Citizens Alliance of Nova Scotia v. Nova Scotia (Health and Wellness)

Citizens Alliance of Nova Scotia v. Nova Scotia (Health and Wellness) Court Supreme Court Date 2024-08-28 Citation 2024 NSSC 253 Docket No. 510031 Judge/Registrar/Adjudicator Keith, John A. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Citizens Alliance of Nova Scotia v. Nova Scotia (Health and Wellness), 2024 NSSC 253 Date: 20240828 Docket: No. 510031 Registry: Yarmouth Between: Citizens Alliance of Nova Scotia and J.M., by his Litigation Guardian K.M. Plaintiff v. Robert Strang acting as Chief Medical Officer of Health of Nova Scotia and Michelle Thompson acting as Minister of Health and Wellness of Nova Scotia and the Attorney General of Nova Scotia representing Her Majesty Queen in Right of the Province of Nova Scotia Respondent Decision Judge: The Honourable Justice John A. Keith Heard: January 24, 2024, in Yarmouth, Nova Scotia Final Written Submissions: February 1, 2024 Counsel: William Ray, Lay Person and Board Member, representing the Applicant, Citizens Alliance of Nova Scotia Hugh Robichaud, for the Applicant, J.M., by his Litigation Guardian K.M. Daniel Boyle, for the Respondents By the Court: INTRODUCTION AND ISSUE [1] In late 2019 and early 2020, contaminated particles laden with COVID-19 quickly spread from one human host to the next, setting off a global pandemic. Governments responded with various measures to detect, contain, and suppress the disease. [2] In Nova Scotia, on March 22, 2020: 1. The Minister of Municipal Affairs on behalf of the Province of Nova Scotia declared a state of emergency pursuant to the Emergency Management Act, S.N.S. 1990, c. 8 in response to the COVID-19 pandemic; and 2. Nova Scotia’s Chief Medical Officer of Health, Dr. Robert Strang (the “CMOH”), verbally issued the first Order under s. 32 of the Health Protection Act, SNS 2004, c 4 (the “HPA”) for the stated purpose of decreasing the risk to public health presented by COVID-19. (“Public Health Order #1”) [3] Public Health Order #1 was subsequently “restated” on 5 separate occasions: 1. April 28, 2021 – Restated Order #2 2. October 1, 2021 – Restated Order #3 3. December 15, 2021 – Restated Order #4 4. February 15, 2022 – Restated Order #5 5. March 21, 2022 – Restated Order #6 [4] Between each restatement of the original Public Health Order #1, the CMOH also issued various amendments to the current form of Order, as it existed at the time. The Respondents describe Public Health Order #1, all of the restated Orders and any amendments to these Orders as successive “iterations” of the original. [5] Public Health Order #1 and the subsequent Restated Orders expressly mandated public adherence to various written “protocols” including: 1. COVID-19 Protocol for Proof of Full Vaccination for Events and Activities; and 2. COVID-19 Mandatory Vaccination Protocol in High-Risk Settings. (collectively, the “COVID-19 Protocols”) [6] By Notice for Judicial Review amended August 11, 2023, the co-Applicants Citizens Alliance of Nova Scotia (“CANS”) and J.M. by his litigation guardian K.M.[1] challenged the lawfulness and legitimacy of Restated Order #3 - Restated Order #6 (including any amendments) along with the COVID-19 Protocols referenced therein. I refer to Restated Order #3 – Restated Order #6 and the COVID-19 Protocols as referenced in those Orders collectively as the “Impugned Orders”. [7] The Impugned Orders imposed restrictions around such things as: 1. Entering Nova Scotia; 2. Social gatherings; 3. Engaging with and assisting vulnerable segments of the population (e.g. residents of long-term care facilities); and 4. Operating businesses, organizations, and professions – including hosting what was described as “discretionary, non-essential events and activities”. [8] Requirements around masking and quarantine were part of the restrictions included in the Impugned Orders. However, for present purposes, the focus is on vaccine requirements imposed during that period of time when the Impugned Orders were in effect including when/where persons must be “fully vaccinated”, as that term was defined in s. 2.1 of the COVID-19 Protocol for Proof of Full Vaccination for Events and Activities and Section 2.0 of the COVID-19 Mandatory Vaccination Protocol in High-Risk Settings. See also the definition of “not fully vaccinated” for the purposes of the COVID-19 Mandatory Vaccination Protocol in High-Risk Settings (see definition in s. 2.0). On this issue, a number of related provisions in the Impugned Orders addressed such matters as: 1. Vaccine requirements for operators, employers and employees working in “high-risk settings” as described in sections 2.0, 3.0 and 4.0 of the COVID-19 Mandatory Vaccination Protocol in High-Risk Settings; and 2. Vaccine requirements for various types of events and activities; bearing in mind a distinction made in the Impugned Orders between: a. “Discretionary, non-essential events, activities and services” where proof of full vaccination was required (see s. 3.1 of the COVID-19 Protocol for Proof of Full Vaccination for Events and Activities); b. “Places that don’t host formal gatherings and that offer essential, non-discretionary services and activities” where proof of full vaccination was not required. (see section 3.2 of the COVID-19 Protocol for Proof of Full Vaccination for Events and Activities); 3. Vaccine requirements for children under the age of 18 (see sections 3.1, 3.2, and 3.4 of the COVID-19 Protocol for Proof of Full Vaccination for Events and Activities).[2] [9] The Applicant CANS describes the vaccination requirements in the Impugned Orders as “coercive”, “dictatorial”, or “forced”. (See, for example, Applicants’ Written Submissions at paras. 3, 5, 7, and 13; and Rebuttal Submissions at paras. 4, 5, 6, 15, 33, 36, and 37). [10] CANS’ criticisms become more pointed when discussing the impact of the Impugned Orders on children between the ages of 12 – 16 years. CANS describes the vaccine requirements “effectively mandating the injection of experimental mRNA products” on children. (CANS Rebuttal Submissions at para. 11. Similar criticisms are expressed at paras. 12 – 14 of the same Rebuttal Submissions) [11] The Applicants state the Impugned Orders were unlawful and overstepped statutory authority and related protection under the Canadian Charter of Rights and Freedoms (the “Charter”). In its Amended Notice for Judicial Review, the Applicants seek the following specific remedies: 1. A declaration that the Impugned Orders are ultra vires the Health Protection Act and that the impugned Order and attached protocol was of no legal force and effect ab initio (the “Declaration of Ultra Vires”) 2. A declaration that in issuing the Impugned Orders, the Respondent, Robert Strang, breached a duty of Procedural Fairness and was a violation of the Applicants’ human rights and fundamental freedoms manifested in the Canadian Bill of Rights and values protected by the Charter (the “Declaration of Procedural Unfairness and Charter Breach”) 3. A declaration that the Respondent Robert Strang acting as CMOH breached his duty to the Applicants and to the public to act in good faith, and whereby, the CMOH cannot benefit from immunity under s.12 of the Health Protection Act (the “Declaration of a Breach of Duty of Good Faith”); and 4. An order of Prohibition preventing the Respondents from instituting anything but a voluntary immunization program at any time in the future. (the “Prohibition Against Future Mandated Vaccinations”) [12] The Respondents raised certain preliminary threshold concerns around standing and jurisdiction. In particular, the Respondents: 1. Concede that, collectively or individually, the Applicants’ (CANS and J.M.) specific private interests are engaged, or were affected by, whether the Impugned Orders were ultra vires. Thus, to the extent those specific interests were affected, the