Chilliwack

Court File No.

CHI-S-S-37892

No. _______________
CHILLIWACK REGISTRY

23-Jul-20

IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT
R.S.B.C. 1996, c. 241
BETWEEN
WEI LI
PETITIONER
AND
THE MINISTER OF HEALTH OF BRITISH COLUMBIA
RESPONDENT
BROUGHT UNDER THE JUDICIAL REVIEW PROCEDURE ACT
NOTICE OF APPLICATION
NAME OF APPLICANT:
TO:

Dr. Wei Li

The Respondent

TAKE NOTICE that an application will be made by the applicant to the presiding judge at the
courthouse at 46085 Yale Road, Chilliwack, BC, V2P 2L8, set on the Assize list, to commence
the week of August 4th, 2020 at 10:00 am for the order set out in Part 1 below.
Part 1: ORDER SOUGHT
1. The Applicant seeks an interlocutory injunction restraining the Respondent from operating
in Phase 3 of B.C.’s Restart Plan without implementing a mandatory mask policy in in-door
public environments, including restaurants, bars, hospitals, public transit, retail stores,
educational institutions and theatres, provided that there are appropriate exemptions
available for infants and those who are unable to wear a mask; or
2. In the alternative, the Applicant seeks an interim injunction restraining the Respondent from
operating in Phase 3 of B.C.’s Restart Plan without implementing a mandatory mask policy
in in-door public environments, including restaurants, bars, hospitals, public transit, retail
1

 stores, educational institutions and theatres, provided that there are appropriate exemptions
available for infants and those who unable to wear a mask, until an interlocutory injunction
can be heard on the same terms.
Part 2: FACTUAL BASIS
1. In or around January 28, 2020, health officials in British Columbia announced the first
presumptive case of the novel coronavirus in B.C. (“COVID-19”). On January 30, the World
Health Organization declared the outbreak of COVID-19 a public health event of international
concern.1
2. On March 17, 2020, British Columbia’s Provincial Health Officer declared a “public health
emergency” under the Public Health Act (the “PHA”). The declaration of a public health
emergency provides the government the authority to exercise a range of emergency powers,
including ordering a person(s) to take preventative measures for the purpose of preventing
transmission of an infectious agent.2 The Provincial Health Officer ordered all bars and clubs
to be closed and for people to remain 6 feet apart. Gatherings are capped at 50.
3. On March 18, 2020, the British Columbia government declared a provincial state of emergency
pursuant to section 9(1) of the Emergency Program Act in response to the novel coronavirus
(COVID-19) pandemic.3 Declaring a state of emergency enables the British Columbia
government to do all acts and implement all procedures necessary to prevent, respond to or
alleviate the effects of an emergency.4 The government on July 7, 2020 announced that the
state of emergency will be extended through the end of the day on July 21, 2020. On July 21,
2020, the B.C. government further extended the state of emergency.5 The announcement on
July 21, 2020 marks the tenth time the province has issued and reissued the state of emergency
since the start of the pandemic.
4. On May 6, 2020, Premier John Horgan announced “B.C.’s Restart Plan”, which outlines B.C’s
four-phase formal plan to gradually lift restrictions on businesses in phases, with the objective
of increasing social and economic activity.6 As part of this plan, the Respondent has issued a
series of guidances setting forth certain protocols for different groups and organizations as they
re-open their operations.

1

Coronavirus disease (COVID-19): Outbreak update. Government of Canada. July 20, 2020.
Available online: https://www.canada.ca/en/public-health/services/diseases/2019-novelcoronavirus-infection.html#a1.
2
Public Health Act, SBC 2008 c 28 at section 54 and 56.
3
Province declares state of emergency to support COVID-19 response. BC Gov News. March 18,
2020. Available online: https://news.gov.bc.ca/releases/2020PSSG0017-000511.
4
Emergency Program Act, RSBC 1996, c 111 at section 10.
5
Joint statement on B.C.’s COVID-19 response, latest updates. BC Gov News. July 21, 2020.
Available online: https://news.gov.bc.ca/releases/2020HLTH0038-001338.
6
Premier outlines plan to restart B.C. safely. BC Gov News. May 6, 2020. Available online:
https://news.gov.bc.ca/releases/2020PREM0026-000826.
2

 5. According to the Respondent’s press release issued on May 6, 2020 in respect of B.C.’s Restart
Plan: “A strong emphasis on personal hygiene for all British Columbians, including hand
washing, physical distancing and staying at home if you are sick, will be crucial for the success
of every phase of the plan.”7
6. However, the B.C. government fails to mandate British Columbians to wear a mask. As part of
its advised strategies for keeping transmission low, B.C.’s Restart Plan states that people should
“keep physical distancing, as much as possible, when in the community; and where not possible,
consider using a non-medical mask or face covering.”
7. Protocols as set forth in the Respondent’s COVID-19 Public Health Guidances would suggest
to a reasonable person that masks are not vital for protection, and should only be used as a last
resort. Furthermore, the Public Health Guidances suggest that masks are only effective in
preventing the transmission of COVID-19, but not the acquisition of COVID-19. Below are
excerpts from B.C. government’s Public Health Guidances which demonstrate the
Respondent’s largely inconsistent recommendations on mask-wearing:
a. B.C. Public Health Guidance for Retail Food and Grocery Stores: As of May
19, a variety of businesses and services, including restaurants, cafes, retail stores,
salons and barbershops are allowed to reopen under enhanced protocols. The
guidance issued by the Province of BC in respect of this retail food and grocery
stores fails to recommend or mandate patrons or staff of retail food and grocery
stores to wear a mask.8 Physical distancing and personal hygiene are heavily
emphasized but mask wearing is not part of the guidance.9
b. B.C. Public Health Guidance for Childcare Workers: “Personal protective
equipment such as masks and gloves are not needed in the child care setting,
beyond those used by staff as part of regular precautions for the hazards normally
encountered in their regular course of work. They should only be used when all
other controls have been fully explored. Cloth or non-medical homemade masks
are not recommended. Wearing one is a personal choice. There is no evidence to
support the use of medical grade, cloth or homemade masks in child care settings
at this time. Wearing one is a personal choice.”10
c. B.C. Public Health Guidance for K-12 Schools: “Wearing cloth or homemade
mask, particularly children, is not recommended. There is limited evidence
outside of health care settings and only in uncontrolled situations where physical
distancing between adults cannot be maintained for extended periods of time
7

