Background and Factual Overview
“The Ape Matter” centers on Chad Dallas McDonald’s legal struggle against His Majesty the King in Right of Alberta and Alberta Health Services. The case highlights the enforcement of public health directives during the COVID-19 pandemic, which McDonald claims disproportionately targeted his business, Ape Parkour, beyond was warranted even in the context of the public health crisis. This facility, normally offering parkour training and related activities, faced substantial and undue financial damages due to these directives and their enforcement by AHS, which McDonald claims was not rationally connected to the legislative objective of reducing COVID-19 spread through imposing building capacity limits.
Despite strict compliance with health measures, allowing only one person at a time in his 8,400-square-foot facility, and the fact that single-cohort training was allowed in gyms under the orders, McDonald’s business was severely impacted. Health officers, aware of these precautions, enforced directives that halted all revenue streams by categorizing the facility based on its zoning as a recreational property. They declared that the property could “not be used for any other purposes” while the health orders were in place. They cited that not even a single paying customer could enter the building under any circumstances, while there were no such restrictions on janitors and other staff. This discrepancy underscored the arbitrary and irrational enforcement of the directives, as the officers claimed that the determining factor for whether someone could enter the building was whether or not they were paying McDonald or he was paying them, without any consideration to the number of people on the property.
Bill 6 Amendments
The complexity of “The Ape Matter” was heightened by the introduction of Bill 6. McDonald accuses the government of attempting to change the law mid-lawsuit to introduce two defenses to negligence that were not previously applicable: core policy immunity and statutory immunity. These amendments seek to alter the criteria for issuing public health directives, incorporating political and economic factors into decisions that were previously based on expert opinion and technical standards. This shift could transform operational directives into core policy decisions, thereby limiting the Crown’s tort liability and reducing judicial oversight. Accountability would shift from the judiciary to the electorate, undermining previously afforded and established legal protections.
McDonald contends that Bill 6’s amendments are a reactionary attempt to retroactively validate unlawful directives and shield the government from liability. His judicial review challenges the constitutionality of these amendments, asserting that they erode legal standards and protections under the Public Health Act. The retroactive application of Bill 6 threatens to impact not only his case but also all past and present negligence cases involving orders made pursuant to Section 29 of the Public Health Act.
Hypocrisy and Disingenuous Portrayal of COVID Mandates
McDonald highlights the hypocrisy of Bill 6 and the disingenuous portrayal of COVID mandates as being driven by expert opinion to the public (Ingram). He points out that the government understood at the time that the orders were being decided by Alberta’s cabinet. McDonald is disgusted by the government’s reaction in court, which is to change its position by now arguing that the orders should be based on political and economic factors instead of expert opinion, especially now that it has been found they broke the law. This shift undermines the original narrative that public health measures were guided by expert advice and scientific data.
Claims of Negligence and Implications for Duty of Care
McDonald’s negligence claims are multifaceted. They include allegations related to the rapid and arbitrary changes in the wording of public health orders and the expansion of authority to Level 1 Peace Officers in November 2020. McDonald argues that the Crown could not have reasonably expected the additional 700 officers, who were granted enforcement authority overnight, to be adequately trained or even briefed on the new orders. Moreover, he contends that the enforcement against his property rights was not in line with the intent of this expansion of authority. The Justice Minister at the time admitted that the purpose of expanding enforcement was to control large private gatherings barred by the orders, not to prevent a single person from entering a building based on its zoning as a recreational facility.
If fitness facilities and professionals are found to be considered health services under public health law, it would significantly alter the duty of care owed to these entities. This reclassification would imply that fitness facilities must be treated with the same level of consideration and support as other health services, recognizing their role in promoting physical and mental well-being. It would also mean that any public health directives affecting these facilities must be rationally connected to their specific operational contexts and capacities, ensuring that they are not unfairly targeted or unduly restricted.
Current Legal Proceedings
For the latest updates on the current legal proceedings, please refer to the latest blog post.
Conclusion
“The Ape Matter” raises significant constitutional questions about the balance of power between legislative actions and judicial oversight, the protection of individual rights during emergencies, and government accountability. McDonald’s legal battle seeks to ensure that legislative changes do not undermine the protections originally established under the Public Health Act, emphasizing the need for rationality and constitutionality in public health emergency responses. The case also underscores the importance of recognizing the role of fitness facilities as essential health services, which would necessitate a reevaluation of the duty of care owed to them under public health law.