Applicants have private standing to pursue the requested Declaration of Ultra Vires. They dispute that CANS should be granted public standing on this issue; 2. Concede that, collectively or individually, the Applicants’ specific private interests are engaged, or were affected by, whether the CMOH breached various duties of procedural fairness and violated the Canadian Bill of Rights and/or protected rights or valued under the Charter when issuing the Impugned Orders. Thus, to the extent those specific interests were affected, the Applicants have private standing as private individuals or organizations to pursue the requested Declaration of Procedural Unfairness and Charter Breach. They dispute that CANS should be granted public standing on this issue; 3. Dispute that either Applicants’ specific private interests are engaged, or were affected by, the allegation that the CMOH breached its duty of good faith to the Applicants or the public. The Respondents argue that there is (and never will be) a sufficient evidentiary record before the Court to adjudicate on this issue. The implication is that neither CANS nor J.M. have reasonable basis as private litigants for seeking a Declaration of a Breach of Duty of Good Faith. For clarity, this is not an issue before me. The issue in this motion is CANS’ request for public interest standing – not whether the allegations of bad faith can be pursued by CANS or J.M. as private litigants; and 4. Dispute that there is any recognized or enforceable legal interest either engage or affected by the request for a Prohibition Against Future Mandated Vaccinations. The Respondents state that the Court lacks the jurisdiction or authority to grant broad, prospective relief prohibiting any future government from “instituting anything but a voluntary immunization program”. [13] CANS does not accept the Respondents limited concessions around private standing. CANS seeks to act on behalf of the broader public interest so that it might engage in a broader and more comprehensive judicial review of the vaccine requirements in the Impugned Orders and their impact on all Nova Scotians (i.e. beyond those specific or private interests unique to either CANS as an organization or to J.M. as a child affected by the Impugned Orders). [14] CANS acknowledges that it must first obtain a Court Order granting it public interest standing before it can presume to represent the public interest. CANS brings this motion for that purpose. [15] J.M. supports CANS’ position but does not seek public interest standing. The Law around Public Interest Standing [16] “Standing” has been defined as “The legal right to initiate a legal proceeding with respect to a specified cause of action. It involves the threshold issue in a legal proceeding of whether the complainant is entitled to have the Court decide the merits of the dispute or of particular issues.” (Kevin P. McGuiness, The Encyclopedic Dictionary of Canadian Law (2021), volume 3, p. S-284) [17] The Court’s jurisdiction to determine a matter is inextricably connected to the concept of standing. Halsbury’s states that “[w]here a complainant lacks standing to bring a proceeding before a court, the court lacks jurisdiction to decide the merits of the underlying case. Thus, standing is a threshold issue that must be determined before the court assumes jurisdiction over a case.” (Halsbury's Laws of Canada (online), Civil Procedure (2021 Reissue), (Markham, Ont.: LexisNexis Canada), at §HCV-40) [18] In the first instance, only those persons (or entities) with a direct and personal interest in the outcome of a justiciable issue are deemed to have the capacity (or “standing”) to bring a related legal proceeding. Thus, a person does not have the right to commence judicial proceedings simply because they believe a legal issue is intriguing, interesting, offensive, or deserving of judicial attention. In addition, the prurient curiosity of a busybody or meddlesome bystander will not support a claim for standing to bring legal proceedings. If an individual’s direct and personal interests are not actually affected by the outcome of a proceeding, that individual cannot claim “standing” to institute an action or application. [19] Matters which engage and affect specific private interests are separate and distinct from matters which engage and affect the interest of the general public. In most cases, the Attorney-General represents the public and defends (or protects) the public interest in legal proceedings. However, there are circumstances in which the Court will grant standing to (or recognize the legal capacity of) private individuals or organizations for the purpose of advancing claims in the public interest. [20] Private individuals or entities cannot presume the inherent right to advance claims on behalf of the public at large. Leave must first be granted by the Court. [21] In Morgentaler v. New Brunwick, 2009 NBCA 26, [2009] NBJ No 139, leave to appeal denied, [2005] SCCA No 155 (“Morgentaler”), the Court confirmed its inherent jurisdiction to grant public interest standing in certain prescribed circumstances (at paras. 49 – 51. See also British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, [2022] SCJ No 27 at para. 78, citing Morgentaler) [22] The primary seminal case for granting public interest standing is Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524. In that case, Justice Cromwell confirmed the discretionary nature of a court’s determination of standing: From the beginning of our modern public interest standing jurisprudence, the question of standing has been viewed as one to be resolved through the wise exercise of judicial discretion. As Laskin J. put it in [Thorson v. Attorney General of Canada, [1975] 1 SCR 138], public interest standing "is a matter particularly appropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process" (p. 161)... The decision to grant or refuse standing involves the careful exercise of judicial discretion through the weighing of the three factors (serious justiciable issue, the nature of the plaintiff's interest, and other reasonable and effective means). Cory J. emphasized this point in [Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236] where he noted that the factors to be considered in exercising this discretion should not be treated as technical requirements and that the principles governing the exercise of this discretion should be interpreted in a liberal and generous manner... (at para. 35) [23] In British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, [2022] SCJ No 27 (“Council of Canadians with Disabilities”), Wagner CJ, for the Court, reviewed the Downtown Eastside framework governing the discretionary decision to grant or deny public interest standing. He repeated that: The decision to grant or deny public interest standing is discretionary... In exercising its discretion, a court must cumulatively assess and weigh three factors purposively and with regard to the circumstances. These factors are: (i) whether the case raises a serious justiciable issue, (ii) whether the party bringing the action has a genuine interest in the matter, and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court... In Downtown Eastside, this Court explained that each factor is to be "weighed ... in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes"... These purposes are threefold: (i) efficiently allocating scarce judicial resources and screening out "busybody" litigants; (ii) ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues; and (iii) ensuring that courts play their proper role within our democratic system of government... Courts must also consider the purposes that justify granting standing in their analyses... These purposes are twofold: (i) giving effect to the principle of legality and (ii) ensuring access to the courts, or more broadly, access to justice... The goal, in every case, is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it... Downtown Eastside remains the governing authority. Courts should strive to balance all of the purposes in light of the circumstances and in the "wise application of judicial discretion"... It follows that they should not, as a general rule, attach "particular weight" to any one purpose, including legality and access to justice. Legality and access to justice are important -- indeed, they played a pivotal role in the development of public interest standing -- but they are two of many concerns that inform the Downtown Eastside analysis. (at paras. 