Ibid.
COVID-19 Guidance to Retail Food and Grocery Stores. BC Ministry of Health. April 25, 2020.
Available online: https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/officeof-the-provincial-health-officer/covid-19/guidance_to_grocery_stores_april_25_final.pdf.
9
Ibid.
10
COVID-19 Public Health Guidance for Child Care Settings. BC Ministry of Health. May 19,
2020. Available online: https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-caresystem/office-of-the-provincial-health-officer/covid-19/covid-19-pho-guidance-childcare.pdf.
8

3

 (greater than 15 minutes who has probable or lab confirmed COVID-19). Wearing
one is a personal choice.”11 There is no evidence to support the use of medical
grade, cloth or homemade masks in school settings at this time.
d. B.C. Public Health Guidance for Protecting Farm Workers12, Temporary
Foreign Workers and Social Service Providers During COVID-19 Pandemic:
“The use of a homemade mask should only be considered by members of the
public who are symptomatic or caring for someone who is symptomatic as an
interim measure if commercial masks are not available. It may be less effective to
wear a mask in the community when a person is not sick themselves. Masks may
give a person a false sense of security and are likely to increase the number of
times a person will touch their own face (e.g., to adjust the mask). Any mask, no
matter how efficient at filtration or how good the seal, will have minimal effect if
it is not used together with other preventive measures, such as frequent hand
washing and physical distancing.13
8.

9.

On May 22, 2020, the Provincial Health Officer issued an Order under the Public Health Act
permitting gatherings of up to 50 people indoor or outdoor, subject to certain rules. The rules
set forth in the order do not require anyone in a gathering of up to 50 people to wear a
mask.14
Since the lifting of restrictions, B.C. has seen a steady increase in the number of infections.
July has experienced a record number of new cases since May 8 (where 29 people were
diagnosed).15

11

COVID-19 Public Health Guidance for K-12 School Settings. BC Ministry of Health. May 19,
2020. Available online: https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-caresystem/office-of-the-provincial-health-officer/covid-19/covid-19-pho-guidance-k-12-schools.pdf.
12
Protecting Farm Workers and Temporary Foreign Workers During the COVID-19 Pandemic.
BC Ministry of Health. May 13, 2020. Available online:
https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincialhealth-officer/covid-19/covid-19-pho-guidance-farms-farm-workers.pdf.
13
Interim Guidance to Social Service Providers for the Prevention and Control of COVID-19 in
their Facilities. BC Ministry of Health. April 4, 2020. Available online:
https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincialhealth-officer/covid-19/covid-19-pho-guidance-social-service-providers.pdf.
14
Order of the Provincial Health Officer: Mass Gatherings. BC Ministry of Health. May 22, 2020.
Available online: https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/officeof-the-provincial-health-officer/reports-publications/covid-19-pho-class-order-mass-gatherings.pdf.
15
Kathryn Tindale, Fourth straight day of increased COVID-19 cases in B.C. News 1130. July 10,
2020. Available online: https://www.citynews1130.com/2020/07/10/fourth-straight-day-ofincreased-covid-19-cases-in-b-c/.
4

 10.

From July 9 to July 20, 10 out of 12 days had an increase of at least 20 new cases per day.
Date
July 7, 2020
July 8, 2020
July 9, 2020
July 10, 2020
July 11, 2020
July 12, 2020
July 13, 2020
July 14, 2020
July 15, 2020
July 16, 2020
July 17, 2020
July 18, 2020
July 19, 2020
July 20, 2020

Reported Cases Per Day in B.C.
12
18
20
25
21
20
21
13
21
21
28
33
19
32

11. Over the weekend of July 17 to July 20, B.C. experienced a substantial spike of 102 new
confirmed cases.16 Accordingly, twenty percent (20%) of COVID-19 patients in long-term care
and twenty-two percent (22%) in acute care units of hospitals have died from COVID-19.
12. As of July 20, there are a total of 3,300 reported cases in B.C. 189 people have died from the
disease.
13. It should be noted that B.C.’s testing rate is the lowest in the country, outside of Nunavut and
Yukon.17
14. As of July 20, 2020, B.C. had administered 38,967 tests per million, which is significantly lower
than the national average of 92,715 tests per million.18 In contrast, Ontario had administered
122,428 tests per million and Alberta had administered 109,710 tests per million.19 Ontario and
Alberta have the first and second highest testing rates, respectively.
15. While provinces such as Ontario have devised strategies for testing asymptomatic people20,
B.C. has advised that “only people with symptoms or people otherwise identified by a health
16

