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Province overruled Alberta's CMOH in masking order, ruling finds

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The Alberta Court of King's Bench has found the Alberta government's decision to block school boards from imposing their own mask mandates "was made for improper purposes" and "unreasonable."

The case was filed by the Alberta Federation of Labour (AFL) and a group of children whose parents say they are "at heightened risk of severe outcomes" from contracting COVID-19.

Both groups contend that Alberta's Chief Medical Officer of Health Dr. Deena Hinshaw's decision to rescind a masking order in Alberta schools was not her own and rather a decision from the then-Kenney government.

Furthermore, it said Education Minister Adriana LaGrange overstepped her authority when she ordered that Alberta school boards could not impose their own mask mandates.

The court decision agreed with both of those elements of the applicants' case.

"I find that, while the Order was issued by the Chief Medical Officer of Health, that order merely implemented a decision of a committee of cabinet, rather than being the Chief Medical Officer's own decision," Justice G.S. Dunlop wrote in the decision.

LaGrange's statement, which stated that school boards would not be able to impose their own masking requirements, had no affect on the issue, Dunlop wrote.

"While Minister LaGrange's statement on its face appears to prohibit school boards from imposing mask mandates, it does not do so, because the minister can only do that through a regulation, and the statement was not a regulation."

However, he did not agree with the applicants' suggestion that their Charter rights had been violated.

"The applicants have failed to prove a Charter breach because the evidence before me does not establish that the applicant children, or any other children, are at increased risk of severe outcomes or complications from COVID."

Gil McGowan, president of the AFL, says Thursday is "a very good day" for public health in Alberta.

"The judge was very clear that the decision maker, when it comes to public health, is the chief medical officer of health," he said.

"The court made it clear she decides – she cannot delegate that decision making."

He also praised the court's decision to throw out LaGrange's letter to school boards

McGowan said that while some may think the decisions released Thursday are "backward looking," there is an important argument to be made.

"The point we want to stress today is this decision on both of those fronts – those are both live issues today, because, as most Albertans know we just passed a very troubling threshold when it comes to COVID-related mortality rates."

The AFL became involved in the legal proceedings because while schools are places of learning, they are also workplaces.

"We had been hearing from many of our front-line members working in schools across the province that, frankly, they were afraid to be at work without mask mandates in place," McGowan said.

Alberta Education, in a statement sent to CTV News Thursday afternoon, said it respected Dunlop's decision and added the judgement also did not prove that the applicants' children or any other Alberta children "were at increased risk of severe outcomes from COVID-19."

"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," said Savannah Johnson, senior policy advisor and acting press secretary for Education Minister Adriana LaGrange.

"We are currently reviewing the decision to determine next steps. As this matter is still before the courts, we are not providing further comment."

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