Province won't help rotational workers put COVID-19 isolation rules to court test

The Higgs government has brushed off a demand by a group of rotational workers that it fast-track a constitutional test of COVID-19 isolation requirements.

The group's lawyer, Christian Michaud, wrote to Attorney-General Ted Flemming on June 9 asking the province to send a reference case to the New Brunswick Court of Appeal.

"We propose this course of action to avoid costly and adversarial proceedings in the Court of Queen's Bench of New Brunswick," Michaud wrote in the letter.

"Our objective is not to embarrass. It is to educate and avoid 'sweeping powers' from being utilized in the future in matters of the sort."

But in a two-page letter the same day, Flemming responded that the province's pandemic rules have been "carefully balanced to impose only minimally intrusive burdens."

He also argues that those burdens will soon be lifted.

Under the province's emergency order, rotational workers returning to New Brunswick have had to self-isolate for 14 days. If they chose to self-isolate with their families, all family members had to do the same.

The workers have argued that places an unfair burden on their spouses' ability to go to work and their children's ability to go to school.

"You can't insist that a human being be separated from all other human beings for an extended period of time," said Leanne Carter, who co-ordinates a group of about 400 rotational workers.

"It's cruel and unusual."

Under Phase 1 of the province's gradual lifting of restrictions, which took effect at midnight Monday night, rotational workers returning to the province will be able to leave isolation if they test negative for COVID-19 five to seven days after arriving.

The requirement would be lifted entirely under Phase 2, which Premier Blaine Higgs said could happen within days, if not hours.

Ruling would provide clarity, lawyer says

In his letter, Flemming argued that with those changes imminent, a legal case is not necessary and he urged Michaud to make sure his clients understand that before undertaking an expensive legal case.

But Michaud said in an interview that a clear ruling would be useful in the future.

"Let's say there's another pandemic. At least then we'll have the clarity of what we can and can't do."

Carter, whose spouse is a rotational worker, said members of the group as well as some of their employers had pooled their money to take the province to court.

"If they're so confident in the way they've managed the Emergency Measures Act for the last 15 months, what prevents them from going before a court and saying 'Was all of this OK?'"

In a reference case, which only the provincial cabinet can request,lawyers for various parties bypass the trial phase of a lawsuit and go straight to the province's top court. An eventual ruling would not strike down any law but carries a lot of weight.

"It allows for a forum where legal minds can get together and pose different questions and propose different avenues ... so that eventually we can obtain clarity on the law," Michaud said.

Now that Flemming has refused the reference request, Michaud says he'll ask for a judicial review of the emergency order.

Last month,Flemming said in the legislature that he didn't like having to renew the emergency order every two weeks because the restriction on rights "goes against my grain as a libertarian" and should be "sparingly used."

Michaud and his clients are citing those comments to argue the minister acknowledged the province had adopted sweeping powers.

But Flemming said in his letter that while he would have preferred no emergency order, "it would be an error for you to infer from my comments that I do not believe these orders were and are necessary.

"Be assured: I would not have signed any order I did not agree was necessary."