CLASS ACTION UPDATE Day 10 Summary Today was the final day of an extremely hard-fought certification hearing that has spanned 15 days of submissions from both sides dating back to April of this year. Now we await the decision of Madam Justice Burke. We want to express our deepest gratitude for the tremendous advocacy and persistence of BCPSEF’s and @UHCWBC’s legal counsel, Umar Sheikh (@uasind). What he has done to move this litigation forward is truly remarkable. Regardless of the outcome of this certification application, we know that the best possible case has been put forward in defence of B.C. public servants, healthcare workers, #medicalprivacy, and #bodilyautonomy. Today’s Hearing Opening Procedural Dispute · The plaintiffs concluded their response to the defendants’ arguments regarding certification criteria · The defendants’ objected to the plaintiffs’ written summary document submitted to the court · Court broke for 30 minutes to allow the defendants to review the summary · The defendants formally objected, arguing the summary was submitted too late and constituted an improper new submission on the final hearing day · The defendants requested the court reject the document and end the trial · The plaintiffs countered that the defendants had provided supplementary documents throughout trial and that they had a right to reply to all arguments, including new case law raised after their March 2025 written submissions · Justice Burke ruled to allow the summary document on the basis that counsel would present it orally · The defendants requested the judge vary the January 2025 Order; Justice Burke declined and confirmed her decision Certification Criteria Arguments Identifiable Class · The plaintiffs argue their proposed classes satisfy all certification criteria · The law requires identification by objective criteria, not perfect precision or exhaustive definition · The fact that some class members may receive no settlement is not grounds for denying certification "Empty Class" Objection · The plaintiffs dispute the defense's "empty class" argument · The Province called its own measures "Mandates" · The defendants acknowledged the proposed class definition could be amended to "those unionized employees who were subject to PHO Orders" · The plaintiffs characterize this as the unionized employees' practical reality—concrete, fact-based, and non-subjective Over-Inclusiveness Claims · The defendants argue the proposed classes are over-inclusive, including people who voluntarily vaccinated and those hired after the mandate · The plaintiffs contend this is a merit-based objection for trial, not certification hearing · Over-inclusiveness is not fatal to certification as long as all were affected by the existence of the order Class Identification Complexity · The defendants argue legal judgment would be required to identify healthcare worker class members due to complex orders · The plaintiffs respond that unionized workers would know if they worked under a PHO Order and whether their employment was in jeopardy · The defendants claim orders applied to myriad healthcare employers; the plaintiffs reply this is exactly the type of objective criteria enabling class identification Overlap with CSASPP Action · The defendants claim the actions overlap or re-litigate the CSASPP action · The plaintiffs clarify their actions concern only PHO Orders regarding employment, not restrictions on restaurants or public gatherings · The plaintiffs acknowledge 213 potential claimants could be part of both classes but assert this is manageable through sub-classes Substantive Legal Arguments Misfeasance · The plaintiffs argue that if the Cassels report is accepted, the defense argument against including misfeasance collapses · The plaintiffs contend this goes to merits for trial, not certification hearing · At this procedural step, the court is not judging merits · The plaintiffs frame misfeasance as a commonality issue since everyone was subject to the PHO's actions Expert Evidence on Transmission · The defendants requested the court accept their expert witness's evidence on transmission as incontrovertible truth · The plaintiffs argue this should be determined at trial · Data regarding transmission requires interpretation and is contested Safety Data · The defendants acknowledge myocarditis, pericarditis, and thrombosis resulting from the vaccines · The plaintiffs argue the defendants’ safety position is context-dependent and not without risks Common Issues General Principles · The defendants argue issues and impacts require individual investigation and are not common · The plaintiffs assert the proper test is whether there is some evidence of issues common to prospective class members · Common issues may be nuanced and varied; the exact same impacts on each class member are not required · The shared interest of a common class need only extend to resolution of common issues 90-95% Participation Argument · The defendants claim 90-95% of the proposed classes have no interest in the action · The plaintiffs respond that a lower degree of damage doesn't establish over-inclusiveness · Not every class member has to recover to same degree · The defendants provide no evidence supporting their 90-95% claim · All vaccinated employees were still forced to reveal their vaccination status and may have privacy breach interests · Even 100% vaccination compliance doesn't reflect an absence of a claim but may reflect a coercive environment Collective Agreements · The defendants argue there are too many collective agreements/employees in the proposed classes · Plaintiffs point out fundamental inconsistency: defense wants court to interpret Mr. Ferguson's