Alberta
Class Action Lawsuit Against the Province of Alberta – Rath on Behalf of Ingram and Scott
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To preface, the amount of knowledge I have in our legal system would fit into a thimble with a lot of room leftover to hold, well…a lot of other stuff that would fit into a thimble.
But I’m going to do my best to cover the certification hearing for the Class Action Lawsuit against the Province of Alberta by Rath and Company, on behalf of Rebecca Ingram and Chris Scott.
For the purposes of keeping this to a reasonable length, I’ll be hitting more along the lines of the high-notes instead of going through and summarizing the thousands of pages submitted by Rath and Co + the Province and keep to what I found most interesting throughout the 2 days I’d spent down at the courthouse viewing. The hearing was to allow both sides to submit their briefs and so that Justice Feasby could make sure that he understood the base of their cases, qualify information and take it away for judgement.
Even if Rath is successful in having this Class Action Certified, there is still a long road ahead to succeed in getting damages covered and a trial to be had and because of the specifics of the mishandling by the Province throughout the pandemic, if they are successful here, it doesn’t mean that every other province can proceed ahead, under the same criteria.
What does this mean?
The previous case against the Province with Rebecca Ingram, showed that the non-pharmaceutical interventions – lockdowns, businesses closed, capacity limits…were ruled Ultra Vires (beyond legal power or authority), by Justice Romaine…in that, these weren’t actually made by the Chief Medical Officer of Health (CMOH), Deena Hinshaw, they were made by Cabinet…and Cabinet hid behind Hinshaw issuing these orders under the Public Health Act instead of working with the Emergency Management Act.
Because of “Cabinet Privilege”, information was revealed by the CMOH and Justice Romaine – in camera (private) – we can only speculate the reasons for this.
One could argue that because the province and Alberta Health Services got 100% of everything wrong during the pandemic, that this was just another link in the very weak chain…
However, it’s also possible that the Cabinet Members making these decisions wanted to hide and remain hidden for political purposes, as in…those making the decisions to close down businesses didn’t want to have to face voters in a subsequent election, knowing the damages that they’d caused in the business community.
Seeing how many small businesses were closed down, to never reopen…savings spent, jobs and homes lost, lives impacted by these decisions, arguably touching every single person in the province, would make for some bad press and a constituencies filled with voters showing up with a chip on their shoulder towards those who made these decisions and still chose to run for Legislature again.
In addition to this…If the orders were run through the Emergency Management Act, all of the businesses impacted would be entitled to compensation, whereas under the Public Healthcare Act…they weren’t.
It’s based on these specificities that Rath argued that the Province acted in ‘Bad Faith’ as the basis for their case, in that, the province made decisions that they didn’t have the authority to make and absolutely had to have known would harm businesses and made them through the PHA which restricted these businesses from being compensated.
Rath had completed his presentation of their brief before lunch on the first day, where Feasby had a couple of points that he wanted clarified…which was completed after lunch on this same day.
And then…the Province took the podium.
As I’d previously stated, this was a bloodbath for the afternoon of Day 1 and continued on throughout their presentation on Day 2, where by Feasby openly mocked each member of the Province – Dube, Chu and Flanders.
Rightfully so, if I might add, because a lot of their logic was illogical and even to those of us in the gallery, laughable both with and without comments from the Justice.
On day 2, because of the chorus of opened mouthed guffaw from the gallery, we’d all received a warning try and keep it down.
Arguments made by the province which were stunning and laughable:
- The public does have a right to accountability and that these would be ‘Ballot Box Issues’, of course recognizing that Cabinet was the ones who made these decisions but because they were hidden behind Cabinet Confidence, we can’t actually have accountability, which of course Dube knew;
- The Plaintiffs (Rath on behalf of Ingram and Scott) needed to name the members responsible – which were, again, hidden by cabinet confidence;
- There is no fiduciary accountability afforded under the Public Health Act, where the interventions were deemed Ultra Vires;
- The Province couldn’t have known that businesses would be harmed by the orders – where Feasby stated that it would be impossible for them to Not Know;
- Businesses are not members of a vulnerable group – though were identified by the CMOH orders;
- There is no Nexus or Proximity between the Acts (CMOH orders) and Injury – where Feasby stated causation where orders made, closed businesses, that caused injury was the connection;
- A breach of the Bill of Rights does not necessitate compensation, where the use of the Public Health Act was engaged illegally by cabinet;
- No common issues exist – where all businesses that were impacted were impacted financially;
- Not all businesses that were impacted abided by the CMOH orders, though they may be able to still show financial losses during these times;
- Abuse of Power, by Cabinet in their orders, wasn’t actually an Abuse of Power because it was done in good faith;
- Even without the orders, during the pandemic, people still wanted to just stay home and avoid going out – they actually said this;
- Although the Pandemic Orders were deemed Ultra Vires, they were valid at the time. This was particularly stupid as an argument made repeatedly by Chu and lost the province some large points with Feasby. Her logic is that the orders WERE Valid up until the time they were deemed Ultra Vires…where Feasby stated, a definitive ‘Nope’. Once they were deemed Ultra Vires, this extended back to when they were put in place.
