Plaintiff's Submissions on BCCA Decisions
Plaintiff's Submissions on BCCA Decisions
BARRISTERS & SOLICITORS
2200 - 1177 West Hastings Street
Vancouver, BC V6E 2K3
Tel: 604-718-6886 l Fax: 604-629-1882
POLINA H. FURTULA* Office: 604-718-6886
Mobile: 604-353-7243
phf@[Link]
[Link]
OUR FILE: 240005
VIA EMAIL (sc.civil_va@[Link])
February 21, 2025
Manager Supreme Court Scheduling
800 Smithe Street
Vancouver, BC V6Z 2E1
Dear Sir/Madam,
Re: Canadian Society for the Advancement of Science in Public Policy v.
His Majesty the King in Right of the Province of British Columbia et al, SCBC
Vancouver Registry File No. S210831
I am counsel to the plaintiff in the above noted matter.
Further to the January 29, 2025 memorandum to counsel from Justice Crerar please find attached the
plaintiff’s submissions regarding Kassian v. British Columbia, 2025 BCCA 20 and Warner v. British
Columbia (Provincial Health Officer), 2025 BCCA 21.
Please direct this letter and enclosures to Justice Crerar.
Thank you for your assistance.
Yours truly,
WESTPOINT LAW GROUP
Per:
POLINA H. FURTULA
Cc: opposing counsel: Chantelle Rajotte, Emily Lapper, Trevor Bant
*Denotes law corporation
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 BCCA Decisions
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
1. On October 4-6, 2023, the Court of Appeal heard appeals from three separate
judicial review proceedings1 challenging the constitutionality of orders of the Provincial
Health Officer (“PHO”) that restricted activities of unvaccinated persons, all of which were
brought pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
2. On January 29, 2025, the Court of Appeal issued its decisions in Warner v. British
Columbia (Provincial Health Officer), 2025 BCCA 21 (“Warner”) and Kassian v. British
Columbia, 2025 BCCA 20 (“Kassian”).
3. The deadline to seek leave to appeal to the Supreme Court of Canada is on March
31, 2025.
4. The impact of administrative decisions on this proposed class action has already
been addressed several times by both sides. The plaintiff reiterates its arguments with
respect to the different legal principles and evidentiary records relating to actions and
petitions with respect to Warner and Kassian. 2
5. Of consequence is the finding by the Court of Appeal in Kassian that the orders of
the PHO constitute laws for the purposes of a Charter analysis:
[66] I am satisfied that the orders and forms constitute “law” for the purposes of
the Canadian Charter of Rights and Freedoms, particularly given the broad
interpretation of that concept set out in Greater Vancouver Transportation Authority
v. Canadian Federation of Students — British Columbia Component, 2009 SCC
31. If the form’s requirements prevented Ms. Kassian and Ms. Shier from being
eligible for exemptions from the vaccine passport regime, then they have a right to
challenge the constitutionality of the scheme.
6. However, in Kassian, the Court found that the judicial review applications of two
petitioners (Ms. Kassian and Ms. Shier) were premature 3 and declined to embark on the
complex constitutional analysis with respect to the third petitioner (Ms. Rooke). 4
7. This confirms the plaintiff’s earlier submissions that the orders issued by Dr. Henry
under the PHA are properly considered laws of general application to all British
Columbians. Accordingly, no deference is owed to Dr. Henry in determining the
constitutionality of her orders. 5
1
One of which was dismissed as moot: Maddock v. British Columbia, 2022 BCSC 1605 (appeal dismissed as
moot, 2023 BCCA 383).
2
The plaintiff reiterates its arguments with respect to the impact of other proceedings in British Columbia and
other provinces challenging the constitutional validity of some of the same or similar orders in the Plaintiff’s
Written Submissions [para. 239 and 241, page 064, Tab 52 of April 24, 2023 Application Record] and paras.
42-48 of the Supplemental Submissions of the Plaintiff, dated September 15, 2023 at paras. 36 to 41. See
also June 7, 2024 Supplemental Submissions of the Plaintiff Re Hoogerbrug Decision at paras. 8 – 10.
3
Para. 86 of Kassian.
4
Para. 88 of Kassian.
5
See para. 120 of the Plaintiff’s Written Submissions [Tab 52, page 033, of the April 24, 2023 Application
Record]
3
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Date: February 21, 2025
_____________________________
Polina H. Furtula,
Counsel for the plaintiff
