Judge rejects class action over N.L.'s travel ban, rules it didn't meet certification criteria
'The plaintiffs' application did not demonstrate that they had a viable cause of action,' writes judge
A class-action suit against the Newfoundland and Labrador government for restricting travel to the province amid the COVID-19 pandemic has been denied certification.
In his decision on Tuesday, Justice Daniel Boone of the Supreme Court of Newfoundland and Labrador said plaintiffs Werner and Sharon Koehler's class action was dismissed because it did not meet the required criteria under the provincial Class Actions Act.
The Koehlers live in Ontario but own a home and a seasonal business in Bay Roberts. They claimed travel restrictions imposed by the provincial government under the COVID-19 pandemic violated their charter rights to mobility, equality and freedom of expression and also caused actionable nuisance.
"The plaintiffs' application did not demonstrate that they had a viable cause of action. In particular, although the plaintiffs sufficiently pleaded a violation of their mobility rights, they did not have a viable cause of action for charter damages because they did not plead that the government actions were an abuse of power, in bad faith, or with clear disregard for their charter rights," Boone wrote in his decision.
"The government action of which they complained did not affect land and, therefore, did not constitute a viable plea in nuisance."
The restrictions introduced in May 2020 closed the province's borders to anyone other than permanent residents and essential workers.
Boone also noted the couple said they had arrangements to travel to Newfoundland in the spring of 2020, but cancelled those plans after learning of the travel ban. On July 16, the couple applied for an exemption, which was granted the following day, and they travelled to Bay Roberts later that summer.
"We are disappointed in the decision. We were expecting the application to be certified," Bob Buckingham, one of the couple's lawyers, told CBC News on Wednesday.
"We are now in the process of analyzing the decision and the next step will be for us to meet with our clients, to have a session with them, advise them of the options and see where they instruct us to go to next."
When the lawsuit was launched last year, Buckingham said, thousands of people had been prevented from entering the province. He said he believes the province eventually began allowing exemptions because of the lawsuit.
"That's sort of my assessment of it," he said.
"In any case we have to have a discussion with them to see how they wish to go forward and if they wish to go forward. It's been a long case for them, so they have to look at what their options are."