28 – 31, emphasis in decision) [24] In Council of Canadians with Disabilities, Wagner, CJ elaborated upon the dual principles of legality and access to justice which inform the analysis and “are woven throughout the history of public interest standing”. (at para. 33) Legality “encompasses two ideas: (i) state action must conform to the law and (ii) there must be practical and effective ways to challenge the legality of state action”. (at para. 33) Access to justice, in this context, “refers broadly to "access to courts"”. (at para. 35) [25] Bearing these principles in mind, Wagner, CJ broke down specific factors established by the Downtown Eastside framework and provided the following additional guidance. Serious Justiciable Issue [26] Wagner, CJ stated: The first of the Downtown Eastside factors, whether there is a serious justiciable issue, relates to two of the traditional concerns. Justiciability is linked to the concern about the proper role of the courts and their constitutional relationship to the other branches of state. By insisting on the existence of a justiciable issue, the courts ensure that the exercise of their discretion with respect to standing is consistent with their proper constitutional role. Seriousness, by contrast, addresses the concern about the allocation of scarce judicial resources and the need to screen out the "mere busybody". This factor also broadly promotes access to justice by ensuring that judicial resources remain available to those who need them most … A serious issue will arise when the question raised is "far from frivolous"... Courts should assess a claim in a "preliminary manner" to determine whether "some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation"... Once it becomes clear that the statement of claim reveals at least one serious issue, it will usually be unnecessary to minutely examine every pleaded claim to assess standing … To be justiciable, an issue must be one that is appropriate for a court to decide, that is, the court must have the institutional capacity and legitimacy to adjudicate the matter... Public interest standing hinges on the existence of a justiciable question... Unless an issue is justiciable in the sense that it is suitable for judicial determination, it should not be heard and decided no matter who the parties are … (at paras. 48 – 50) Genuine Interest in the Issue [27] As to the element of “genuine interest”, the Chief Justice said: The second factor, being whether the plaintiff has a genuine interest in the issues, also reflects the concern for conserving scarce judicial resources and the need to screen out the mere busybody. This factor asks "whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise"... To determine whether a genuine interest exists, a court may refer, among other things, to the plaintiff's reputation and to whether the plaintiff has a continuing interest in and link to the claim … (at para. 51) Reasonable and Effective Means [28] This third and final factor is closely tied to, and informed by, the principle of legality and speaks to the desirability of ensuring that governments may be effectively held to account for actions which impact upon the public. (Council of Canadians with Disabilities, at para. 52) [29] The principle of access to justice is also engaged. It involves questions around whether granting public interest standing will promote the rights of those who might be disadvantaged, marginalized, or otherwise compromised in their ability to challenge government action. That said, the Court approaches this principle with an appropriate degree of caution to ensure that it is not distorted into a means by which any person may presume to take up the mantle of the public interest and “set themselves up as the representative of the poor and marginalized” (Council of Canadians with Disabilities, at paras. 52 and 58) [30] These guiding principles around legality and access to justice become embedded within and inform the following instructions on how to this particular factor: To determine whether, in light of all the circumstances, a proposed suit is a reasonable and effective means of bringing an issue before the court, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting, and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality (Downtown Eastside, at para. 50). Like the other factors, this one should be applied purposively, and from a "practical and pragmatic point of view" (para. 47) The following non-exhaustive list outlines certain "interrelated matters" a court may find useful when assessing the third factor (Downtown Eastside, at para. 51): 1. The plaintiff's capacity to bring the claim forward: What resources and expertise can the plaintiff provide? Will the issue be presented in a sufficiently concrete and well-developed factual setting? 2. Whether the case is of public interest: Does the case transcend the interests of those most directly affected by the challenged law or action? Courts should take into account that one of the ideas animating public interest litigation is that it may provide access to justice for disadvantaged persons whose legal rights are affected. 3. Whether there are alternative means: Are there realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination? If there are other proceedings relating to the matter, what will be gained in practice by having parallel proceedings? Will the other proceedings resolve the issues in an equally or more effective and reasonable manner? Will the plaintiff bring a particularly useful or distinctive perspective to the resolution of those issues? 4. The potential impact of the proceedings on others: What impact, if any, will the proceedings have on the rights of others who are equally or more directly affected? Could "the failure of a diffuse challenge" prejudice subsequent challenges by parties with specific and factually established complaints? (para. 51, citing Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093). (Council of Canadians with Disabilities, at paras. 54 and 55) [31] The first factor listed above (i.e. the plaintiff’s capacity to bring the claim forward) includes an assessment into “the plaintiff's resources, expertise, and whether the issue will be presented in a sufficiently concrete and well-developed factual setting” (Council of Canadians with Disabilities, at para. 60) [32] In Council of Canadians with Disabilities, Wagner, CJ provided significant additional guidance on the question of how to determine whether “the issue will be presented in a sufficiently concrete and well-developed factual setting". (at paras. 61 – 72) He made three key points which can be summarized as follows: 1. An individual co-plaintiff directly impacted by the issue is not required for public interest standing (at paras. 63 – 67); and 2. The task of satisfying the Court on this issue is context specific. (at paras. 68 – 72); and 3. The Court can reconsider the issue of standing, particularly in circumstances where the question is considered early in the proceeding (at paras. 