Associate Chief Justice Amends Province-Wide COVID-19 Injunction Order

• Published date: 20 May 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Government Measures, Operational Impacts and Strategy
• Law Firm: Blake, Cassels & Graydon LLP
• Author: Mr Dalton McGrath, Q.C. and Michael O'Brien

On May 6, 2021, the Associate Chief Justice of Alberta (ACJ) issued an ex parte (without notice to any adverse party) injunction Order (Ex Parte Order) relating to the enforcement of COVID-19 restrictions. In a further return application heard on notice conducted May 13, 2021, the Ex Parte Order was upheld, but with important amendments as described below.

The Ex Parte Order arose from Alberta Health Services (AHS) attempting to enforce a series of orders issued by Alberta's Chief Medical Officer of Health (CMOH Orders) against certain individuals and businesses.

Specifically, it was alleged that a business, operating as the Whistle Stop Café in Mirror, Alberta, had ignored multiple attempts by AHS to enforce CMOH Orders and had otherwise engaged in promoting large-scale protests against COVID-19 restrictions. In addition, it was alleged that AHS also became aware of an additional large-scale event that claimed to be promoting a similar protest against COVID-19 restrictions near Innisfail, Alberta (collectively, the Whistle Stop and Innisfail Activities). AHS presented evidence that those past and threatened events were being undertaken in defiance of the existing CMOH Orders.

AHS sought court assistance to enforce the existing and any future CMOH Orders claimed to be based upon the court's general jurisdiction under the Alberta Judicature Act, the ability to grant an enforcement Order under section 66.2 of the Alberta Public Health Act (Act) and the ability under the common law to grant a quia timet injunction to prevent imminent harm from occurring.

Specifically, AHS sought injunctive relief to enjoin the organizing, promoting or attending of any "Illegal Public Gathering", being any "public place" or "private space" as defined in the Act which did not comply with the requirements of any current CMOH Orders including those related to masking requirements, social distancing and attendance limits.

The Ex Parte Order restrained not only the named individual Respondents, but any other person acting under their instructions or in concert with them. More importantly, it restrained persons who were acting "independently to like effect". Those additional words significantly broadened the scope and nature of the Ex Parte Order to include non-parties who were claimed to be engaging in such Illegal Public Gatherings unrelated to the Whistle Stop and Innisfail Activities.

The broad nature of the Ex Parte Order was relied upon by a number of police organizations...