot
wear masks (para. 14).
19. Ms. Leppky’s affidavit concerns events in December 2020 (para. 13) and
November 2021 (para. 18), as well as medical conditions and religious beliefs
that significantly predate the petition.
20. Ms. Leppky’s affidavit is extra-record and, even if it were admissible, the
evidence it contains is not useful to the court in addressing the application
before it.

Affidavit of Kipling Warner #2 made January 31, 2022

21. Mr. Warner’s affidavit # 2 contains only inadmissible extra-record evidence,

including studies and excerpts from press conferences. Mr. Warner is not a
petitioner in his own right. Based on his affidavit evidence, Mr. Warner is
not a health care worker or otherwise impacted by the impugned Orders.
Mr. Warner says he has been on a surgical waitlist for an unspecified sports
injury but does not explain whether or how the waitlist has been impacted
by the Orders.

Parts of the Affidavit of Kipling Warner # 3

22. Exhibits A, B, D and F of Mr. Warner’s affidavit # 3 should be struck.

23. Exhibits A, B and D to Mr. Warner’s affidavit # 3 are not part of the record
that was before the PHO because they post-date the impugned Orders.
24. Exhibit F is of limited relevance and was considered by Chief Justice Hinkson
Canadian Society for the Advancement of Science in Public Policy v. British
Columbia, 2022 BCSC 1606, at paragraphs 178 and 179 where the court
wrote that there was “…no indicated for the bases for this view, nor a basis
for preferring that view to what I have accepted to be the informed views of
the respondent.” As such, Exhibit F does not meet the test of being useful to
the court such that it should be admitted on judicial review.

Remove Kipling Warner’s name from the style of cause

25. In Reasons for Judgment issued May 4, 2022, at paragraph 68, the
Honourable Mr. Justice Coval decided that Kipling Warner did not satisfy the
requirements for private interest standing.
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26. Given that decision, the PHO seeks an Order removing Kipling Warner’s
name from the style of cause in this petition proceeding.

Part 4: MATERIAL TO BE RELIED ON

1. Materials filed to date in this proceeding.

2. Judicial Review Procedure Act, RSBC 1996, c 241.

The applicants estimate that the application will take 2 hours.

This matter is not within the jurisdiction of a master.

TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond

to the application, you must, within 5 business days after service of this notice of
application or, if this application is brought under Rule 9-7, within 8 business days
after service of this notice of application,
(a) file an application response in Form 33,
(b) file the original of every affidavit, and of every other document, that
(i) you intend to refer to at the hearing of this application, and
(ii) has not already been filed in the proceeding, and
(c) serve on the applicant 2 copies of the following, and on every other
party of record one copy of the following:
(i) a copy of the filed application response;
(ii) a copy of each of the filed affidavits and other documents that you
intend to refer to at the hearing of this application and that has not
already been served on the person,
(iii) if this application is brought under Rule 9-7, any notice that you are
required to give under Rule 9-7 (9).

Date: November 23, 2022 ________________________________

Signatures of Julie K. Gibson,
Gareth Morley and Alexander Bjornson,
Lawyers for the applicant
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To be completed by the court only:

Order made

[ ] in the terms requested in paragraphs ...................... of Part 1 of

this notice of application

[ ] with the following variations and additional terms:

................................................................................................................
................................................................................................................
.................................................................................................................
Date: .......[dd/mmm/yyyy]........ ....................................................

Signature of [ ] Judge [ ] Master

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APPENDIX

THIS APPLICATION INVOLVES THE FOLLOWING:

[] discovery: comply with demand for documents
[] discovery: production of additional documents
[] other matters concerning document discovery
[] extend oral discovery
[] other matter concerning oral discovery
[] amend pleadings
[] add/change parties
[] summary judgment
[] summary trial
[] service
[] mediation
[] adjournments
[] proceedings at trial
[] case plan orders: amend
[x] case plan orders: other
[] experts

This NOTICE OF APPLICATION is prepared by Julie K. Gibson, Barrister & Solicitor, of the
Ministry of Attorney General, whose place of business and address for service is P.O. Box
9280, Stn Prov Govt, 1001 Douglas Street, Victoria, British Columbia, V8W 9J7; Telephone:
778-587-4748; Email Address: Julie.gibson@gov.bc.ca* (*email not for service).