73 – 77) [33] For the present purposes, the first issue is not germane. There is no controversy here regarding the impact of the Impugned Orders on CANS. The third issue is of moderate relevance in that the Court must remain cognizant of the fact that the proceeding is in its early stages and that the test should not be deployed as a blunt weapon to deny public interest standing when the moving party has been prejudiced due to procedural impediments (e.g. lack of disclosure). That factor is greatly diminished in this case as the dispute is framed as judicial review which proceeds based on the established record and, to that extent, does not involve disclosure or discovery. [34] The final issue (i.e. satisfying the Court that the issue is context specific) is more germane to this motion. Wagner, CJ wrote: … What suffices to show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial? The answer to this question necessarily depends on the circumstances, including (i) the stage of litigation at which standing is challenged, and (ii) the nature of the case and the issues before the court. On the first point, what may, for example, satisfy the court at an early stage may not suffice at a later stage. Likewise, the significance of a lack of evidence will vary with the nature of the claim and the pleadings. Some cases may not be heavily dependent on individual facts -- where, for example, the claim can be argued largely on the face of the legislation. In such cases, an absence of concrete evidence at the pleadings stage may not be fatal to a claim for standing. Where a case turns to a greater extent on individual facts, however, an evidentiary basis will weigh more heavily in the balance, even at a preliminary stage of the proceedings. When standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence. That would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. Generally, however, a mere undertaking or intention to adduce evidence will not be enough to persuade a court that an evidentiary basis will be forthcoming. It may be helpful to give some examples of the considerations a court may find relevant when assessing whether a sufficiently concrete and well-developed factual setting will be produced at trial. As was the case in Downtown Eastside, for the purposes of its assessment of the "reasonable and effective means" factor, this list is not exhaustive, but illustrative. 1. Stage of the proceedings: The court should take account of the stage of the proceedings at which standing is challenged. At a preliminary stage, a concrete factual basis may not be pivotal in the Downtown Eastside framework -- the specific weight to be attached to this consideration will depend on the circumstances, and ultimately lies within the trial judge's discretion. At trial, however, the absence of a factual basis should generally preclude a grant of public interest standing. 2. Pleadings: The court should consider the nature of the pleadings and what material facts are pled. Are there concrete facts with respect to how legislation has been applied that can be proven at trial? Or are there merely hypothetical facts with respect to how legislation might be interpreted or applied? Do the pleadings reveal that the case can be argued largely on the face of the legislation, such that individual facts may not be pivotal? Or does the case turn more heavily on individualized facts? 3. The nature of the public interest litigant: The court may also consider whether the litigant -- if it is an organization -- is composed of or works directly with individuals who are affected by the impugned legislation. If that is the case, it would be reasonable to infer that the litigant has the capacity to produce evidence from directly affected individuals. 4. Undertakings: Courts rigorously enforce undertakings, which must be "strictly and scrupulously carried out"... An undertaking by a lawyer to provide evidence might help to persuade a court that a sufficient factual setting will exist at trial, but an undertaking alone will seldom suffice. 5. Actual evidence: Though a party is not required to do so, providing actual evidence -- or a list of potential witnesses and the evidence they will provide -- is a clear and compelling way to respond to a challenge to standing at a preliminary stage. As I explained above, the significance of a lack of evidence will depend on the stage of the litigation, the nature and context of the case, and the pleadings. (at paras. 71 – 72) APPLICATION OF THE LAW [35] I will deal first, and separately, with CANS’ request for an Order prospectively banning any attempt by a future provincial government (or its representative) to legislatively impose “anything but a voluntary immunization program at any time”. [36] I do not find that this aspect of the claim raises a serious justiciable issue. The Court does not address challenges based on hypotheticals or conjectural scenarios that may or may not come to pass. The Courts determine disputes involving real people and real facts as demonstrated through existing evidence. They do not stray into decisions based on what might happen in the future but has not yet occurred. The claims and complaints of a litigant must almost always be anchored in existing facts to help ensure that “… the issue will be presented in a sufficiently concrete and well-developed factual setting” (Downtown Eastside Sex Workers at para. 51. See also Alberta Union of Public Employees v. Her Majesty the Queen (Alberta), 2021 ABCA 416 at paras. 27 – 30). [37] For similar reasons, I do not find that CANS satisfied the third factor in the Downtown Eastside framework (i.e. whether this proceeding is a reasonable and effective means of bringing this matter before the Court). [38] There are exceptional cases where the Court will intervene very early in a dispute. Litigants will not always be required to wait until their rights are fully violated before the Court will intervene. There are times where the threatened harm is sufficiently imminent that the affected parties may proactively and justifiably require judicial assistance. However, even there, the Courts demand a minimal level of factual readiness or “ripeness” to ensure that disputes are not brought forward prematurely, without an adequate evidentiary record. The Supreme Court of Canada captured the essence of this basic concern in MacKay v. Manitoba, [1989] 2 SCR 357 when it stated: Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. (at pp. 361-62) [39] Respectfully, the facts and evidence before me are insufficient to provide CANS public interest standing for the purpose of seeking such broad relief in respect of governmental actions that are neither in place, nor threatened, nor imminent. [40] In the circumstances, it is unnecessary to consider the second Downtown Eastside factor (whether CANS has a genuine interest in the issue) in great detail. For reasons discussed below, I have concerns. Regardless, when considering the factors individually and cumulatively on this issue, the concerns expressed above regarding the first and third factors very clearly prevail. [41] Respectfully, I am not prepared to grant public interest status for the purpose of pursuing this aspect of the claim. CANS seeks to affix its legal arguments regarding the Impugned Orders with such absolute certainty and immutable force that they would foreclose “anything but a voluntary immunization program at any time” - without regard to whatever facts or context may or may not exist in the future. The evidence and controversy are simply not ripe and is largely based on unrealized fears or abstract conjecture. The claims go well beyond the boundaries within which I might reasonably take jurisdiction and grant public interest standing to proceed with this part of the claim. [42] I turn to CANS’ remaining issues and arguments. I begin by reviewing each of the Downtown Eastside factors individually and then conduct a cumulative weighing of all the arguments as a whole. Serious Justiciable Issue [43] The Respondents acknowledge that the remaining legal issues which underpin