Bethany Lindsay, B.C. warned of potential for ‘explosive growth’ as 102 new COVID-19 cases
from over the weekend announced. CBC News. July 20, 2020. Available online:
https://www.cbc.ca/news/canada/british-columbia/bc-covid-update-july-20-1.5655625.
17
Ibid.
18
Ibid.
19
Ibid.
20
Carly Weeks, Ontario to announce new testing strategy to target asymptomatic people in high
risk groups. Globe and Mail. May 24, 2020. Available online:
https://www.theglobeandmail.com/canada/article-ontario-testing-to-target-asymptomatic-carriersin-high-risk-jobs/.
5

 professional should be tested for COVID-19.”21 Accordingly, “routine testing of asymptomatic
people is not recommended in BC (e.g. in schools, prior to surgery or other procedures, or as a
condition of employment or for travel.” It reasons that “if large numbers of false positive tests
were to occur through routine testing of asymptomatic people, this could create a significant
burden for the public health system.”22 In doing so, the Respondent neglects the fact that the
failure to detect a large number of asymptomatic infections could create an even greater burden
for the public health system.
16. The low testing rate has contributed to the low number of reported COVID-19 cases in British
Columbia. The impact of COVID-19 is significantly more serious than what the reported
numbers may reveal. A recent study of July 13, 2020 by researchers at the B.C. Centre for
Disease Control shows that the actual number of people infected with COVID-19 in B.C. are 8
times higher than the reported numbers.23 The study estimates that the actual number of
infections in B.C. are closer to 16,500. Furthermore, the study highlights that most B.C.
residents remain “substantially susceptible to infection.”24
17. By failing to widely test the public, particularly, asymptomatic individuals, the Respondent
knowingly and willingly suppresses the number of reported cases in the province by significant
proportions. Artificially suppressed numbers provide people with a false sense of security that
there is low risk of spread in B.C. This in turn lessens their desire to take preventative measures,
which further endangers public health.
18. Dr. Wei Li, the Applicant, has been a family physician for 14 years. She has continued to treat
patients throughout COVID-19 and has been seeing patients in person at her clinic and at the
hospital.
19. Given the re-opening of the B.C. society, together with the resurgence of COVID-19 infections
in Canada and abroad, the Applicant is deeply concerned for the state of public health and for
the health and safety of her patients, her family, her colleagues and herself.
20. Her concerns are similarly echoed by a large group of doctors and scientists across Canada
(www.masks4canada.org) who view the current lack of universal masking as a public health
hazard.

21

PHO Advice to business seeking to conduct private testing of asymptomatic employees. BC
Ministry of Health. June 27, 2020. Available online:
https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincialhealth-officer/covid19/pho_letter_testing_in_industry.pdf?bcgovtm=20200506_GCPE_AM_COVID_11_NOTIFICAT
ION_BCGOVNEWS_BCGOV_EN_BC__NOTIFICATION.
22
Ibid at page 1.
23
Danuta M Skowronski et al., Low SARS-CoV-2 sero-prevalence based on anonymized residual
sero-survey before and after first wave measures in British Columbia, Canada, March-May 2020.
July 13, 2020. Available online:
https://www.medrxiv.org/content/10.1101/2020.07.13.20153148v1.full.pdf (pp. 2, 10).
24
Ibid at page 14.
6

 Lack of a compulsory mask policy endangers the health of the public and front-line workers
21. There is strong evidence that COVID-19 may be transmitted via asymptomatic, presymptomatic and paucisymptomatic spread. Studies show that the majority of infected
individuals (ranging from 44%25 and more) have been found to be asymptomatic or presymptomatic. For example, a total of 130 of 166 new infections (78%) identified in the 24 hours
to the afternoon of April 1, 2020 were asymptomatic, according to China’s National Health
Commission.26 In an Italian village 50 km west of Venice, 50-75% of cases were
asymptomatic.27 Similarly, a universal screening for COVID-19 in women admitted for
delivery found that 88% of COVID-19 infected patients were presymptomatic or
asymptomatic.28
22. The prevalence of asymptomatic spread makes universal masking an essential means to stop
the spread of COVID-19. The Respondent endangers public health by failing to provide strong,
clear and consistent recommendations in respect of the urgent need for widespread masking in
public in-door environments where the risk of transmission is high.
23. There is limited evidence to suggest that there is harm arising from mask-wearing by healthy
individuals. On the other hand, there is overwhelming evidence demonstrating the efficacy of
masks29 in: 1) preventing acquisition of COVID-19 infections, and 2) preventing transmission
of COVID-19 by infected wearers who may be asymptomatic or pre-symptomatic.30 In fact,
studies suggest that universal mask wearing is the most effective measure to combat COVID19:
a. A study published in a Cornell University open-access archive (arxiv.org) on
April 22, 2020, indicated that an 80% mask-wearing compliance in a population
would be more effective in halting the spread of COVID-19 than a near-complete
25

Shujuan Ma et al., Epidemiological parameters of coronavirus disease 2019: a pooled analysis
of publicly reported individual data of 1155 cases from seven countries. March 24, 2020.
Available online: https://www.medrxiv.org/content/10.1101/2020.03.21.20040329v1.full.pdf.
26
Michael Day, COVID-19: Four fifth of cases are asymptomatic, China figures indicate. The
BMJ. April 2, 2020. Available online: https://www.bmj.com/content/bmj/369/bmj.m1375.full.pdf.
27
Michael Day, COVID-19: Identifying and isolating asymptomatic people helped eliminate virus
in Italian village. The BMJ. March 23, 2020. Available online:
https://www.bmj.com/content/368/bmj.m1165.
28
Desmond Sutton et al., Universal screening for SARS-CoV-2 in women admitted for delivery.
Columbia University Irving Medical Center. April 13, 2020. Available online:
https://www.nejm.org/doi/full/10.1056/NEJMc2009316?query=featured_home&fbclid=IwAR34ds
5WzQUdZucpVScF_PExT2iS15-hJFmyskIZ2uY-ZdqJ7h9sBjIOtac.
29
Derek K Chu et al., Physical distancing, face masks, and eye protection to prevent person-toperson transmissions of SARS-CoV-2 and COVID-19: a systematic review and meta-analysis. June
1, 2020. Available online: https://www.thelancet.com/pdfs/journals/lancet/PIIS01406736(20)31142-9.pdf.
30
David N Fisman et al., Bidirectional impact of imperfect mask use of reproduction number of
COVID-19: A next generation matrix approach. June 04, 2020. Available online:
https://www.sciencedirect.com/science/article/pii/S2468042720300191.
7

