Alberta appeal court tosses COVID-restriction class action, calling it 'bound to fail'

Alberta's Court of Appeal has overturned certification of a class action over pandemic-era restrictions, ruling the suit is "bound to fail."

The 17-page decision came Friday from three appeal judges. The class action was certified in 2024 by Justice Colin Feasby, with Rebecca Ingram, a gym owner, and Christopher Scott, owner of the Whistle Stop Cafe in Mirror, Alta., as representative plaintiffs. Their lawyer, Jeffrey Rath, argued the public health orders were unlawful, which would make Alberta liable for class members' losses.

The panel rejected that on causation. It found the alleged negligent conduct concerns procedure rather than the substance of the chief medical officer of health's orders, and wrote: "If the identical CMOH Orders had been issued by the Chief Medical Officer … there would be no negligent act and no claim." It said "the class action pleadings fail to disclose causation," and that because of that flaw "it is plain and obvious that it is bound to fail."

Scott was charged in January 2021 under the Public Health Act for keeping the Whistle Stop open despite restrictions on large gatherings and in-person dining. His charges were stayed after Justice Barbara Romaine's 2023 ruling in the Ingram case, a decision that found cabinet and committees, not the chief medical officer, held the final power over the restrictions, which breached the Public Health Act. Romaine found the orders otherwise constitutional. Alberta's Crown Prosecution Service said it was reviewing that decision.

Rath said in 2023 he would pursue compensation. The appeal ruling blocks that at certification, and the class action cannot proceed as pleaded.

The charge has not been proven in court.