the requests for the Declaration of Ultra Vires, the Declaration of Procedural Unfairness and Charter Breach, and the Declaration of a Breach of Duty of Good Faith are justiciable. (Respondents’ written submissions at para. 86) However, they properly observe that the issues in question must be both justiciable and serious. And they dispute that the issues arise in the proceeding are “serious”, as that term has been defined through the caselaw. [44] The Respondents say: “…seriousness addresses the concern about the allocation of scarce judicial resources and the need to screen out the “mere busybody” and ensure that “judicial resources remain available to those who need them most”. (Council of Canadians, at para 48). The “serious issue” requirement arises when the question is found to be “far from frivolous” (Council of Canadians, at para 49). (Respondents’ written submissions at para. 85) [45] I refer to my comments regarding a “serious” issue above. I generally agree with the Respondents’ definition with one caveat: in Council of Canadians with Disabilities, the Court warned against overstating the concerns around “busybody” litigants. Wagner, C.J. wrote: In Downtown Eastside, the Court noted that the concern about "busybodies" may be overstated: "[f]ew people, after all, bring cases to court in which they have no interest and which serve no proper purpose" (para. 28). The denial of standing "is not the only, or necessarily the most appropriate means of guarding against these dangers": courts can also screen claims for merit at an early stage, can intervene to prevent abuse and have the power to award costs, all of which may avert a multiplicity of suits from "busybodies" (para. 28). (at para. 45) [46] The Respondents’ contention that CANS has not raised a “serious” issue is based on two main submissions: 1. That the Impugned Orders have not been in effect since May, 2023. Therefore, the concerns have been rendered academic (Respondents’ written submissions at paras. 86 – 88); and 2. That CANS bears the evidentiary burden of proving that it should be entitled to public interest standing and, yet, has failed to develop sufficient evidentiary basis (or a factual context) for the Court to properly assess whether a serious issue has been raised – particularly with respect to the allegations of bad faith. The Respondents argue that: A decision subject to judicial review can be determined to be reasonable or unreasonable based upon the record, but whether a decision was or was not taken in bad faith begs evidence which is not available in the judicial review process. Bad faith is difficult if not impossible to establish purely on the factual record. … the bald allegation of bad faith is so hypothetical in nature based upon the Record “that it would be impossible for any court to make a determination with regard to them” (R v. Canadian Council of Churches, [1992] 1 SCR 236, “Canadian Council of Churches”, at para 38). In contrast, in Canadian Council of Churches, refugee claimants were bringing forward claims akin to those bought by the Council daily, where “each case presented a clear concrete factual background upon which the decision of the court could be based” (at para 40). (Respondents’ written submissions at paras. 89 and 91) [47] As a preliminary comment, I do not consider CANS to be a litigious “busybody”. In its Corporate Mission Statement CANS clearly indicates that its founding principle includes a commitment to upholding the legal and Constitutional rights of Nova Scotians through legal action. They express a desire: “To enable and support human and constitutional rights and freedoms through fund-raising, community engagement and smart activism. To nurture a safe, healthy and economically thriving environment for our future generations through education and awareness-training” (para 21) [48] The CANS Vision Statement also describes its goals as being the pursuit of: “A society where governments and their agents are held accountable by an engaged citizenry and where transparency in government actions and decisions is the default. An aware collective with a strong focus on actions that nurture and protect our future generations, are informed by our collective history and which support our love of home, family and faith in the supremacy of God, the Great Creator, with committed real time action to achieve such a future for Nova Scotians to come.” (at para. 22) [49] As well and for emphasis, I am not prepared to conclude that the issues before me are now academic or moot. The Respondents have an outstanding motion to dismiss the proceeding on the basis of mootness. That will be heard in the future as a separate matter. Moreover, the Respondents have not provided any law in which the concept of mootness has been directly applied to (or overlaid upon) the Downtown Eastside framework. [50] I do share some of the Respondents’ concerns regarding the evidence which has been placed before the Court and especially given the serious nature of certain allegations. For example, in the Amended Notice of Judicial Review, the Applicants accuse the Respondents of: 1. Fraud by vesting the children with the ability to “consent” to a “coercive” vaccine mandate thus “abrogating the rights of a child’s parent or guardian, and circumscribing the proper procedures for refusal of medical treatment for children as laid out in the Children and Family Services Act section 61.” (at para. 2.2) 2. “Repeatedly and fraudulently asserting that the injection of the mandated experimental mRNA products caused immunity to Sars-Cov2 and were safe and necessary to stop the spread of a communicable disease in order to fraudulently place his actions wrongly within the statutory authorities of HPA .” (at para. 2.3) 3. “Acted in Bad Faith in the issuance of the impugned Order given that he had in front of him evidence at that time showing no asymptomatic spread of Sars-Cov2.” (at para. 2.5) [51] These are allegations at this stage. They are not based on self-evident conclusions, or universal truths. I also agree with the Respondents that the facts and evidence presented in an effort to more clearly and precisely understand the nature of CANS’ complaint is, respectfully, very limited. The strongest evidence produced in respect of these claims related to CANS request under Nova Scotia’s Freedom of Information and Protection of Privacy Act for “Any Record, Proof, Document, Report that an asymptomatic positive Covid-19 case is contagious and spread to others in Nova Scotia.” In response, the Nova Scotia Health Authority wrote: “We have conducted a thorough search of our records but were not able to find any records responsive to your request” (Amended Notice for Judicial Review, footnote 1). [52] The comments above relate to CANS’ arguments around fraud and bad faith. Other arguments are less controversial. For example, CANS’ claim that the Impugned Orders are ultra vires speak more forcefully for themselves. As Wagner, C.J. stated in Council of Canadians with Disabilities: “A statute's very existence, for example, or the manner in which it was enacted can be challenged on the basis of legislative facts alone...” (at para. 63) [53] Taking into account all of these strengths and weaknesses regarding all of the issues brought forward by CANS, I do not find that the issues raised by CANS are “far from frivolous” with respect to the validity of the Impugned Orders and underlying legislative authority (the PHO). [54] We are relatively early in the proceeding. While I am concerned that the seriousness of certain claims demanded a degree of particularity, I am not prepared to summarily reject the issues themselves as being frivolous or so weak as to be unworthy of public interest standing. [55] I also repeat Wagner, C.J.’s observation in Council of Canadians with Disabilities that, “Once it becomes clear that the statement of claim