 lockdown;31
b. University of California San Francisco infectious disease expert Dr. Peter ChinHong stated in an university publication on June 26, 2020 that of the three most
important measures to prevent transmission of COVID-19 (handwashing,
physical distancing, and wearing a mask), he recommends wearing a mask: “But
of the three, the most important thing is wearing a mask.” He reasons that “there
is little evidence that fomites (contaminated surfaces) are a major source of
transmission, whereas there is a lot of evidence of transmission through inhaled
droplets.”32
c. Although the Respondent’s guidance on mask-wearing suggests that maskwearing only protects others from the wearer, a meta-analysis of 172 studies from
16 countries published in the Lancet on June 1, 2020 indicated that masks can
decrease the risk of infection for the wearer himself by up to 65%.33
d. A paper published on July 7, 2020 by MIT economics professor Victor
Chernozhukov, UBC economics professor Hiroyuki Kasahara, and UBC
economics associate professor Paul Shrimpf evaluates the dynamic impact of
various policies adopted by U.S. states, including the effect of a national policy to
mandate face masks for employees of public businesses. Such a policy, the
researchers found, would have reduced new COVID-19 cases and deaths by more
than 10-percent in April alone and could have resulted in “as much as 17-55%
less deaths nationally by the end of May, which roughly translates into 17,000 to
55,000 saved lives”.34
e. In a study published on June 11, 2020 in the Proceedings of the National Academy
of Sciences of the U.S.A, researchers analyzed the trend and mitigation measures
across three main epicentres: Wuhan (China), Italy and New York City from
January 23 to May 9, 2020. Their study revealed that the difference with and
without mandated face covering represents the “determinant in shaping the
pandemic trends in the three epicentres.” This protective measure alone
31

De Kai et al., Universal masking is urgent in the COVID-19 pandemic: SEIR and agent based
models, empirical validation, policy recommendations. Cornell University. April 21, 2020.
Available online: https://arxiv.org/pdf/2004.13553.pdf.
32
Nina Bai, Still confused about masks? Here’s the science behind how face masks prevent
coronavirus. University of California San Francisco. June 26, 2020. Available online:
https://www.ucsf.edu/news/2020/06/417906/still-confused-about-masks-heres-science-behindhow-face-masks-prevent
33
Derek K Chu et al., Physical distancing, face masks, and eye protection to prevent person-toperson transmissions of SARS-CoV-2 and COVID-19: a systematic review and meta-analysis. June
1, 2020. Available online: https://www.thelancet.com/pdfs/journals/lancet/PIIS01406736(20)31142-9.pdf.
34
Victor Chernozhukov et al., Casual impact of masks, policies, behavior on early COVID-19
pandemic in the U.S. May 27, 2020. Available online:
https://www.medrxiv.org/content/10.1101/2020.05.27.20115139v5.
8

 “significantly reduced the number of infections – that is, by over 78,000 in Italy
from April 6 to May 9 and over 66,000 in New York City from April 17 to May
9.35
24. In contrast to the universal masking policies advocated by science, the Respondent heavily
emphasizes “social distancing” as a preventative measure to stop transmission. According to
the Respondent in various public guidances and statements, an individual only needs to wear a
mask when “keeping a safe distance is difficult.”36 The reality is, however, social distancing is
not always feasible or practical in public spaces, even ones that are not crowded. Furthermore,
an individual cannot possibly predict when social distancing will suddenly become “difficult”
as people are mobile. When an individual realizes that someone has come too close to them, it
may be too late to put on a mask and the transmission may have already occurred.
25. Therefore, advising the public to only put on a mask as a last resort, rather than a first resort,
devalues the efficacy and importance of masking. Such guidance blatantly disregards the fact
airborne transmission of COVID-19 is “highly virulent” and represents the “dominant route to
spread the disease.”37 It also misleads the public into thinking that social distancing is more
effective than masking, when the latter is in reality the more important preventative measure to
take. Studies have concluded that “social distancing, quarantine, hand sanitizing and
minimizing contact transmission alone “do not protect against airborne transmission.”38
Universal masking is necessary.
26. Delaying universal mask adoption while re-opening the economy endangers public health.
Research modelling suggests that “without universal masking, but even with continued social
distancing in place once the lock-down is lifted, the infection rate will increase and almost half
of the population will become infected.”39
27. In order to ensure universal mask usage is sufficient to halt COVID-19, a mandatory masking
policy is necessary unless the country has an established masking culture.40 Studies confirm

