Western Standard - WATCH： Lawyer weighs in on confusion around vax passports for kids rec

00:00:00.000 Good evening. I'm Melanie Rizdin with the Western Standard. Joining me this evening is lawyer Derek

00:00:14.480 Frum from WKA Lawyers in Airdrie. And we're going to be chatting about the city of Calgary

00:00:20.800 councillors who met today in a regular council meeting. And one of the items on the agenda

00:00:27.580 was to discuss the REAP program and a bylaw that the city has put in place around that program.

00:00:34.540 So we've got Derek here, who's got a little bit more insight. And so Derek, why don't you fill

00:00:40.080 us in on what's going on? So there is a long story behind this. I'll try to shorten it and

00:00:45.800 make it as clear as possible. But in September, the province brought in a public health order

00:00:50.380 that created this REP, this restrictions exemption program. And people now just refer to it as the

00:00:57.460 vaccine passport the vaccine passport that we were never supposed to have in alberta but essentially

00:01:01.860 that's what it is so we'll just call it the vaccine passport the provincial one and uh what the

00:01:07.620 province did very intentionally was they carved out space for youth recreational activities

00:01:12.500 and dr dina hinshaw was very explicit in the the weeks following that this vaccine passport

00:01:20.660 was not intended to impact upon youth involvement and recreational activities so that includes

00:01:26.500 girl guides, you know, all sorts of programs like that, taekwondo, hockey, soccer, basketball,

00:01:35.580 things that children... So Derek, yeah, so explain to me what that means then,

00:01:39.980 what it looks like, what's a snapshot of it not affecting children's recreation, children's

00:01:46.280 sports, what does that mean they have to do or abide by? So currently the law is this,

00:01:52.260 that if if a business is listed in scope for the vaccine passport they are permitted to decide

00:02:00.520 whether or not they will go with the vaccine passport if they choose not to go with the

00:02:06.380 vaccine passport they go into regular business restrictions which is like one-third capacity

00:02:11.000 social distancing wearing a mask those sorts of things but now if you're a restaurant you can't

00:02:15.440 have your dining room open unless you do the vaccine passport so those eligible businesses

00:02:20.120 choose that stream other other businesses they make a business decision which stream is best

00:02:25.120 for my customer and client base and uh so what happened was in those in as the law exists right

00:02:32.060 now from the province youth recreational activity is considered out of scope meaning that if you're

00:02:37.880 if you provide youth recreational uh activities you are not permitted in law to implement rep

00:02:46.100 the vaccine passport. And the reason was very clear from Dr. Dina Hinshaw. Youth mental health

00:02:51.380 is a very important issue and physical and social activities provided by recreational activities is

00:02:58.220 so important to youth mental health during the pandemic that the province chose explicitly

00:03:04.020 not to encumber youth and families involved in youth rec with this additional burden of the

00:03:10.420 vaccine passport. But Calgary came along and decided to do the opposite. Calgary has its own

00:03:16.600 bylaw called the vaccine passport bylaw in which the province or in which the city says, you know

00:03:23.180 what, even if you are an eligible business, we're going to decide for you that you must implement

00:03:30.580 rep, must implement the vaccine passport. So what that has meant is that youth recreational

00:03:36.940 activities is now covered by the provincial vaccine passport bylaw so if you're a 12 year old

00:03:44.400 you must provide proof of immunization upon entering a rec center to play hockey if you're

00:03:51.860 a 13 year old girl going to guides you have to provide proof of a negative test in order to meet

00:03:57.440 with your friends that you are at school with every day and you know otherwise you don't get

00:04:04.620 to do these activities, you'll be locked out of the city's facilities because the city has decided 0.98

00:04:09.620 that it has more expertise and has the interests of Calgarians more in mind, better than the

00:04:18.500 province does when it specifically said that it won't do this. Now, it seems to be quite a

00:04:24.620 confusing topic for many people. I know I've spoken to so many parents who are very confused

00:04:30.340 by all of this so to be specific then the alberta government uh based on their design of rep is that

00:04:40.980 is that youth activities were not in scope whereas what you're saying is the city's amendment of this

00:04:49.540 bylaw instructs that these children's activities and sports are considered in scope now is that

