A constitutional rights group is fighting to keep alive its legal challenge against the federal government’s ArriveCAN mandate, after the government said the issue is moot because the policy requiring mandatory use of the app has since been lifted.
In response, the group argued that the lifting of the policy has no bearing on the lawsuit since the mandate orders never made it a legal requirement for travellers to specifically use ArriveCAN as part of COVID-19 measures. It said the orders only required travellers to submit information via “electronic means” but did not indicate ArriveCAN as the specific means that must be used.
The lawsuit was initiated in August 2022 when The Democracy Fund (TDF) filed a notice of application in the Federal Court against the health minister over the use of ArriveCAN. The group said the app’s collection and use of private health information breached Canadians’ charter rights. It also said the hefty fines for non-compliance—over $6,000—have been financially devastating for many people.
ArriveCan was designed for use by travellers seeking to enter Canada, requiring them to upload their contact, travel, and COVID-19 vaccination information as well as their quarantine plan.
The month after TDF filed its application, the final order-in-council requiring mandatory use of ArriveCAN expired, on Sept. 30, 2022, following the federal government’s announcement four days prior saying that the order would not be renewed.
Subsequently, the Federal Court dismissed the TDF’s application as moot, saying that the ArriveCAN mandate had already been lifted.
A federal order-in-council is a decision made by cabinet that does not require parliamentary debate or enactment of legislation before being implemented.
An issue is considered “moot” when there is no longer any “live controversy” or “tangible and concrete dispute” between the parties, rendering the issue academic.
TDF responded by filing a written submission with the Federal Court on Jan. 30, citing the case Borowski v. Canada (Attorney General), which sets out the legal concept of “mootness.”
In a press release on Feb. 2, TDF said that it believes the application is not moot and that it will regardless continue to push its ArriveCAN challenge forward.
“[Even] when [a case] is moot, a court still has discretion to hear it,” TDF litigation director Alan Honner told The Epoch Times.
So far, six different groups have brought various challenges against the federal government’s COVID-19 measures, but all have been dismissed for mootness, Honner said.
A federal judge who struck down four lawsuits in October 2022 gave as her reasoning that “there is no important public interest or inconsistency in the law that would justify allocating significant judicial resources to hear these moot Applications.”
Honner said he believes TDF would have “a better chance” in challenging the government because there is still a live controversy involving his client.
Cody Tilbury, one of the applicants, was among 190 or more people fined for not using the ArriveCAN app. Tilbury continues to face a fine of over $6,000 for not using ArriveCAN, according to the TDF written submission.
“The breach is ongoing. It’s not cured by the repeal of the law,” Honner said.
In the TDF written submission in January, Tilbury and another applicant, Corrine Janzen—together referred to as “the Janzen Applicants”—stated as their main argument that the federal government “wrongly told Canadians that the use of ArriveCAN was legally required of persons crossing the Canadian border between November 2020 and September 2022.”
The Jantzen Applicants cited several COVID-19 orders-in-council mandating that travellers coming to Canada must provide travel and health information by “an electronic means specified by the Minister of Health.” But they said that “the Minister of Health failed to specify [ArriveCAN] as the ‘electronic means’ by which persons crossing the border were required to provide mandatory health and travel information to the Minister of Health.”
According to Honner, “ArriveCAN hasn’t been specified by the minister of health. It’s actually impossible to comply with that law. So the question of whether or not ArriveCAN was actually properly specified has a further reach than just those people that have been charged for not using ArriveCAN.”
TDF has made requests to Health Canada and the attorney general asking for information as to when and where the health minister specified ArriveCAN as the electronic means described in the orders, Honner said. But he said the organization has not received any response to date.