35

Renyi Zhang et al., Identifying airborne transmission as the dominant route for the spread of
COVID-19. Proceedings of the National Academy of Sciences of the USA. June 30, 2020.
Available online: https://www.pnas.org/content/117/26/14857.
36
Joint statement on B.C.’s COVID-19 response, latest updates. BC Gov News. July 21, 2020.
Available online: https://news.gov.bc.ca/releases/2020HLTH0038-001338.
37
Renyi Zhang et al., Identifying airborne transmission as the dominant route for the spread of
COVID-19. Proceedings of the National Academy of Sciences of the USA. June 30, 2020.
Available online: https://www.pnas.org/content/117/26/14857.
38
Renyi Zhang et al., Identifying airborne transmission as the dominant route for the spread of
COVID-19. Proceedings of the National Academy of Sciences of the USA. June 30, 2020.
Available online: https://www.pnas.org/content/117/26/14857.
39
De Kai et al., Universal masking is urgent in the COVID-19 pandemic: SEIR and agent based
models, empirical validation, policy recommendations. Cornell University. April 21, 2020.
Available online: https://arxiv.org/pdf/2004.13553.pdf.
40
Ibid at page 11.
9

 that mandatory masking increases compliance compared to voluntary recommendations.41 In
other words, voluntary masking is ineffective as it does not result in widespread masking
sufficient to suppress the epidemic. This is in part due to the fact that voluntary compliance is
strongly influenced by public perception regarding the effectiveness of the recommended
measures.42 Public perception is shaped over time and also changes over time. Consequently,
this means that public behaviour towards voluntary masking may be unpredictable and hard to
influence over a short period of time.
28. Voluntary masking is even more so ineffective when the Respondent has since March ingrained
into the public psyche that mask-wearing: 1) is “minimally effective”43; 2) should only be used
as a last resort when other preventative control measures (e.g. physical distancing) are not
possible; 3) there is insufficient evidence about the benefits; 4) is only necessary for those who
show symptoms; and 5) can lead to other negative effects, such as touching one’s face too often.
Only in late June and early July did the Respondent start to more actively encourage
“everybody” to wear a mask on public transit.44 However, it remains non-compulsory to do so.
Meanwhile, the official guidance for certain sectors (e.g. the food service industry) has not been
changed to require or strongly encourage them to wear a mask when serving the public.
29. Such inconsistent and misleading guidance issued by both the federal government and the
Respondent since the beginning of the pandemic has increased public confusion and reduced
confidence in the efficacy of masks.
30. Indeed, the majority of Canadians (55%) fail to voluntarily wear masks despite the fact that
59% of the respondents in the same survey state that they are worried about contracting
COVID-19.45 This means that current public mask usage is less than the required percentage
needed (i.e. 80%)46 to have a significant impact on reducing the spread of COVID-19.

41

Jeremy Howard et al., Face masks against COVID-19: An evidence review. April 2020.
Available online:
https://www.researchgate.net/publication/340603522_Face_Masks_Against_COVID19_An_Evidence_Review.
42
Ibid.
43
Interim Guidance to Social Service Providers for the Prevention and Control of COVID-19 in
their Facilities. BC Ministry of Health. April 4, 2020. Available online:
https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincialhealth-officer/covid-19/covid-19-pho-guidance-social-service-providers.pdf.
44
Eric Zimmer, “Absolutely everybody” on transit should wear a mask: Dr. Bonnie Henry. Daily
Hive. July 17, 2020. Available online: https://dailyhive.com/vancouver/dr-bonnie-henry-transitmasks.
45
COVID-19: Canadian concern over falling ill on the rise again. Angus Reid Institute. Published
on July 16, 2020. Online: http://angusreid.org/covid-concern-rising/.
46
De Kai et al., Universal masking is urgent in the COVID-19 pandemic: SEIR and agent based
models, empirical validation, policy recommendations. Cornell University. April 21, 2020.
Available online: https://arxiv.org/abs/2004.13553.
10

 31. Given the foregoing, the Respondent knows or ought to have known that continuing to re-open
the economy (via B.C.’s Restart Plan) with only a voluntary mask policy would likely interfere
with the suppression of COVID-19 and endanger public health.
32. The Respondent’s actions also endanger the health of front-line workers, such as the Applicant,
who are the first to treat and see individuals who may be pre-symptomatic or asymptomatic
carriers of COVID-19. Due to the nature of their jobs, healthcare workers are disproportionately
affected by COVID-19 and have a much higher risk of contracting the disease. It was reported
as of May 4, 2020 that healthcare workers represented about 21-percent of the virus cases
reported in B.C.47 The Applicant is persistently worried and anxious that her community, her
loved ones and herself may contract COVID-19. The fear of contracting COVID-19 has also
negatively impacted her mental and emotional well-being.
33. Re-opening communities while failing to require citizens to wear masks in public during a
global pandemic is akin to allowing everyone to drive in a windowless car at 300 km/hour in a
hurricane without the need to wear a seatbelt.
34. Recent modelling projections reveal that B.C. is on the brink of a COVID-19 resurgence.48
35. The government has in the past, for the purposes of mitigating major health concerns,
intervened by requiring citizens to engage in positive acts, such as imposing mandatory
seatbelts. The time has arrived for B.C. to impose mandatory masking before it is too late.
36. The best cure for COVID-19 is prevention. A proactive and aggressive approach is needed to
prevent a resurgence. As seen in the U.S. and elsewhere, a reactive approach will only endanger
public health and lead to further deaths in the community.
Part 3: LEGAL BASIS
37. The Applicant relies on Rules 10-4(1) and (2) of the Supreme Court Civil Rules, section 10
of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, and section 39(1) of the Law
and Equity Act, R.S.B.C. 1996, c. 253 to seek an interlocutory injunction in advance of filing
a petition.
38. An interlocutory injunction restrains and enjoins wrongful acts. This Court should grant an
interlocutory injunction where:
i.
ii.