00:04:57.540 correct? That is precisely correct. And that's what makes it illegal. Right. And what's confusing

00:05:04.520 as well is I've seen reports. This was actually just today. This was discussed in chambers today

00:05:12.860 and voted on, actually unanimously voted on to bring this amendment in place. But I've been

00:05:18.040 hearing from so many sources that what the city has done is aligned themselves more with the

00:05:25.420 provincial regulations but it sounds like the opposite has happened it is most certainly the

00:05:33.480 opposite if you the most recent public health order from the province there are two columns

00:05:39.400 at the end the last two pages i believe now one column says in scope the second column says out

00:05:47.100 of scope the column in scope says things like restaurants um it says recreational activities

00:05:54.720 where participants are over the age of 18. In the other column, out of scope, it specifically says

00:06:01.500 youth recreational activities where all participants are under the age of 18.

00:06:05.960 So if you have a U15 hockey team, they are out of scope, according to the province. That is the

00:06:12.000 meaning that where they where they are participating in the sport, it needs to then

00:06:18.980 restrict uh restrict down to one-third capacity uh and do all of the other public health orders

00:06:25.220 rather than require proof of vaccination or proof of negative test correct exactly that's exactly

00:06:31.060 right yeah okay so it's very confusing there are a lot of people who don't understand this and

00:06:36.340 and again i feel like the city has created um sort of a a picture that that they are aligning or

00:06:44.900 maybe that's what people have assumed has happened here but what you're saying is in fact they have

00:06:51.140 contradicted what the province set forth so in law there's two two ways that a a by-law like

00:06:58.740 this can contravene or contradict a provincial enactment and that's one is to frustrate the

00:07:05.780 purpose of that provincial enactment and the second is to make it impossible to comply with both

00:07:11.700 now the city of calgary has done both they frustrated the purpose dina hinshaw sorry

00:07:17.700 dr dina hinshaw was very clear about youth mental health and the importance of youth rec

00:07:23.860 the purpose of the province in keeping youth rec out of scope was to preserve and promote youth

00:07:31.780 mental health calgary has done otherwise it's frustrated that purpose and now as of today

00:07:37.460 they have explicitly made it impossible and displayed their intention to make it impossible

00:07:43.140 to comply with both so if you're if you run a hockey association in the city you now have no

00:07:49.620 choice but to ask for proof of vaccination or proof of negative test you will be violating

00:07:56.980 a city bylaw if you do not do so yet at the same time if you do that you will be violating

00:08:04.660 a provincial law it is impossible to comply with both so it both frustrates the purpose

00:08:11.940 and also makes dual compliance impossible so constitutional law constitutional principles

00:08:18.820 are very clear on this when such a contradiction happens between two levels of government

00:08:25.380 the superior government's enactment prevails to the force of or to the extent of the inconsistency

00:08:31.380 And quite frankly, a city is just a delegated authority under the provincial government's

00:08:38.620 authority.

00:08:39.140 It's essentially a board of the province.

00:08:41.760 It has no authority in law to contradict anything that the province has brought in.

00:08:48.260 And so quite frankly, the city is out of line here and is bringing in a law that will harm

00:08:54.440 children and has been harming children since it was first enacted.

00:08:58.360 and they've they're just turning a blind eye and today it looks like they've doubled down

00:09:03.660 and just reinforced their position that they're taking. And I know you have been supporting a

00:09:12.300 number of parents who have children in rec facilities and rec programs and and sports

00:09:19.020 and whatnot and and I'm sure you're being sort of contacted on a regular basis. What are you

00:09:23.740 hearing from parents what's happening well parents are very frustrated and very confused and it's not

00:09:29.580 just the parents it's also those hockey association uh boards and soccer and basketball because they

00:09:35.820 don't want to lose children they want the children to be able to play because everyone knows children

00:09:40.860 aren't really a major vector for uh for covid19 infections it's this has not been a problem

00:09:47.980 There's very, very strong evidence, mostly out of the American context, that basketball,

00:09:53.740 football, hockey, soccer, these sorts of activities do not result in transmission of SARS-CoV-2

00:10:01.660 and result in infections of COVID-19. It's extremely clear. Now, that being said,

00:10:08.380 this province is currently a patchwork. Calgary is obviously the one I'm most familiar with.