- The Plaintiffs should be suing Alberta Health Services, arguing that AHS is not the province, again another stupid point where the judge stated, “You can’t stand here with a straight face and make this as an argument”.
- Expropriation of businesses wasn’t actually expropriation (businesses shut down or limited in capacity were essentially expropriated – partially or fully taken away from leaseholders and property owners), because there were no transfer of titles and they weren’t kept by the province on a forever hold. When I’d asked Eva Chipiuk about this, she stated that the province had effectively made this up as terms of expropriation, this isn’t what it actually means…and this was clarified to the Justice by Jeff on reply following the Province stating their case on Day 2.
- Classes of businesses could not be identified for a Class Action Lawsuit – where, orders put out by the CMOH on behalf of Cabinet, specifically identified the types of businesses that would need to close or limit capacity. Jeff made a point on this where in the early stages, Casinos and Stripper Bars were allowed to be left open while Schools were closed. I did get a good laugh out of this recollection of events;
- It would be more beneficial for businesses who were harmed to represent themselves individually instead of through a Class Action – where smaller businesses would pay in excess of their claim in legal fees and clog the courts for decades;
- Businesses that lost money throughout this time would have immediately made it back once they were reopened – of which there is absolutely no way they could make this determination especially given the fact that hundreds of businesses closed forever during this time;
- Chris Scott and the Whistle Stop Cafe isn’t a suitable representation in the class action because Scott didn’t abide by CMOH orders, crowd funded over $100k, needed to hire more staff because of the surge of business that he’d received because of publicity around his location, paid off a loan for property, all in 2021…where, Chris did actually abide by CMOH orders in 2020, did lose money, was on the verge of bankruptcy and only worked to mitigate damages following several months of losses due to the CMOH orders;
- Chris Scott may have actually made more because of the pandemic, despite the fact that he was arrested, closed down, abided by CMOH orders in 2020, was getting death threats because of being branded negatively through media spun by his lack of compliance for the orders to keep him from losing everything;
There may be more…this is what I could get out of the 36 pages of notes that I’d taken over the course of the 2 days…but basically the Province brought in the C-Team of Lawyers making in attempts to make the case that:
AHS is not the province, acted illegally but in good faith, is not responsible for any damages because they didn’t fully expropriate businesses forever, couldn’t have known that businesses wouldn’t suffer from financial losses in being closed or restricted for months on end and even if they did, probably made their money back if not more money when they finally opened and couldn’t be lumped together because REASONS.
Whereas against the province, Rath and Company makes the claim that:
Cabinet made decisions that turned into illegal orders under the Public Healthcare Act, not using the Emergency Management Act so that they could hide the identity of the decision makers and skate on being financially liable for losses they knew would be incurred by businesses that were shut – acting in bad faith.
And again…while I don’t know a whole lot about the legal system, all of the laws and terms used throughout these 2 days, can appreciate that all requirements for a Class Action were met and responded to. The legality and relevance of these will be weighed by Justice Feasby and he’d seemed confident that he’ll be able to have a ruling on the Certification for Class Action by December 1st, 2024…and closed out with a statement that he wasn’t going to be accepting any additional documentation from either party. They’d effectively had their ‘day in court’, and had opportunity to clarify their cases.
Hope ya made it through all of this…and I hope it makes as much sense to you as does to me as in a solid – kinda. If you were watching the livestream or in the gallery and noted anything additional worthy of mention or correct me in any errors, please do so in the comments.
I’m looking forward to the next leg in this journey!
From Resource Now
Alberta renews call for West Coast oil pipeline amid shifting federal, geopolitical dynamics.
Just six months ago, talk of resurrecting some version of the Northern Gateway pipeline would have been unthinkable. But with the election of Donald Trump in the U.S. and Mark Carney in Canada, it’s now thinkable.
In fact, Alberta Premier Danielle Smith seems to be making Northern Gateway 2.0 a top priority and a condition for Alberta staying within the Canadian confederation and supporting Mark Carney’s vision of making Canada an Energy superpower. Thanks to Donald Trump threatening Canadian sovereignty and its economy, there has been a noticeable zeitgeist shift in Canada. There is growing support for the idea of leveraging Canada’s natural resources and diversifying export markets to make it less vulnerable to an unpredictable southern neighbour.
