'Unreasonable' order lifting Alberta school mask mandate made by politicians not Hinshaw: judge

An Alberta judge has ruled that while the February order lifting the masking in school requirements was issued by the chief medical officer of health, Dr. Deena Hinshaw, it 'merely implemented a decision of a committee of cabinet.'  (Jason Franson/The Canadian Press - image credit)
An Alberta judge has ruled that while the February order lifting the masking in school requirements was issued by the chief medical officer of health, Dr. Deena Hinshaw, it 'merely implemented a decision of a committee of cabinet.' (Jason Franson/The Canadian Press - image credit)

An Alberta judge has ruled the February order lifting the requirement for schoolchildren to mask was "unreasonable" because it was ultimately made by cabinet and not the chief medical officer of health (CMOH), which is a breach of the Public Health Act.

The families of five immunocompromised children as well as the Alberta Federation of Labour (AFL) sought a review of the Feb. 8 decision to lift school mask mandates, which was made during a cabinet meeting.

Court of King's Bench Justice Grant Dunlop agreed with the applicants that he should issue a declaration "for the benefit of the chief medical officer of health and other medical officers of health in considering future public health orders."

"The order was unreasonable because it was based on an interpretation of the Public Health Act as giving final authority over public health orders to elected officials," Dunlop wrote in the decision.

LaGrange caused 'widespread misunderstanding'

The judge also found a statement by Education Minister Adriana LaGrange did not prohibit school boards from imposing their own mask rules, which caused "widespread misunderstanding of the legal effect" of her words.

"While Minister LaGrange's statement on its face appears to prohibit school boards from imposing mask mandates, it does not do so, because the minister can only do that through a regulation, and the statement was not a regulation," wrote Dunlop in his 28-page decision issued Thursday.

Scott Neufeld/CBC
Scott Neufeld/CBC

Dr. Deena Hinshaw, Alberta's chief medical officer of health, presented a range of options to cabinet as the number of infections was falling.

The application argued the abrupt end of the masking mandate infringed on the charter rights of immunocompromised children, who were forced to choose between their education and their health.

The children at the centre of this court case suffered segregation, alienation and bullying as a result of having to stay home from school or, in other cases, because they were the only ones at their schools who wore masks, argued the applicants' lawyers.

But Dunlop stopped short of finding the children's charter rights were breached.

Instead, he issued a "declaration" that the CMOH order "is unreasonable and that Minister LaGrange's statement did not prohibit school boards from imposing mask mandates."

The judge ruled he did not have evidence before him that proved the children at the centre of the application are at increased risk if they contract COVID.

"From the legal standpoint, we're disappointed by that and I think our families are struggling with it," said Sharon Roberts who, alongside Orlagh O'Kelly, represented the applicants.

Nevertheless, Roberts sees Thursday's decision as a win for students and teachers in the case.

Lawyers argued decision tied to protests

In August, Roberts and O'Kelly argued Hinshaw abdicated her authority to cabinet and failed to meet her obligation to protect medically vulnerable schoolchildren.

They said the decision to remove mask mandates in Alberta schools was not consistent with public health advice and instead was made by government officials for political reasons, including "quelling protests" that were taking place at the Coutts border crossing.

But lawyers for the Alberta government argued the order was made "in good faith, using best judgment based on information available at the time," said Gary Zimmermann.

Zimmermann said students and their parents were allowed to make their own decisions regarding mask use.

AFL 'very pleased'

The AFL says it plans to send the ruling to every school board in the province and will remind them they have the right to set masking rules based on local conditions.

"We're very pleased that the court basically upheld our arguments," said AFL president Gil McGowan at a press conference following the ruling Thursday.

McGowan said the labour movement joined the case because of the workplace health and safety issues of teachers.

He said the public health decision to remove the school mask mandate was overly politicized rather and did not prioritize the interest of workers and vulnerable students.