Judge rejects emergency request to give Alberta school boards mask enforcement powers

An Alberta judge has rejected, in part, an application for an emergency injunction against the province's decision to lift a mask mandate in schools, but the court battle over the policy is expected to continue.

Edmonton Court of Queen's Bench Justice Grant Dunlop rejected an emergency application Monday that sought to immediately reinstate the right of Alberta school boards to enforce their own masking mandates but a sweeping emergency application against the policy will still be heard as the emergency hearing has been adjourned

The law firm representing the applicants says it plans to continue the fight to reinstate masking mandates for all Alberta K-12 students.

Premier Jason Kenney used Twitter Monday to characterize the application Monday as a political manoeuvre threatening the well-being of Alberta children. Later on the social media platform, he celebrated the court ruling.

"Common sense is prevailing," Kenney said.

Kenney had announced Feb. 8 that masks for students in Alberta schools would no longer be required as of Monday. Dr. Deena Hinshaw, Alberta's chief medical officer of health, signed a public health order about the change later in the week.

The injunction application asks that the mask mandate remain in place in schools until at least March 1, or until the application can be reviewed by the court.

Edmonton firm Roberts O'Kelly Law filed the application Sunday on behalf of parents of five immunocompromised children and the Alberta Federation of Labour (AFL), which represents about 170,000 unionized Alberta workers.

The application argues that the sudden end of the masking mandate infringes on the charter rights of immunocompromised children.

It alleges that the order is a policy based on politics, not public health — and that the decision was made not by Hinshaw but by government officials who don't have jurisdiction over public health restrictions.

It asks that Hinshaw's public health order be rescinded pending a judicial review of both the policy and of how the decision to end the mandate was reached.

In court Monday, Dunlop was asked to rule on a part of the application seeking to give school boards the authority to enforce their own mask mandates.

No evidence of irreparable harm

Education Minister Adriana LaGrange told school boards last week they don't have the authority to enforce masking in the classroom, which the applicants characterize as an unfair prohibition.

Dunlop found a lack of evidence to support the emergency application but said the remaining arguments for the injunction will be examined once evidence from both sides has been received.

There is no evidence of irreparable harm, the judge said.

"I've dismissed the narrow, very narrow application that was before me on the basis of no evidence," he said. "It's an open issue whether the applicants can bring that back again or not."

Dunlop said he was not prepared to impose deadlines but said the arguments surrounding the calls for a judicial review should be heard soon.

"I am simply dismissing the narrow application — emergency application — and adjourning the larger one," he said.

Orlagh O'Kelly, a partner at Roberts O'Kelly Law, said it's a frustrating first step in legal proceedings.

Every day that goes by that these children can't attend school is causing harm.- Orlagh O'Kelly

Banning schools from making their own decisions and from requiring masks violates the rights of school-aged children, O'Kelly said after court had adjourned.

"I wasn't surprised but I think it's just unfortunate," she said. "The inability to get evidence was due to the short notice given to families.

"We did the best we could today and we will continue to marshal that evidence so we can try to get relief for the families, and the children that are out of school because of this order." 

O'Kelly said her firm will be speaking with the associate chief justice on timelines. She said she remains hopeful the application will be heard soon.

She said her firm had suggested that arguments over school board authority be heard immediately on Monday in the interest of getting some relief for the families involved.

"We consider this to be an emergency issue. Every day that goes by that these children can't attend school is causing harm," she said.

"We were trying to have the most minimally-invasive [outcome], which would have been to just allow school boards to do what they're legally entitled to do."

The application alleges that the decision to end the mask mandate was political, swayed by the demands of protesters at the Coutts, Alta., border blockade.

Only Hinshaw or another medical officer of health have the legislative authority to render a decision under the Public Health Act, the court document says.

But the application alleges that Hinshaw didn't make the decision.

"The decision was made by the premier, ministers and/or cabinet, and therefore without jurisdiction under the Public Health Act," it says.

"Further and/or in the alternative, the decision is unlawful as it was improperly based on the demands of an illegal blockade to the exclusion of most if not all public health evidence." 

In a statement Monday afternoon, LaGrange said she was pleased to see the emergency injunction dismissed.

"Today's application for an injunction is yet another stunt from the NDP's union friends at AFL to spark more fear on Alberta parents and kids," LaGrange said.

"They want to keep masks on children indefinitely — and we know that this is not in the best interest of students."