There is a fair or serious question to be tried;
Unless an injunction is granted, the harm created by the Respondent’s conduct is
irreparable; and

47

Alyse Kotyk, This is how many health-care workers have contracted COVID-19 in B.C. CTV
News. May 4, 2020. Available online: https://bc.ctvnews.ca/this-is-how-many-health-careworkers-have-contracted-covid-19-in-b-c-1.4924404.
48
Justin McElroy, Why B.C. will be ‘right on the brink’ of a COVID-19 resurgence for months to
come. CBC News. June 27, 2020. Available online: https://www.cbc.ca/news/canada/britishcolumbia/covid-19-june-look-forward-phase-3-1.5629722.
11

 iii.

The balance of convenience favours granting an injunction.49

39. All three conditions are met here. Lifting quarantine measures without requiring the public
to wear masks endangers public health and causes new COVID-19 infections to occur. The
Respondent has caused a health hazard by permitting the public to use public transit or serve
food at restaurants or bars without a mask on. The Public Health Act prohibits the Respondent
from acting in a manner in which they know or ought to know will cause a health hazard.50
The Respondent has admitted that B.C. may experience an “explosive growth” in cases51 if
precautions are not taken. The Respondent knows or ought to know that asymptomatic
infections account for a significant portion of new cases and that widespread masking is
essential for preventing asymptomatic spread. Yet the Respondent has re-opened B.C.
without implementing the most effective measure - mandated face coverings.
40. Exponential growth may potentially mirror that of the U.S. which has 3.8 million confirmed
cases and more than 140,000 COVID related deaths as of July 20, 2020.52
(i) There is a fair question to be tried - the Respondent has contravened Section 15 of the
Public Health Act.
41. In order for the Applicants to establish a "fair" or "serious" question to be tried, the Court
must be satisfied that the case is neither frivolous nor vexatious.53
42. Section 15 of the Public Health Act states that a person must not willingly cause a health hazard,
or act in a manner that the person knows, or ought to know, will cause a health hazard.
43. Pursuant to section 1 of the Public Health Act, a “health hazard” means (a) a condition, a thing
or an activity that (i) endangers, or is likely to endanger, public health, or (ii) interferes, or is
likely to interfere, with the suppression of infectious agents or hazardous agents, or (b) a
prescribed condition, thing or activity, including a prescribe condition, thing or activity that (i)
is associated with injury or illness, or (ii) fails to meet a prescribed standard in relation to health,
injury or illness.
44. The Respondent’s decision to lift restrictions (via Phase 3 of B.C.’s Restart Plan) during a state
of emergency without implementing a universal masking policy endangers public health and
the health of front-line health workers, such as the Applicant. The Respondent’s conduct

49

RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311 ("RJR"); Attorney
General v. Wale, 9 B.C.L.R. (2d) 333 (C.A.) aff'd [1991] 1 S.C.R. 63.
50
Public Health Act, SBC 2008, c 28 at section 15.
51
David Carigg, COVID-19: Situation worsens in B.C. with 102 new cases. The Province. July 21,
2020. Available online: https://theprovince.com/news/local-news/covid-19-situation-worsens-in-bc-with-102-new-cases/wcm/aaa38159-3750-4af4-bbec-27eb8917a3d9.
52
Cases in the U.S., Center for Disease Control and Prevention. July 21, 2020. Available online:
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
53
RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311 ("RJR"); Attorney
General v. Wale, 9 B.C.L.R. (2d) 333 (C.A.) aff'd [1991] 1 S.C.R. 63.
12

 interferes with the suppression of COVID-19’s spread in the community. It is a decision that is
grossly negligent and contrary to section 15 of the Public Health Act.
45. Accordingly, there is a fair question to be tried.
(ii) Irreparable Harm will ensue if an injunction is not granted
46. An interlocutory injunction is available if the harm is of such seriousness and of such nature
that any redress available after trial would not be fair or reasonable. In other words, the remedy
by damages is not such a compensation as will in effect, though not in specie, place the parties
in the position in which they formerly stood.54
47. Clear proof of irreparable harm is not required. Doubt as to the adequacy of damages as a
remedy suffices.55 The requirement that there be doubt as to whether damages will be an
adequate remedy is basically a matter of “common sense.”56 Alternatively, irreparable harm
exists where damages would be “extremely hard to quantify.”57
48. COVID-19 is a highly infectious virus that causes debilitating symptoms in the human body,
including high fevers, pneumonia, thrombotic illness, muscle pain and difficulty breathing.58
It is a deadly disease. As of July 22, 2020, it has caused more than 600,000 deaths around the
world. In Canada, there are 3,616,728 people who have tested positive for COVID-19 and
8,862 people have died from the disease.59
49. Individuals who ‘recover’ from COVID-19 continue to suffer long-term debilitating and
irreversible damage to their bodies, including lung scarring60, cardiovascular issues, blood
clotting, and damaged kidney and liver function.61
50. There is no doubt that COVID-19 causes material harm that is so serious in its nature, it
cannot be compensated with damages. No amount of money can restore the mental and
54

MacMillan Bloedel Ltd v. Mullin, (1985) 61 BCLR 145, [1985] 3 WWR 577 (BCCA) at para 68.
American Cyanamid Co v. Ethicon Ltd, [1975] AC 396, [1975] 1 All ER 504 (HL) as restated in
British Columbia (Attorney General) v. Wale, 2 ACWS (3d) 301 at para 48 and 51, 9 BCLR (2d)
333 (BCCA).
56
Ibid.
57
Telus Communications Co v. Rogers Communications Inc., 2009 BCSC 1610 at para 44, aff’d
2009 BCCA 581.
58
Symptoms of COVID-19., BC Centre for Disease Control. Available online:
http://www.bccdc.ca/health-info/diseases-conditions/covid-19/about-covid-19/symptoms.
59
Coronavirus disease (COVID-19): Outbreak update, Government of Canada. Available online:
https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html.
60
David Cox, Some patients who survive COVID-19 may suffer lasting lung damage. Science
News. April 27, 2020. Available online: https://www.sciencenews.org/article/coronavirus-covid19-some-patients-may-suffer-lasting-lung-damage.
61
What are the potential long-term effects of having COVID-19. CTV News. June 16, 2020.
Available online: https://www.ctvnews.ca/health/coronavirus/what-are-the-potential-long-termeffects-of-having-covid-19-1.4985944.
55