reveals at least one serious issue, it will usually be unnecessary to minutely examine every pleaded claim to assess standing...” (at para. 49). [56] Overall, in my view, I do not conclude that CANS has entirely failed to address this Downtown Eastside factor. This preliminary factor considered alone favours, with reservations, granting public interest status CANS. Genuine Interest in the Issue [57] The Respondents agree that CANS has a genuine interest in the arguments around whether the Impugned Orders were ultra vires but say that CANS (and J.M.) can pursue this issue in their private interest capacity. [58] However, as to the allegations of bad faith, the Respondents deny that CANS has demonstrated any real stake or genuine interest in the matter. [59] In Ecology Action Centre v. Nova Scotia (Environment), 2023 NSCA 12 (“Ecology Action Centre”), the Court of Appeal granted Ecology Action Centre public interest standing to pursue judicial review of a Ministerial Decision approving a Highway Realignment Project required to further the Goldboro LNG Project, overturning the decision not to grant such standing below. [60] At para. 111 of this decision, the Court of Appeal summarized its reasons as follows: The motions judge held Downtown Eastside’s second and third factors favoured standing. I adopt her views: • The Ecology Action Centre and NB Alliance are not “busybodies”. Their affidavits show a significant track record and a genuine interest, on behalf of their thousands of members, in the environmental issues at play. • This judicial review is a reasonable and effective way to litigate the matter. The Ecology Action Centre and NB Alliance have the resources and capacity, with experienced counsel, to assist the court. The court will hear an opposing view. As Justice Jamieson said (para. 76), “there are no realistic alternatives to the Applicants bringing the case via judicial review, as was acknowledged by the Department”. [61] The Respondents highlight a number of distinctions between the Ecology Action Centre as a public interest litigant and CANS, focussing on differences in their respective histories, track records as public interest litigants, and capacity for advocacy (including experienced counsel). The Respondents highlight the distinctions by way of the following comparison: … That Ecology Action Centre was one of the oldest environmental associations in Canada, established in 1971 (at para 2). That Ecology Action Centre had actively participated in both the 2014 environmental assessment of the Goldboro LNG project, and the 2021 review of the Highway Realignment Project proposed for Goldboro (at para 3). That a supporting affidavit confirmed Ecology Action Centre’s involvement in oil and gas issues for over twenty years, including environmental assessment processes for multiple projects or issues in Nova Scotia (at para 71). That the second applicant seeking public interest standing, New Brunswick Anti-Shale Gas Alliance, had a track record of over ten years involved in unconventional oil and gas issues including through public advocacy and litigation respecting environmental issues and climate change (at para 72). That the two applicants said they had sufficient resources and capacity to undertake judicial review, as demonstrated through their involvement in other litigation, they were represented by counsel with experience in environmental law, and they brought a useful perspective to the resolution of the issues which was distinct from those more directly affected (at para 37). By contrast, the Corporate Applicant in the present case: Is not an established organization, having only been founded in 2021; Has offered no evidence of any track record of public advocacy or education about matters related to this proceeding; Has not participated in any litigation other than the present proceeding; Is not represented by counsel with experience in the subject matter of this review or judicial review processes generally. In fact, the Corporate Applicant does not have any legal representative; The Corporate Applicant brings no unique perspective to resolution of the issues distinct from those directly affected. Indeed, the Corporate Applicant’s brief suggests that one of their principal concerns is what they frame as rights of parents. The Corporate Applicant has not identified any connection to this interest in their evidence, and have not identified how views about purported rights of parents cannot be better considered with factual context by affected parents.[3] (Respondents’ written submissions at paras. 100 – 101) [62] These differences, the Respondents conclude, weigh against CANS in terms of its suitability for public interest standing. [63] I add that, here and unlike Ecology Action Centre, there are alternatives by way of judicial review for the Applicants to bring key concerns forward as private litigants. [64] In my view, this factor favours the Respondents and against public interest standing. My reasons include: 1. On the one hand, I accept that the Applicants express a genuine commitment to these issues and are concerned with the outcome of this proceeding. I repeat the descriptions of their goals and mandate in paras. 47 – 48 above and am satisfied that their having a stake in this matter are sincere; 2. On the other hand, while the Court file contains some information suggesting a broad-based membership comprising many segments of society, there is a relative paucity of detail regarding their organization and the scope of its activities and interests. And it has yet to achieve a reputation where these types of concerns might be easily defused. This is not a case where, for example, an organization with an expressed interest in the environment seeks public interest standing on a matter involving alleged environmental degradation. The goals and mandates expressed by CANS are very general in nature and revolve around the defence of personal liberty, informed activism, transparent government. By way of example, the evidence tendered by CANS in support of its motion for public interest standing was primarily an affidavit and rebuttal affidavit sworn by a member of its Board of Directors: Tara Ibrahim. The original affidavit is one page. The rebuttal affidavit is two pages and attaches two (unsworn) exhibits. The main body of the affidavits provide general statements regarding CANS’ mission and values. They refer to a desire to engage in civil rights advocacy in the sense that they affirm dedication to equal protection before the laws and assisting through judicial remedy those who were wronged by “the application of legislation.” They also both assert the belief that the conclusion that CANS’ interests are “aligned with and without conflict to every Nova Scotia affected by the [Impugned Orders]” The “Vision and Mission statement” attached as Exhibit 1 to the affidavit of Ms. Ibrahim includes the following goals: “To hold responsible parties accountable for any actions and measures that violate the human and constitutional rights and freedoms of Nova Scotians; and we will achieve this by engaging in legal proceedings as well as civil education and awareness sessions” “To rebuild our communities which were adversely affected by political and public health misinformation and propaganda…” 3. I accept that CANS membership appears to have mobilized as a grassroots organizations dedicated to providing a collective response to alleged injustices caused by the Respondents’ pandemic response. And I accept that CANS itself, as a separate legal entity, was born out of the same general impulse. Even so, the particular interests of CANS have not been specifically connected to the particular interests and concerns which CANS seeks to represent in these proceedings including: a. Children, parents, and the health of the family unit; b. Segments of the scientific and medical