Alberta lawyer says suing province over COVID could be difficult

CALGARY – With COVID-related public health measures like testing, contact tracing, and mandatory isolation going away by mid-august, some are wondering if they can hold the province legally accountable in the event they get sick.

Mathew Farrell is a barrister and solicitor with Guardian Law Group, he says if you’re considering suing the province for getting you sick, you may want to think long and hard about pursuing a lawsuit.

“Anybody can sue anybody for anything,” Farrell said.

“You never know, but it would be challenging.”

Farrell says it’s not as simple as suing an individual or a business.

“You’d have a better chance against an individual than you would against the province,” Farrell said.

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“The problem with suing the province—in this sort of situation—is this rule, The Policy/Operational Distriction. If you sue the government for negligence in respect of a policy decision, then that’s kind of a no-go. You can sue them for being negligent in the operationalization of that policy decision, but that’s a little bit different.”

Farrell says in this case, it’s unclear as to whether or not the Alberta government’s actions fall under policy decision or the operationalization of a policy decision—but there are arguments to be made for the former—and that would be a problem for any individuals attempting to take legal action against the province.

“Beyond the laws that are passed through the legislature, the government is also responsible to people in a more general sense, under what they call common law,” Farrell said.

“They do have certain obligations there, but once again, there are limits to those obligations.”

If the government fails in implementing a law or policy decision, then it can be held liable, but as for the decision itself, Farrell says governments are allowed to make mistakes.

“Governments have to make decisions all the time, and balance competing interests,” Farrell said.

“Sometimes they get it wrong. Just because the government has made a policy decision you don’t like, you can’t sue them for that, even if it turns out that you’re right and they’re wrong.”

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When it comes to putting these decisions into action, Farrell says that’s a different story and you can sue the province for that. He also says it’s legally unclear whether or not the province has a Duty-of-Care to any specific individual, in the same way, that the government has a general legal responsibility to Albertans at large.

There’s also the question of whether or not the federal government could take any action in response to Alberta’s lifting of public health measures.

Canada’s Constitution says much of the jurisdiction on healthcare rests with the provinces, but Farrell says the federal government does have the power to intervene, because of the Canada Health Act.

“If things were at risk of getting out of control, then the federal government might step in,” Farrell said.

“But, that would be something that nobody knows the answer to because it would depend on the judge and the decision. That’s a matter that’s open for debate”