Order to lift mask mandate in Alberta schools ‘unreasonable’: judge

The order to remove masking in schools from Alberta’s chief medical officer of health has been found to be “unreasonable” by an Alberta judge. That same justice also found a subsequent letter to school boards from the education minister was “not a regulation” and caused “widespread misunderstanding” whether it was a prohibition of masking.

The decision comes from a case that was in front of the Court of King’s Bench involving parents of immunocompromised children and the Alberta Federation of Labour (AFL) seeking a review of the Feb. 8 public health order removing the requirement for students, staff or parents from wearing face coverings in schools.

Justice Grant Dunlop found that Dr. Deena Hinshaw did not make that decision and appeared to be following the direction of the provincial government’s priorities and implementation cabinet committee (PICC). Dunlop cited evidence including a presentation that had three options to lift various public health measures.

“The PICC minutes record a decision to direct the Minister of Health to implement Option 2, but vary Option 2 by removing the school mask mandate at Stage 1, specifically at 11:59 pm on February 13, 2022. Dr. Hinshaw’s Order does exactly what PICC directed with respect to removing the school mask mandate, including the specific date and time of that removal,” Dunlop found.

Dunlop said the Public Health Act required the CMOH or an authorized delegate to make the decisions, not cabinet.

The Act’s language puts the decision making power for any orders relating to communicable diseases with the CMOH.

“The clear intention of the Public Health Act is that the orders of the Chief Medical Officer of Health be based on that officer’s judgment,” the justice wrote in the decision released Thursday.

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Dunlop also noted that at a Feb. 10 press conference, Hinshaw declined to answer questions about removing the school mask mandate, instead referring the question to the health minister.

“I would defer to Minister Copping to answer that question,” she said.

“Because the order slavishly implemented PICC’s decision, I conclude the order was unreasonable,” Dunlop wrote in his 28-page decision.

LaGrange’s letter led to ‘widespread misunderstanding’

“I also declare that Minister LaGrange’s Statement did not prohibit school boards from
imposing mask mandates in schools,” Dunlop wrote.

On the same day as the school masking requirement was removed, Education Minister Adriana LaGrange wrote a letter to schools, stating “school authorities cannot deny their students access to in person education due to their personal decision to wear or not to wear a mask in schools.”

Dunlop said that caused “widespread misunderstanding.”

While the justice minister can restrict powers of a school board, the Education Act stipulates that must be done through a regulation.

Dunlop said that statement was not a regulation “on its face.”

“It is not called a regulation and there is no evidence before me that it was published as the Regulations Act requires.”

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But actions and statements of school boards following LaGrange’s statement appeared to show the school boards were under the impression they were restricted from implementing a mask mandate, something they had been able to do before Feb. 8.

The families also asked the court to find the government’s actions violated the children’s Charter rights. They alleged the lifting of the mask mandate and apparent prohibition from the education minister of future mask mandates was discriminatory against the disabled children and would deprive them of life, liberty or security.

But Dunlop found there wasn’t enough evidence to support the Charter argument, dismissing that request.

The Ministry of Education said they respect the judge’s decision, apparently lauding the Charter-related decision.

“The Government of Alberta moved forward with a plan to safely lift public health measures, in line with other provinces and other countries, based on the best available evidence, including advice from the Chief Medical Officer of Health. We will continue to make public health decisions based on the evidence,” acting press secretary Savannah Johannsen said in a statement.

‘A bittersweet victory’

AFL president Gil McGowan said the decision was a “very good day for public health.”

“Some may say this is a backward looking decision,” McGowan said. “(Political decisions of public health and the ability for school boards to set mask mandates) are both live issues today.”

McGowan said the AFL plans to reach out to Hinshaw to remind her of the powers and responsibilities under the Public Health Act in the pandemic.

He’s also planning on sending letters to all school boards across the province to remind them they have the right to set mask mandates “to deal with local conditions.”

One of the parents that was part of the court action called the decision a “bittersweet victory for kids across Alberta.”

“The Alberta cabinet violated the Public Health Act and put the lives of children in jeopardy. The decision to lift masks was politically motivated and not in the best interests of children,” a parent identified as S.A. said in a statement.

Global News has agreed to keeping the parent’s identity anonymous.

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The parent said their family had been “directly impacted by this recklessness” and had to decide between their child’s education and health.

“Our child has been subjected to bullying and their health has been compromised. No child or parent should ever be put in this position.”

The parent said Dunlop’s decision confirmed Hinshaw’s authority to act and reimplement mask mandates in schools, where documents as part of the trial showed there was increased spread of COVID-19.

“The pandemic isn’t behind us – we are in the midst of another wave of COVID and children are also being impacted by a surge in RSV and other respiratory viruses. We urge Dr. Hinshaw to protect the health of children – particularly those with disabilities – and reinstate mask mandates in schools.”

“The ball is now in Premier Danielle Smith’s court now,” McGowan said. “Given the fact we’ve passed the disturbing milestone of 5,000 deaths… the question is, where is the chief medical officer of health?

“The silence is deafening.”

Global News reached out to Alberta Health, Alberta Education and the premier’s office for comment.

Premier Danielle Smith has previously said she plans to replace Hinshaw.

“I will be developing a new team of public health advisers,” Smith said on Oct. 11.