community which, according to the pleadings, challenge the integrity of the reasons and data available in support of the Impugned Orders. The Applicants refer to the following alleged misconduct on the part of the Respondents: i. “Repeatedly and fraudulently asserting that the injection of the mandated experimental mRNA products caused immunity to Sars-Cov2 and were safe and necessary to stop the spread of a communicable disease.” (Amended Notice of Judicial Review, para. 2.3); and ii. Issuing the Impugned Orders when the CMOH “had in front of him evidence at that time showing no asymptomatic spread of Sars-Cov2 (Amended Notice of Judicial Review, para. 2.5). c. Wider, undefined interests concerned over the “prima facie discriminatory” nature of the Impugned Order which did such things as “prohibiting faith gathering, denying the unvaccinated access to employment, facilities and services, circumscribing medical exceptions, etc.” (Amended Notice of Judicial Review, para. 2.6) Reasonable and Effective Means [65] In considering this issue, there are aspects of CANS’ efforts that I accept militate in favour of public interest standing. I agree the issues which CANS raises are of public interest and transcend it as an organization. For the purposes of this motion, I am also prepared to accept that CANS’ concerns may have an impact on others who similarly seek declaratory relief for past actions. [66] As to the issue of alternative means to pursue these claims, the Respondents have suggested that it would have been preferable to commence an action which would have necessarily allowed the Applicants to more fully pursue disclosure and discovery. However, they do not press this argument and an action would also have taken much longer to resolve. The Applicants chose to proceed by way of judicial review. That procedural vehicle comes with certain advantages and disadvantages. I am not prepared to condemn CANS’ decision and am satisfied that the issue is neutral, at best. [67] The final issue regarding CANS’ capacity is, in my view, the most problematic. This issue compels the Court to consider the plaintiff's resources, expertise, and whether the issue will be presented in a sufficiently concrete and well-developed factual setting. As indicated, a non-exhaustive list of the additional factors that bear upon the assessment of whether the party seeking public interest standing can demonstrate that the issues will be presented in a sufficiently concrete and well-developed factual setting include: 1. Stage of the proceedings; 2. Pleadings; 3. The nature of the public interest litigant; 4. Undertakings; and 5. Actual evidence. [68] In my view, this factor weighs in favour of the Respondents arguments and against granting public interest standing. [69] I recognize that the proceeding is in its infancy, relatively speaking. There are still disputes as to the record and hearing dates have yet to be set. In addition, there is an outstanding preliminary motion of mootness. Overall, it is important not to unfairly prejudice the party seeking public interest standing by imposing an overly demanding and exacting standard for the development of an adequate factual setting. I have taken these limitations into account. [70] However, the problems overshadow even a generous and accommodating view of these issues. Among other things: 1. I have virtually no evidence regarding CANS’ experience, resources, capacity for public interest litigation, or expertise in certain of the technical matters that have been raised in the pleading (e.g. epidemiology and other technical medical matters). On the issue of legal expertise, I am also compelled to observe that CANS’ relative inexperience has manifested itself in this proceeding, at times. There have been multiple motions to amend the pleadings, delays attributable to a breakdown with original counsel and a subsequent decision to proceed as a self-represented litigant, and submissions which were very clearly well-meaning but, at times, incomplete or misplaced.[4] I accept that CANS is a committed organization, but it is also a fledging organization which materialized recently and in response to certain actions taken by the government (or its representatives) during the pandemic. However, respectfully, the evidence before me is insufficient to adequately assess their track record in public advocacy and, I repeat, CANS bore the evidentiary burden of demonstrating capacity for pursuing public interest standing. CANS’ experience with litigation is very limited and consists almost entirely of its engagement in this proceeding. CANS is determined to press forward as a self-represented litigant. It is entirely within its rights to do so. At the same time, serious concerns arise in terms of CANS’ capacity to represent the public interest and assist the Court in a matter which has been framed in such a broad and comprehensive manner which involves a complicated challenge to virtually all aspects of the vaccine mandate imposed through the Impugned Orders. 2. The Court retains the discretion to consider the lack of evidence. In this case, the Respondents have begun to produce the record required for judicial review. There is a dispute as to whether that record is complete. At the same time, CANS was not operating in an evidentiary void. This is less of a concern in respect of the Applicants arguments that the Impugned Orders were ultra vires or breached the Charter or were unreasonable – to the extent those arguments are based largely on the content and nature of the Impugned Orders and supporting legislation. However, the significance of this increases where the claims are dependent of individual facts. This is true when considering the allegations of bad faith and, for example, the argument that the Respondents deliberately acted in a fraudulent manner. The types of allegations are much more personal and individualized in nature. As indicated above, I do not find that the allegations being made are “far fetched” and there is sufficient information before me to determine that a serious, justiciable issue has been raised. However, on this particular factor, the absence of more complete evidence to support the strong and severe allegations becomes increasingly problematic; 3. The pleadings are sufficiently framed for present purposes. However, the nature of the public litigant’s interest is much more difficult to ascertain given the all-encompassing nature of the Impugned Orders and, as well, the wide-ranging nature of the Applicants’ allegations. It is extremely difficult to assess based on the limited record before me the extent to which CANS works, for example, with parents; children; persons who worked in “high-risk settings” as defined by the Impugned Orders; persons engaged in discretionary, non-essential events, activities and services versus non-discretionary, essential events, activities and services, etc.; and 4. These issues regarding the evidence tendered as part of this motion create related, significant concerns as to whether the promise for a sufficient factual setting for trial can reasonably be relied upon or fulfilled. On this, for clarity, I repeat that CANS continues to express concerns regarding the evidentiary record. However, that does not fully explain the or diminish CANS’ burden of showing reasonable and effective means of developing the required factual context in this adversarial setting – particularly given the seriousness of the matters in question. [71] I pause here to address an issue raised by CANS during oral submissions. CANS resisted the idea that legal expertise and experience is an essential prerequisite for the grant of public interest standing. Or that self-represented laypersons should not presume the prerogative or privilege of representing the public interest in, what CANS’ representative described as the “temple of justice”. Or that, for