A proposed class-action lawsuit is seeking damages as it alleges the controversial ArriveCAN app was a violation of Canadians’ rights.
Consumer Law Group of Canada filed a proposed class-action lawsuit in Federal Court on Feb. 16 against the Attorney General of Canada.
It centres around the “wrongful quarantine” of Quebec residents E. Sabbag and D. Rossner, and claims the attorney general is liable for the acts and omissions of its “servants/agents” – including the Canada Border Services Agency (CBSA), the Public Health Agency of Canada (PHAC) and Public Services and Procurement Canada, which were responsible for the contracting, development and implementation of ArriveCAN.
On May 18, 2022, Sabbag and Rossner allege they were unable to access ArriveCAN – a tool launched in April 2020 as a way to manage travel during the COVID-19 pandemic – on their devices before returning to the land border after an overnight stay in Lake Placid, N.Y., the statement of claim reads.
When they arrived at the Saint-Bernard-de-Lacolle, Que., border stop, they explained the situation to the border agent.
“However, because they were not able to submit the requirement documentation by electronic means, they were instructed to quarantine. The plaintiffs attempted to show the border agent their proof of vaccination to no avail,” the statement of claim reads.
“The plaintiffs called the border and spoke to a ‘manager’ who informed them that there’s nothing they can do as they have been instructed to send all persons that fail to show their ArriveCAN information directly into quarantine without exception.”
It went on to say Sabbag and Rossner called PHAC and were told they had to wait for the results of self-administered COVID-19 tests before being allowed out of quarantine.
Sabbag had to wait a week for his results to arrive, while Rossner got his results in three to four days.
Given the time they spent in quarantine, the statement of claim alleges Rossner and Sabbag suffered damages that included cancelling scheduled events and obstruction to daily life.
“Both plaintiffs had to reorganize their lives as they would have seen friends and family, gone outdoors, gone grocery shopping, and generally had a life outside of their quarantine residence during the period during which they were subjected to a wrongful quarantine,” it reads.
“In addition, they have suffered pain and suffering, stress, trouble and inconvenience, anxiety, lost hours making phone calls and dealing with the issues relating to the alleviation of the wrongful quarantine, and loss of enjoyment of life.”
The statement of claim goes on to list other instances where Canadians allegedly ran into issues with ArriveCAN.
“Many people have had many issues with the ArriveCAN app, including inability to load, inability to submit the required information, submission failure codes, or wrongly receiving robocalls to quarantine,” it reads.
The proposed class action is open to all persons who travelled to Canada between Nov. 21, 2020 and Oct. 1, 2022, and either used or attempted to use ArriveCAN and who believe they were wrongly instructed to isolate and monitor for COVID-19 symptoms, despite being otherwise quarantine exempt where they submitted or attempted to submit the required documentation to CBSA.
The statement adds that the attorney general’s alleged negligence violated the plaintiff and class’s Charter rights to life and liberty, and against arbitrary detention or imprisonment.
It did not state a dollar value it is seeking, rather stating that would be determined.
The CBSA did not return Global News’ comment request by publication time. The attorney general has a month to respond to the class-action application. Ten additional days are available upon request.
The statement also cites the auditor general of Canada’s Feb. 12 report into ArriveCAN, which found the government agencies behind ArriveCAN “repeatedly failed” to follow best practices in its development.
The auditor general was tasked on Nov. 2, 2022, with looking into ArriveCAN, which ultimately proved to be a controversial tool fraught with technical setbacks.
There was also the issue of price: an early estimate for the app’s preliminary development put the cost at just $80,000 — but the total price tag has since soared to more than $54 million.
Auditor General Karen Hogan’s Feb. 12 report singled out the CBSA, whose “documentation, financial records, and controls were so poor that we were unable to determine the precise cost” of ArriveCAN.
Hogan’s office estimated ArriveCAN actually cost $59.5 million. It found that 18 per cent of invoices submitted by contractors that it tested did not provide enough information to determine whether expenses related to ArriveCAN or another IT project, making it “impossible to accurately attribute costs to projects.”
Hogan told MPs it’s possible ArriveCAN could’ve cost less than her office estimated, but it’s hard to determine because the bookkeeping, she said, was the “worst” she’s seen in years.
The CBSA had to rely on external resources for ArriveCAN as it didn’t have the resources to create and maintain it, therefore driving up the cost, the report said.
The auditor general estimated the average per diem cost for ArriveCAN external resources was $1,090, whereas the average daily cost for equivalent IT positions in the government of Canada was $675.
The report added that the CBSA’s “disregard for policies, controls, and transparency in the contracting process restricted opportunities for competition and undermined value for money.”
ArriveCAN “was an effective and necessary tool to collect mandatory health information while facilitating travel and trade,” the agencies responsible for ArriveCAN said in a Feb. 12 news release.
“Beyond the context of the COVID-19 pandemic, the app remains available today for travellers who want to make their customs declarations in advance and save time at the border.
“Despite these circumstances, we recognize that the gaps found by the auditor general are unacceptable and we are taking steps to ensure all government departments are better positioned to undertake projects of this nature in the future.”