collective agreement while simultaneously arguing court cannot/should not interpret collective agreements Privacy Breach and Charter Issues · Regarding reasonable expectation of privacy and privacy breach arguments · Proposed Charter issues are overarching and affect everyone Aggravated Damages · The defendants argue aggravated damages are unsuitable for a civil claim · The Plaintiffs frame damages around Charter breaches · The Court could choose not to certify aggravated damages as common issue without refusing to certify an entire class · Class action certification can't be denied because sub-classes of damages may exist · Section 7 of Class Proceedings Act allows assessment for different damages · Defendants’ objection: claimed plaintiffs already conceded aggravated damages were an individual issue, not common issue · Plaintiffs’ response: disagreed with that characterization; position unchanged · The defendants noted the plaintiffs did not object when they orally stated the plaintiffs had conceded damages were individual · The judge asked defendants’ counsel for their objection/concern; they would advise court in the afternoon System-Wide vs. Contract-Based Approach · The plaintiffs characterize the action as a system-wide question about government action, not a contract-by-contract inquiry · The plaintiffs argue the defendants are trying to turn a certification hearing into a determination on merits Duplication of Claims · The defendants assert the plaintiffs are duplicating claims already decided through judicial reviews or arbitration · The plaintiffs respond that neither labor arbitration nor judicial review can address the issues outlined in their claim Complexity and Preferable Procedure · The defendants emphasized the breadth and complexity of the claims with multiple employers, unions, and collective agreements · The plaintiffs argue this is exactly why class action is the preferable option—it answers questions once and for all instead of repeatedly · The most efficient response to complexities is answering the question once in class action rather than hundreds of tribunals with potentially different outcomes · Individual tribunals would still not address questions regarding government's province-wide actions affecting thousands of workers · The commonality question should be answered once, then individual damages looked at · The court has many tools to manage large-scale litigation; complexity is not a reason to deny certification Representative Plaintiffs and Litigation Plan Representative Plaintiffs · Being a representative plaintiff is not onerous burden · Representatives do not need to be perfect; it is not a contest for "best possible representative" · The only requirement: no conflicts and fair representation of the class · Affidavits were similarly worded to meet statutory requirements and address similar issues · Similarity of phrasing is not evidence of misunderstanding Counsel Suitability · Plaintiffs’ chosen counsel has extensive union experience · Has managed policy disputes with positive resolutions with very large organizations · Has managed thousands of documents · Directly experienced regarding specific issues in this case · Career experience requires managing large teams, complex issues, and bringing resolution · This is counsel's first class action, but the plaintiffs argue that's not the test—the test is whether counsel is competent to bring the action forward · The plaintiffs note they have brought the case this far and can activate other legal networks if/when needed · If "one man law firm" is the only impediment, the plaintiffs request the court certify subject to a litigation plan that resolves the issue to the court's satisfaction Litigation Plan Criticisms · The defendants complained the litigation plan not thorough enough (lacking dates, etc.) · The plaintiffs respond that the court has supervisory role in managing case conferences, timelines, etc., which exist for building litigation plans · The standard being advanced by the defendants seems to require perfection with all dates, evidence, etc. pre-planned · The plaintiffs argue the litigation plan is a living, evolving document, supported by case law Opt-Out Process · The defendants raised concerns about the opt-out process · The plaintiffs assert this would be simple to address · The existence of potential opt-outs is not a basis to deny certification Additional Issues Cabinet Immunity · The plaintiffs argue cabinet immunity is an issue for the courts, not the certification hearing · This is not a basis to deny certification Mr. Ferguson's Remarks · Plaintiffs’ counsel objected to defense's characterization · Noted Mr. Ferguson asked Mr. Rustad a question without stating his own position or advocating a particular outcome · The defendants raised other concerns regarding some social media posts Final Arguments on Charter Damages Defendants’ Position · After conclusion of the plaintiffs’ response, the defendants addressed objections regarding individual damages · The pointed to case law illustrating why they assert Charter damages are an individual issue, not a common one · They argue Charter breaches concern individual rights, not common issues · They concede this would not bar certification alone but submit it's not the only issue Plaintiffs’ Response · The cases cited by defendants (involving strip searches in custody/prisons) are not appropriate to this case · Those cases did not establish blanket proposition that Charter damages cannot be a common issue Conclusion · Court concluded the hearing after a total of 15 days of submissions since April 2025 · Justice Burke advised she will reserve judgment and provide it in due course