matters of public interest, the Courts reserve space only for those with legal experience and/or capable of affording a lawyer. [72] CANS’ arguments reflect an obvious, natural concern of citizens who work in furtherance of what they believe to be in the public interest. They also require the Court to consider the meaning and scope of access to justice as a concept which fundamentally informs the analysis around public interest standing. [73] As indicated above, access to justice is a principle which informs the Court’s approach. I have remained mindful of this issue and I was careful to take it into account as part of my analysis. However, given CANS submission, I feel it appropriate to provide additional comment. [74] I note: 1. All parties recognize that CANS and J.M. have standing as a private entity to pursue at least aspects of the claim. Thus, there is no dispute that both CANS and J.M. have private litigant standing to assert that the Impugned Orders are ultra vires. In addition, while the Respondents appears to dispute whether the allegations of additional bad faith are sustainable, these reasons should not be interpreted as saying that either CANS or J.M. lack private litigant standing to proceed on that aspect of the claim. The only matter before me is CANS application for public interest standing. This decision is limited solely to the unique considerations which bear upon that issue and should not be used or interpreted for any other purpose. Those issues may come forward at another time. For present purposes, the point is that this decision on public interest standing will not determine whether the proceeding moves forward or fails entirely. Neither CANS nor J.M. will be shut out entirely or precluded from advancing their specific, personal interests; 2. No one factor in the Downside Eastside framework is determinative. To quote Cromwell, J. in Downside Eastside: …the three factors should not be viewed as items on a checklist or as technical requirements. Instead, the factors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes. …each factor is to be "weighed ... in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes"... These purposes are threefold: (i) efficiently allocating scarce judicial resources and screening out "busybody" litigants; (ii) ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues; and (iii) ensuring that courts play their proper role within our democratic system of government... (at para. 37) 3. The Court strives to achieve a just result which finds equilibrium between ensuring governments act in a lawful manner; promoting access to justice for those affected by government decisions; and the more practical need to ensure that the Courts are not unnecessarily overburdened by individuals seeking to pursue any public grievance. This balancing exercise involves adopting a perspective that is faithful to the underlying principles of legality and access to justice but is also sufficiently pragmatic so as to ensure the aims of justice align with the administration of justice. (Council of Canadians with Disabilities, at para. 54) As a result, assessing the capacity of a party to effectively navigate a legal proceeding and properly articulate the applicable legal principles is necessary but not necessarily determinative; and 4. CANS seeks to advocate on behalf of both its own, recognized private interests and, as well, the public interest. Representing the public interest is a significant responsibility, particularly in the case at hand where the government’s vaccine response to the pandemic swept across all segments of society; was complicated from a political, social, and scientific perspective; and ultimately attracted a wide range of divergent views. Not anyone can presume to act in the public interest. People who seek to represent the public interest are not subject to a vote by the public; or a process by which public input or consent is obtained. Public interest standing is granted as part of the Court’s process. In these circumstances, it is understandable that the Court will seek to ensure that a party which purports to represent the public interest has demonstrated a reputation and capacity to assist the Court in a manner commensurate with this responsibility. This does not mean that individual citizens or groups such as CANS must tolerate that which is intolerable or passively submit to any government action. However, it does mean that they must be prepared to accept a reasonable amount of scrutiny as to their reputation and capacity before they can presume to represent fellow members of the public and be granted public interest standing. Cumulative Review [75] Analysing all of the factors together and conducting a cumulative weighing, I conclude that CANS application for public interest standing must be dismissed. The concerns raised above in respect of the second and third factors of the Downtown Eastside framework predominate and, on balance, overwhelm any advantages of public interest standing which favour CANS and are associated with the preliminary factor (i.e. a serious justiciable issue). The third factor and CANS relative inexperience is of particular concern given the nature of the allegations and the foreseeable complexity associated with representing the public interest. Conclusion [76] The motion for public interest standing is dismissed. [77] For emphasis, I repeat that the only issue before me CANS’ motion for public interest standing. I repeat that nothing in these reasons should be interpreted as going beyond what was necessary to determine that matter. For greater clarity, and without limitation, I make no determinations whatsoever regarding: 1. The Respondents’ arguments regarding mootness; and 2. The Respondents arguments regarding the Applicants’ standing, as private litigants, to pursue the claims of bad faith or any other matter raised in the pleadings. [78] The Respondents are directed to prepare the necessary Order for CANS’ review in accordance with Civil Procedure Rule 78.04. [79] Costs, if any, are to be determined. Keith, J. [1] J.M. was a child aged 16 or under at the time of the Impugned Orders. By Order dated April 20, 2022, Muise, J. prohibited the publication of any information that might disclose the identity of J.M. or his litigation guardian. [2] The protocols also contained directives around what would be considered “acceptable forms of proof of full vaccination” which term was defined in s. 2.2 of the COVID-19 Protocol for Proof of Full Vaccination for Events and Activities. See also the description of “acceptable forms of proof of full vaccination” in Appendix A to the COVID-19 Mandatory Vaccination Protocol in High-Risk Settings. [3] Respectfully, the Respondents characterization of CANS argument regarding bad faith is overly narrow. It is true that one aspect of CANS’ allegations is that the Impugned Orders violated the rights of children and their parents. However, the allegations are broader in scope as confirmed in para. 50 above. [4] By way of example, CANS original submissions for public interest standing began by invoking the great writ of habeas corpus. To be clear, CANS was correct in noting that habeas corpus is viewed an ancient and important protector of personal liberty and the right is not unlawfully detained without due process. However, its connection to the law around public interest standing is tenuous. Moreover, these original submissions did not refer to the Downtown Eastside framework or address the specific factors, purposes, principles which inform the public standing analysis. At most, these submissions focussed on the seriousness or importance of the allegations and underlying issues. There have been other procedural problems which revealed CANS relative inexperience. That said, my concern is primarily the more substantive (as opposed to technical) issues that have arisen.