“I think the world has changed dramatically since Donald Trump got elected in November,” Smith said at a keynote address Wednesday at the Global Energy Show Canada in Calgary. “I think that’s changed the national conversation.” Smith said she has been encouraged by the tack Carney has taken since being elected Prime Minister, and hopes to see real action from Ottawa in the coming months to address what Smith said is serious encumbrances to Alberta’s oil sector, including Bill C-69, an oil and gas emissions cap and a West Coast tanker oil ban. “I’m going to give him some time to work with us and I’m going to be optimistic,” Smith said. Removing the West Coast moratorium on oil tankers would be the first step needed to building a new oil pipeline line from Alberta to Prince Rupert. “We cannot build a pipeline to the west coast if there is a tanker ban,” Smith said. The next step would be getting First Nations on board. “Indigenous peoples have been shut out of the energy economy for generations, and we are now putting them at the heart of it,” Smith said.
Alberta currently produces about 4.3 million barrels of oil per day. Had the Northern Gateway, Keystone XL and Energy East pipelines been built, Alberta could now be producing and exporting an additional 2.5 million barrels of oil per day. The original Northern Gateway Pipeline — killed outright by the Justin Trudeau government — would have terminated in Kitimat. Smith is now talking about a pipeline that would terminate in Prince Rupert. This may obviate some of the concerns that Kitimat posed with oil tankers negotiating Douglas Channel, and their potential impacts on the marine environment.
One of the biggest hurdles to a pipeline to Prince Rupert may be B.C. Premier David Eby. The B.C. NDP government has a history of opposing oil pipelines with tooth and nail. Asked in a fireside chat by Peter Mansbridge how she would get around the B.C. problem, Smith confidently said: “I’ll convince David Eby.”
“I’m sensitive to the issues that were raised before,” she added. One of those concerns was emissions. But the Alberta government and oil industry has struck a grand bargain with Ottawa: pipelines for emissions abatement through carbon capture and storage.
The industry and government propose multi-billion investments in CCUS. The Pathways Alliance project alone represents an investment of $10 to $20 billion. Smith noted that there is no economic value in pumping CO2 underground. It only becomes economically viable if the tradeoff is greater production and export capacity for Alberta oil. “If you couple it with a million-barrel-per-day pipeline, well that allows you $20 billion worth of revenue year after year,” she said. “All of a sudden a $20 billion cost to have to decarbonize, it looks a lot more attractive when you have a new source of revenue.” When asked about the Prince Rupert pipeline proposal, Eby has responded that there is currently no proponent, and that it is therefore a bridge to cross when there is actually a proposal. “I think what I’ve heard Premier Eby say is that there is no project and no proponent,” Smith said. “Well, that’s my job. There will be soon. “We’re working very hard on being able to get industry players to realize this time may be different.” “We’re working on getting a proponent and route.”
At a number of sessions during the conference, Mansbridge has repeatedly asked speakers about the Alberta secession movement, and whether it might scare off investment capital. Alberta has been using the threat of secession as a threat if Ottawa does not address some of the province’s long-standing grievances. Smith said she hopes Carney takes it seriously. “I hope the prime minister doesn’t want to test it,” Smith said during a scrum with reporters. “I take it seriously. I have never seen separatist sentiment be as high as it is now. “I’ve also seen it dissipate when Ottawa addresses the concerns Alberta has.” She added that, if Carney wants a true nation-building project to fast-track, she can’t think of a better one than a new West Coast pipeline. “I can’t imagine that there will be another project on the national list that will generate as much revenue, as much GDP, as many high paying jobs as a bitumen pipeline to the coast.”
Alberta
Alberta Premier Danielle Smith Discusses Moving Energy Forward at the Global Energy Show in Calgary
From Energy Now
At the energy conference in Calgary, Alberta Premier Danielle Smith pressed the case for building infrastructure to move provincial products to international markets, via a transportation and energy corridor to British Columbia.
“The anchor tenant for this corridor must be a 42-inch pipeline, moving one million incremental barrels of oil to those global markets. And we can’t stop there,” she told the audience.
The premier reiterated her support for new pipelines north to Grays Bay in Nunavut, east to Churchill, Man., and potentially a new version of Energy East.
The discussion comes as Prime Minister Mark Carney and his government are assembling a list of major projects of national interest to fast-track for approval.
Carney has also pledged to establish a major project review office that would issue decisions within two years, instead of five.
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