Business owners in Alberta who faced economic losses due to pandemic closures may soon be able to proceed as a class action and sue the provincial government for damages. At the expense of themselves, the taxpayer.
Justice Feasby presided over a class action certification hearing on Oct. 2 and 3, during which the court reviewed whether business owners from across Alberta who were restricted by public health orders during the COVID-19 pandemic should be able to sue the Alberta government as a collective.
The suit was initially filed by Rath & Company in Feb. 2024.
The lawsuit is spearheaded by two primary plaintiffs: Rebecca Ingram, a gym owner, and Christopher Scott, owner of the Whistle Stop Café. Both allege that their businesses suffered substantial losses due to public health orders issued by Alberta’s former Chief Medical Officer of Health, Deena Hinshaw, during the pandemic, before her being removed from her role by Alberta Premier Danielle Smith in 2022.
Despite initially questioning the suitability of Ingram as a lead plaintiff, the Alberta government later conceded that Ingram could serve as a representative plaintiff. However, the government’s legal team was more critical of Scott’s suitability.
Alberta’s lawyers argued that Scott’s actions, including operating his business against public health orders and benefiting from public donations, disqualified him as a class representative because he may not have suffered losses in the same way as other business owners.
They argued that because his personal circumstances did not reflect the broader class, he was unsuitable for the role. However, the plaintiffs’ lawyer contended that the class action could proceed with Ingram as the sole representative plaintiff. The defence disagreed.
If certified, business owners who operated in Alberta between 2020 and 2022 and were impacted by the public health orders may be eligible to join the class action lawsuit. Rath & Company, the law firm representing the plaintiffs, said that the legal foundation for the case is derived from the Ingram decision, which determined that the rules were outside of the law regarding the Public Health Act.
The certification process for a class action involves a five-part test. The court must determine whether the claim represents a valid cause of action, identifies an appropriate class of persons, presents common issues of fact or law, demonstrates that a class action is a preferable procedure, and shows that the proposed representative plaintiffs are suitable to advance the case on behalf of the class.
This test also requires the court to assess whether the plaintiffs’ claims are strong enough to be pursued on behalf of all affected business owners.
Much of the two-day hearing focused on whether these five criteria were met.
The plaintiffs’ legal team asserted that the public health orders exceeded the government’s legal authority, seeking compensation for economic losses suffered by businesses that were forced to close or restrict their operations. They emphasized that a class action was the most efficient way to handle the claims, as it would prevent the need for thousands of individual lawsuits.
In defence, Alberta’s legal team maintained that the restrictions were implemented in good faith based on the best available science at the time. They also pointed out that Alberta Health Services, not the provincial government, was responsible for enforcing the orders.
Additionally, they argued that the diversity of businesses involved—ranging from small to large—would require highly individualized assessments of damages, making a class action inefficient and inappropriate.
The proceedings were open to the public, with around 20 to 30 people attending online and a small group present in the courtroom.
If Feasby certifies the class action, business owners who suffered under the COVID-19 restrictions will automatically be included unless they choose to opt-out and pursue legal action on their own.
Whether the class is certified or not, if any plaintiffs are awarded damages, the money will come from all taxpayers in the province, including the plaintiffs themselves.
Feasby concluded the hearing by saying that he felt the case was argued very well by both sides. He added that there were many documents to sort through, and it would not be a simple process. He hoped to have a decision ready by Dec. 1.