13

 physical health of an individual who has suffered or died from COVID-19.
51. Absent the injunction, the number of COVID-19 infections and deaths will continue to
increase in tandem with the increase in social and economic activity as permitted in Phase 3
of B.C.’s Restart Plan. According to the Respondent in a press release issued on July 21,
2020, “many of the new cases are a result of community transmission from an increase in
social interactions this summer.”62
52. The modelling by the B.C. Centre for Disease Control released on July 20, 2020 reveals that
the number of new cases reported daily could continue to rise over the summer as more
businesses open up in Phase 3 of B.C.’s Restart Plan.63 The new modelling also suggests that
each new infection is now generating an increasing number of additional infections.64
53. Specifically, according to Dr. David Fisman, a leading epidemiologist and professor at the
University of Toronto, the rate of transmission in B.C. as of July 20, 2020 is 1.81.65 This
represents the second highest rate of transmission in Canada, where the overall rate of
transmission is 1.34 as of July 20, 2020.
54. The rate of transmission has been consistently increasing in B.C. A week prior, on July 13,
2020 it was reported that the B.C. rate of transmission ranked third in Canada at 1.72
whereas, the overall rate of transmission in Canada was 1.37.66
55. In contrast, in April and May, when the strictest measures were in place, each new COVID19 patient infected less than one person (i.e. rate of transmission was below 1).67
56. Given the plethora of publicly available scientific evidence, health data and statistical
information, the Respondent fully knows or ought to know that:
a. The increase of social and economic activity increases the risk of further waves
of infections in B.C., similar to those experienced by other countries around the
world;
b. Mandatory masking is a necessary measure for preventing and reducing
62

Joint statement on B.C.’s COVID-19 response, latest updates. BC Gov News. July 21, 2020.
Available online: https://news.gov.bc.ca/releases/2020HLTH0038-001338.
63
COVID-19: Going Forward. Modelling Update prepared for the BC Ministry of Health. July 20,
2020. Available online: https://news.gov.bc.ca/files/Covid19-Modelling_Update.pdf.
64
Ibid at page 9.
65
Rate of Transmission Numbers as of July 20, 2020 as reported by Dr. David Fisman on Twitter:
https://twitter.com/DFisman/status/1285370940768096259?s=20. Note: The R(t) estimate is
generated using publicly available data with the code making use of Luis M.A. Bettencourt’s
Bayesian method (https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0002185).
66
Rate of Transmission Numbers as of July 13, 2020 as reported by Dr. David Fisman on Twitter:
https://twitter.com/DFisman/status/1282862787715387392/photo/1.
67
Bethany Lindsay, B.C. warned of potential for ‘explosive growth’ as 102 new COVID-19 cases
from over the weekend announced. CBC News. July 20, 2020. Available online:
https://www.cbc.ca/news/canada/british-columbia/bc-covid-update-july-20-1.5655625.
14

 transmissions particularly from asymptomatic or pre-symptomatic carriers;
c. The continued spread of COVID-19 will cause irreparable harm to the health of
the community and the economy;68and
d. Healthcare workers such as the Applicant face a significantly increased risk of
COVID-19 infection, particularly when there is an explosive growth of
transmissions.
57. By reopening the economy without imposing a mandatory mask policy, the Respondent has
knowingly and willingly interfered with the suppression of the virus in B.C.
58. Notably, the Respondent admitted on July 20, 2020 that there is a “concerning upward
bending of our curve” and that there is a possibility of “explosive growth” of COVID-19 in
B.C.”69
59. The Applicant, due to the nature of her job, will invariably be more likely to contract the
disease via interactions with patients, if there is an explosive growth of transmissions in B.C.
The Applicant’s likelihood of contracting COVID-19 increases as community interactions
increase without widespread masking. The fear of contracting the disease via asymptomatic
transmissions through the course of her job, and subsequently, infecting her family, causes
further irreparable harm to the Applicant’s mental and emotional well-being.
60. The evidence demonstrates a real probability that irreparable harm will result unless an
injunction is granted.
(iii) Balance of Convenience favours the Applicant, which faces irreparable harm
61. When evaluating the balance of convenience, this Court must determine whether the harm to
the Applicant from refusing the injunction would be greater than the harm to the Respondent
from granting the injunction. The factors this Court must consider include:
a. The adequacy of damages as a remedy to (i) the Applicant if the injunction is not
granted and (ii) the Respondent if the injunction is granted;
b. Which party altered the status quo;
c. The public interest; and
d. The strength of the Applicant’s case.70
62. All of the above factors support an injunction here:
a. Adequacy of Damages: If an injunction is refused and the Applicant prevails at
trial, it will not be possible to compensate the Applicant for the physical and/or
68

