Churches, pastors off financial hook after losing pandemic court challenge Unique circumstances justified exception to the rule, judge says By: Dean Pritchard Posted: 7:00 PM CST Thursday, Feb. 17, 2022

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This article was published 16/02/2022 (945 days ago), so information in it may no longer be current.

They lost a court fight with the province over its COVID-19 public-health orders, but seven churches and three pastors who launched the legal challenge will not face an additional hit to their pocketbooks, a judge has ruled.

Gateway Bible Baptist Church, Pembina Valley Baptist Church, Redeeming Grace Bible Church, Grace Covenant Church, Slavic Baptist Church, Bible Baptist Church, the Christian Church of Morden and pastors Thomas Rempel, Tobias Tissen and Ross McKay will not be responsible for paying the province’s legal bills defending against the court challenge, Queen’s Bench Chief Justice Glenn Joyal ruled in a written decision released earlier this month.

While costs are ordinarily awarded to the successful party in civil court proceedings, the “unique and particular circumstances of this case” justified an exception to the discretionary rule, Joyal wrote.

“When I consider the nature of the dispute, it is difficult not to conclude that this proceeding… involve(s) issues in the public interest,” he wrote. “The (churches and pastors) are not wrong to submit that given the scope of the public-health orders and the necessary restrictions implemented to address the pandemic, this litigation is one of the more significant constitutional law cases in Manitoba’s history.”

Joyal stressed his decision should not be considered a precedent in deciding similar cost disputes in the future.

“My decision on costs in the present case should not be understood as an invitation to litigate any and all challenges to pandemic restrictions in this court… on the assumption that there will be no cost consequences for the losing party,” he wrote. “By definition, as it relates to an otherwise unlitigated area of law or legal issue, a case of first impression can happen only once.”

The churches and ministers were represented in court by the Calgary-based Justice Centre for Constitutional Freedoms. Justice centre lawyer Allison Pejovic could not be reached for comment Thursday.

The province did not respond directly to a request for comment.

In their court challenge last year, the churches and pastors argued COVID-19 public-health orders unfairly violated their rights and were improperly enacted into law. The group specifically challenged three public-health orders issued in the fall of 2020, at the height of Manitoba’s second wave, that restricted private and public gatherings and placed limits on the number of people who could attend in-person church services.

Joyal dismissed the court challenge, ruling that while the public-health orders did restrict the freedoms of religious expression and peaceful assembly, they didn’t infringe upon charter rights and were justified as a science-based pandemic response.

“I have no difficulty concluding that even where Manitoba’s response to the various waves of the pandemic could be properly criticized in hindsight as too slow and not sufficiently broad, the restrictions that were eventually imposed represent public health policy choices rooted in a comparatively well-accepted public health consensus,” he wrote in a 156-page decision issued last October.

In testimony before the court last May, Tissen, a minister with Church of God (Restoration), argued “only God” had the authority to restrict church gatherings.

Tissen has been fined multiple times for allegedly breaching pandemic restrictions, most recently for failing to self-isolate following a trip to Mexico last December.

In July, justice centre president John Carpay admitted he hired a private investigation firm to follow Joyal and several government officials to determine if they were following pandemic restrictions.

The move, widely condemned by justice and political officials across the country, was “an error in judgment,” said Carpay, who briefly stepped down as justice centre president following his disclosure.

Carpay’s revelation came four days after Joyal told a court hearing for the churches he had noticed a suspicious vehicle following him as he left the Law Courts the previous week and ran some errands. A teenage boy knocked on his door at home and asked where he was. Police later confirmed a private investigator was involved and that Joyal was being followed.

“If we are now in an era where a sitting judge, in the middle of a case, can have his or her privacy compromised, as part of an attempt to gather information, intended to embarrass him or her, and perhaps even attempt to influence or shape a legal outcome, then we are indeed in uncharted waters,” Joyal said at the time.

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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