Author Archives: Lorian Hardcastle

About Lorian Hardcastle

J.D. (Dalhousie), LL.M. and S.J.D. (Toronto). Assistant Professor. Please click here for more information.

Haste Makes Waste: Amending the Public Health Act

By: Lorian Hardcastle and Shaun Fluker

Bill Commented On: Bill 6, Public Health Amendment Act, 2023, 1st Sess, 31st Leg, Alberta, 2021 (first reading 2 November 2023)

PDF Version: Haste Makes Waste: Amending the Public Health Act

If there is one point of consensus on public health decisions made in Alberta during the COVID-19 pandemic, it is probably that the Public Health Act, RSA 2000, c P-37 failed to provide a proper framework for general lawmaking by executive order. The enactment of COVID-19 public health orders that applied restrictions to the general public did not adhere to basic matters of democratic governance such as organization and clarity, predictability and consistency, transparency and justification, and accountability to the elected assembly. The Act contains no provisions to ensure these lawmaking attributes are followed in making public health orders. Indeed, just weeks after the onset of the pandemic in 2020 it was readily apparent the Act was wholly inadequate in this regard  (see here and  here). Instead of addressing these fundamental issues, the UCP government has been fixated on amendments that score political points. For example, in April 2021, Alberta made a number of relatively inconsequential amendments to the Act (which we discuss here), but still found space to repeal Cabinet powers to compel vaccination in a public health emergency. In this post we explain why Bill 6, Public Health Amendment Act, 2023 is more of the same. Continue reading →

The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

By: Lorian Hardcastle

Legislation and Cases Commented on: Public Health Act, RSA 2000, c P-37; CM v Alberta, 2022 ABKB 716 (CanLII); Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453 (CanLII)

PDF Version: The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

At the start of the COVID-19 pandemic, provincial public health officials were thrust into the spotlight as trusted figures who would guide the public through the unknowns of a novel virus. However, as the pandemic raged on and tensions emerged regarding the appropriate restrictiveness of public health measures, cracks formed in the relationships between the public, politicians, and public health officials. At times, Alberta’s then Premier Jason Kenney and then Minister of Health Tyler Shandro seemed content to take credit for effectively balancing “lives and livelihoods”. However, when things were not going well, they would credit then Chief Medical Officer of Health (CMOH) Deena Hinshaw. For example, when the government’s disastrous “Open for Summer” plan contributed to severe hospital capacity problems and prompted discussions of sending people out of province for care and rationing essential health services, Shandro was quick to note that the plan “came from Dr. Hinshaw” and that he was “deferential to [her] independence.” Continue reading →

E. coli and the Public Health Act (Alberta)

By: Shaun Fluker and Lorian Hardcastle

Legislation commented on: Public Health Act, RSA 2000, c P-37; Communicable Diseases Regulation, Alta Reg 238/1985; Food Regulation, Alta Reg 31/2006

PDF Version: E. coli and the Public Health Act (Alberta)

The beleaguered public health system in Alberta is back in the spotlight with the devastating E. coli outbreak in Calgary. As of September 19, there were 38 lab-confirmed cases connected to the outbreak, 8 of whom were receiving care in hospital, along with 27 cases of secondary transmission. The outbreak is believed to be linked to daycares that use a central kitchen, although a precise food source has not yet been identified. The kitchen suspected to be the source of the E. coli outbreak has previous public health violations and there are calls for a public inquiry. The particular strain of E. coli involved in this outbreak secretes a toxin that can lead to serious organ damage. Nine children connected with this outbreak have been diagnosed with hemolytic uremic syndrome, which can lead to kidney failure. Continue reading →

Private Health Care and the Law Part 3: Not the Anticipated Conclusion but Still Not a Loss for Public Health Care

By: Kate Perala and Lorian Hardcastle

Decision commented on: Cambie Surgeries Corporation, et al v Attorney General of British Columbia, et al, 2023 CanLII 26745

PDF Version: Private Health Care and the Law Part 3: Not the Anticipated Conclusion but Still Not a Loss for Public Health Care

On April 6, 2023, the Supreme Court of Canada (SCC) dismissed an application for leave to appeal the decision of the BC Court of Appeal in Cambie Surgeries Corporation, et al v Attorney General of British Columbia, et al, 2023 CanLII 26745. Previous blog posts by one of the authors of this post describe the trial decision in detail (see here and here). Many expected that the SCC would hear this case, given the importance of the issues at stake, the strongly-worded concerns with the public health care system expressed by Justice Lauri Ann Fenlon at the BC Court of Appeal (Cambie Surgeries Corporation v British Columbia (Attorney General), 2022 BCCA 245 (CanLII)), and the fact that the SCC’s 2005 decision in Chaoulli v Quebec (Attorney General), 2005 SCC 35 (CanLII), left the constitutionality of limits on private finance in health care unresolved. To many, this decision represents a missed opportunity for the SCC to provide clarity on this defining yet widely-debated feature of our health care system. Continue reading →

Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

By: Lorian Hardcastle and Shaun Fluker

Decision commented on: CM v Alberta, 2022 ABKB 716 (See here for the decision, which was not on CanLII as of the date of writing)

PDF Version: Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

In the winter of 2022, the Alberta government repealed the bulk of its COVID-19 public health measures in an effort to be among the first provinces to re-open. On February 8, 2022, the Premier announced that children would no longer be required to mask in school and, on that same day, the Minister of Education (Adriana LaGrange) issued a written statement that “school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.” Continue reading →