COVID-19: Going Forward. Modelling Update prepared for the BC Ministry of Health by the
B.C. Centre for Disease Control. July 20, 2020. Available online:
https://news.gov.bc.ca/files/Covid19-Modelling_Update.pdf at page 16 to 18.
69
Bethany Lindsay, B.C. warned of potential for ‘explosive growth’ as 102 new COVID-19 cases
from over the weekend announced. CBC News. July 20, 2020. Available online:
https://www.cbc.ca/news/canada/british-columbia/bc-covid-update-july-20-1.5655625.
70
Canadian Broadcasting Corp v CKPG Television Ltd., 1992 CanLll 560 (BCCA).
15

 mental harm caused by COVID-19 or from the fear of contracting COVID-19.
This potential mental and physical harm is not quantifiable. The only adequate
remedy is an interlocutory injunction. The Applicant will suffer mental and
emotional harm to the extent that B.C. continues to operate Phase 3 of the B.C.
Restart Plan without mandated masking. B.C.’s action threatens the life and the
livelihood of the Applicant and other front-line workers who have bravely put
their lives at risk to treat patients during a pandemic while everyone else was
safely quarantined in their homes. It is unconscionable to lift quarantine
measures without implementing the most effective preventative measure to date
– mandatory masking. Such a decision throws away all the hard-work and
sacrifice of front-line workers in the last 4 months and places them in a position
of significant risk and potential harm again should an explosive growth occur.
Should the potential harm caused by a second wave of COVID-19 materialize,
the injury to the Applicant will be impossible to quantify. Conversely, if the
injunction is granted but the Applicant’s case fails, the Respondent will not
suffer damages – either quantifiable or non-quantifiable. During a global
pandemic and a state of emergency, there are no possible costs or damages
arising from the implementation of necessary and effective measures such as
mandatory masking. Furthermore, there is no evidence to suggest that the use
of masks on a daily basis will cause harm to the public. The benefits of universal
masking far outweigh certain trivial downfalls of masking, such as skin
irritation. This is further demonstrated by the well-established fact that doctors
wear masks daily for significant periods of time over the course of many years
without experiencing any health harms.
b. Status Quo: The Respondent’s conduct alters the status quo. B.C. has worked
hard to flatten the curve and reduce transmissions via strict quarantine measures
from mid-March to Mid-May. In June, the Respondent lifted restrictions set
forth in Phase 3 of B.C.’s Restart Plan without imposing compulsory masking.
In doing so, the Respondent has willingly and knowingly caused the rate of
transmission to increase again to the point where explosive growth of infections
is now a feasible reality. The Public Health Act prohibits the Respondent from
causing a health hazard. The Respondent has done just that. An injunction will
preserve the status quo – in which B.C. maintains a flat rate of growth, as it did
prior to the implementation of Phase 3. An injunction will also prevent
additional COVID-19 deaths from occurring. Preserving life is essential to
maintaining the status quo.
c. Public Interest: The public interest favours the granting of an injunction. An
Angus Reid Institute poll published on July 16, 2020 demonstrated that:
i. A significant portion of Canadians remain worried about contracting
COVID-19 (71% of people aged 51 and over; 41% of people aged 1834); and
ii. 73% of British Columbians support mandatory masking. However,
support for mandatory mask policy is higher than the rate of personal
16

 use.71
Therefore, the public interest would be better served by restraining the Province
from operating in Phase 3 without implementing a mandatory mask policy for
in-door spaces.
d. Strength of case: As set out above, the Applicant’s case is more than strong
enough to satisfy the test for an injunction. The Respondent’s position is
untenable given that there is clear, express legislation to prevent exactly the
health hazard the Respondent is creating.
63. The balance of convenience weighs heavily toward granting the injunction.
Part 4: MATERIAL TO BE RELIED ON
1.

Affidavit #1 of Akiko Nishimura, sworn on July 22, 2020.

2.

Affidavit #2 of Dr. Li Wei, sworn on July 21, 2020.

3.

Such further and other material as counsel may advise and this court may allow.

The applicant estimates that the application will take 1 day.
[ ]

This matter is within the jurisdiction of a master

[X]

This matter is not within the jurisdiction of a master.

TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond to
this Notice of Application, you must, within 5 business days after service of this Notice of
Application or, if this application is brought under Rule 9-7, within 8 business days after service of
this Notice of Application,
(a) file an Application Response in Form 33,
(b) file the original of every affidavit, and of every other document, that
(i)

you intend to refer to at the hearing of this application, and

(ii) has not already been filed in the proceeding, and
(c) serve on the applicant 2 copies of the following, and on every other party of record one

copy of the following:
71

COVID-19: Canadian concern over falling ill on the rise again. Angus Reid Institute. Published
on July 16, 2020. Online: http://angusreid.org/covid-concern-rising/.
17

  a copy of the ?led Application Response;

(ii) a copy of each of the ?led af?davits and other documents that you intend to refer to
at the hearing of this application and that has not already been served on that person;

if this application is brought under Rule 9-7, any notice that you are required to give

under Rule 

Dated: July 22, 2020. *1 

 


Lawyer for the Applicant
Lawrence Wong Kailin Che
c/o Lawrence Wong Associates
#210 - 2696 Granville Street
Vancouver, BC. V6H 3H4
Phone: 604-739-0118 Fax: 604-739?01 17

 

To be completed by the court only:

Order made
in the terms requested in paragraphs of Part 1 of this Notice of
Application

with the following variations and additional terms:








Date:



Signature of ]Judge ]Master

 

 

 

18

Appendix

THIS APPLICATION INVOLVES THE FOLLOWINGdiscovery: comply with demand for documents
discovery: production of additional documents
other matters concerning document discovery
extend oral discovery

other matter concerning oral discovery

amend pleadings

add/change parties

summary judgment

summary trial

service

mediation

adj ournments

proceedings at trial

case plan orders: amend

case plan orders: other

experts

none of the above

19