Alberta Families Claim Previous Masking Mandate Failed to Protect Children, Request Court Review | The Canadian News

A trio of families are taking the Alberta government to court over the Chief Medical Officer of Health (CMOH) decision not to require masks for children in schools, according to court records obtained by Global News.

The judicial review request filed Wednesday afternoon alleges that Dr. Deena Hinshaw’s Sept. 3 decision declaring a mask mandate for all indoor settings except schools violates Children’s Charter right to equal protection and highlights school children from a provincial mask. The mandate is cruel and unusual treatment. The court filing also claims that Hinshaw’s decision was “unreasonable, unfair, and / or made in bad faith.”

The court filings allege improper delegation of decision-making by Dr. Hinshaw when she said she delegated her public health authority to her agent, but did not say who she was. The lawyer representing the families said there is no indication in the Public Health Law that the CMOH can delegate such powers.

The courts have yet to hear the request.

In an emailed statement, an Alberta Health spokesperson said it could not comment on any court proceedings.

“Our priority is always to protect the health and well-being of Albertans,” said Tom McMillan. “This includes the recognition and respect of the constituent rights of all Albertans.”

Attorney Orlagh O’Kelly said her clients hope that the judicial review of the mask’s mandate in early September will recognize charter rights in the context of the pandemic.

“The main issue here is that we want to make sure that the rights of children and children with disabilities are considered and that there is a legal obligation to do so regardless of the nature of the emergency,” O’Kelly told Global News.

“And we believe that all the evidence in the record that existed before Dr. Hinshaw actually supported that legally the best route is to recognize those rights of children and children with disabilities.”

The lack of clear reasoning for excluding schools from the early September mask mandate is part of the argument, according to O’Kelly.

“All government and state action is subject to judicial supervision and must be justified under the principles of administrative law in the eyes of the person affected by it,” O’Kelly, who represents the families, told Global News.

“So in this case, we have those three applicants named individually, as pseudonyms, who need to understand why children have been exempted from this masking order that they go to school, as opposed to any other public place.”

The legal challenge refers to section 15 of the Charter of Rights and Freedoms, which says that everyone is entitled to equal protection and benefit of the law, regardless of age, race or ability.

“When you look a little closer, (the September 3 mask mandate) can have a devastating impact on children with disabilities in particular,” O’Kelly said.

The stories of the three families described in court documents establish how the mask’s mandate in early September affected them in different ways.

One of the parents of five immunosuppressed children has a nine-year-old boy with a neuromuscular disorder and a feeding tube. That boy attends a rural school to learn in class this year because the father has to have two jobs.

The superintendent told them they would only follow CMOH’s advice, according to court documents. The submissions allege that parents did not understand why schools were exempt from masking on September 3 and have no visibility on COVID-19 at school, because it refuses to report positive cases to parents or students.

O’Kelly said the student was entering fourth grade with the understanding that the COVID-19 measurements would be similar to last year. A return to school without a mask mandate left the family “very little” time to plan, he said.

“For a kid like that, to be effectively excluded from the class, in the classroom, but he can’t interact with his teachers and only a couple of students will come to see them, so it was pretty heartbreaking for kids like that,” O’Kelly said. “And there are many others like him or her who are in that situation.”

Another parent in a rural school district whose partner teaches a high school and the boy attends says the school board trustees decided against a mask mandate, according to CMOH’s Sept. 3 decision. Court documents say the boy and his partner “are forced to choose between a risk to their health and their education” because they fear a backlash for wearing a mask.

The third parent whose son began attending an urban school in late August tested positive for COVID-19 on September 3, according to court documents. Both parents in the family have been vaccinated twice and are “careful with their children,” but a second child tested positive for the coronavirus. A mask mandate was imposed at that school on September 2, when the first child was already isolated with symptoms, according to court documents.

The documented severity of the Delta variant in children and its highly communicable nature are important reasons for a mask mandate in schools, according to court documents.

On Wednesday, the province announced a mask mandate for students in fourth grade and up and for all staff and teachers.

O’Kelly said the new masks mandate addresses some of what families were looking for in court, but added a court declaration of children’s rights and said whether or not the previous mandate was unreasonable or not necessary.

The attorney said the ongoing pandemic will likely require CMOH to make more decisions that affect Albertans.

“This is going to happen again, unfortunately there doesn’t seem to be an end in sight,” O’Kelly said. “A declaratory relief from the court is binding on all and, therefore, it is hoped that it will direct future actions for them to consider and reasonably consider and consider constitutionally the rights of children and children with disabilities.”

The Alberta Activists Collective is also part of the app, representing the interests of all Albertans.