Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs challenged the federal government’s COVID-19 response, alleging a breach of section 7 of the Canadian Charter of Rights and Freedoms.

• The claim was struck for failing to disclose a reasonable cause of action and for not being justiciable.

• Plaintiffs argued that government actions were arbitrary, overly broad, and grossly disproportionate, but failed to plead sufficient material facts.

• The court found no legal basis for a Charter remedy based on the statutes cited by the plaintiffs.

• The proposed class action sought damages and declarations but was dismissed at the motion stage.

• No costs or damages were awarded, as per the rules governing proposed class actions.

Facts and outcome of the case

Background and parties

This case involved Richard Michael Perron, Van Suu Trang, and the Estate of Natale Bozzo as plaintiffs, bringing a proposed class action against His Majesty the King, representing the Government of Canada. The plaintiffs sought to represent all Canadian residents who contracted COVID-19 between January 27, 2020, and November 17, 2021, and who suffered serious outcomes, including death, hospitalization, or prolonged illness.

Allegations and legal claims

The plaintiffs alleged that the federal government failed in its response to the COVID-19 pandemic. They claimed the government did not follow its own pandemic plan, mishandled personal protective equipment supplies, gave inconsistent advice on masking, failed to implement effective border controls, delayed mandatory contact tracing, and was slow in vaccine procurement. The plaintiffs argued that these actions and omissions, collectively termed the “Impugned Conduct,” violated their right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms. They asserted that the government had a positive duty to protect public health under several federal statutes and that its failures were arbitrary, overly broad, and grossly disproportionate.

Procedural history and motion to strike

The plaintiffs’ claim was struck by an Associate Judge on two grounds: it failed to disclose a reasonable cause of action and was not justiciable. The Associate Judge found that the statutes cited did not create a specific duty owed by the government to the plaintiffs, except for general duties under the Department of Health Act, which did not support a Charter remedy in this context. The court also determined that the claim did not sufficiently plead arbitrariness, as required for a section 7 Charter violation, and that the issues raised were not suitable for judicial determination, given their broad and policy-driven nature.

Appeal and court’s analysis

On appeal, the plaintiffs argued that the Associate Judge erred in striking the claim, particularly regarding the sufficiency of the arbitrariness allegation. The court reviewed the pleadings and concluded that the plaintiffs had not alleged that the government’s actions were wholly unrelated to the objectives of protecting public health and preventing the spread of COVID-19. Instead, the claim focused on the alleged ineffectiveness of the government’s measures, which is not enough to establish arbitrariness under section 7. The court also found that the plaintiffs failed to properly appeal findings related to overbreadth and gross disproportionality.

Outcome and disposition

The court dismissed the plaintiffs’ motion, upholding the decision to strike the claim. The defendant, His Majesty the King, prevailed in the proceedings. No costs were awarded, consistent with the rules for proposed class actions, and no damages were granted since the claim was dismissed at the motion stage.