00:10:13.580 calgary has decided to to violate provincial law in my opinion and but yet yet if you go out to

00:10:20.940 other places um into more rural areas you find things like well our rec center is going to bring

00:10:27.660 in a youth exemption well there's no such thing as a youth exemption in law that is made up whole

00:10:34.060 cloth by facility operators who are trying to keep children involved they're doing their best to try

00:10:40.460 to keep children involved and my my impression is that the province would turn a blind eye to

00:10:44.460 that because it also is meeting the province's goals to a great degree but if you get even

00:10:49.500 further away from calgary's vortex you'll find that most rinks most rec facilities have implemented

00:10:58.220 the proper the proper program the one-third capacity social distancing and wearing a mask

00:11:04.380 they're actually following the law out in the rural places of alberta it's the city of calgary

00:11:09.580 where the law is not being respected. So what it turns out, what it ends up for some of these

00:11:16.340 kids that are playing sports is they, you know, from say a Calgary-based team perhaps can't

00:11:23.200 participate in their Calgary games, but leaving the city and going to some of the more rural areas,

00:11:29.580 they can participate because they're, you know, these other facilities are not implementing

00:11:35.220 rep. So that's got to be difficult as well. Now, I know they're also allowing for negative COVID

00:11:44.340 tests at this stage still, correct? Yes, that is true. They are allowing for those negative tests.

00:11:50.400 But now when you think of it, this is if you go or make a phone call today, phone Costco and say,

00:11:57.060 I would like an antigen test, they'll book you, but they're going to book you four or five days

00:12:03.100 from now. And then they're going to charge you, I think around $20 to get that done. Now, if you

00:12:09.580 think, well, I can't wait that long. I need to get this done more quickly. And you go to Shoppers

00:12:12.980 Drug Mart, you'll wait. Oh, well, you know, you have to make an appointment. It's going to be

00:12:17.240 whenever so-and-so is available. You can probably get it done more rapidly there because there's

00:12:20.840 less demand because the cost is around $40 a test. So then if you have a child who's in hockey

00:12:27.200 or basketball or the sport that you know they practice on tuesday night on thursday night

00:12:33.020 they play games on the weekend and these tests are only valid the test results are only valid

00:12:37.180 for 72 hours that means you're testing at least twice a week sometimes you're going to be testing

00:12:41.940 more than twice a week so you're adding potentially a hundred dollars a week to the program that you

00:12:46.200 already put your kid into and i i can talk to um hockey fees uh hockey fees are in the thousands

00:12:53.740 of dollars and you're adding thousands of dollars more in rapid testing costs plus the inconvenience

00:13:00.620 of actually producing that test going and getting it done and then carrying it around with you etc

00:13:05.900 and let me remind you this is a cost that is being illegally imposed in my view on parents

00:13:13.180 involved in recreational activities in calgary well and i think the tough thing too i've heard

00:13:18.540 from some parents as well is that with the vaccine mandates they are not able to go in and watch

00:13:26.060 their children perform or play or take part in the in the sport or dance or whatever it is that

00:13:32.540 they're they're involved in when you know when this is in place and they're spending the money

00:13:39.020 to get their child able to access the facility but then the parents aren't able to at the same time

00:13:45.100 which can be very difficult and and also dangerous when we're talking about younger kids that's

00:13:51.100 correct so it is a little personal story my my boy plays hockey and this summer in in his hockey

00:13:57.740 program he's involved in he broke his collarbone and if i had not been allowed to be in that

00:14:03.180 facility when that happened that would be a devastating experience for me and my wife as

00:14:08.380 parents our little boy needed us at that moment and we if we were kept out of the facility we

00:14:15.580 might have heard about it an hour later might have heard about it a half an hour later that's

00:14:19.580 devastating and you know what that may have been very serious that to me that's very serious but

00:14:25.740 that's far less serious than when we think of this in the context of the graham james types 0.99

00:14:30.860 that are in the dressings with kids absolutely potentially unattended this is a very foolish 0.96

00:14:36.460 and destructive policy. So are you able to comment, Derek, on where things are at with some of the

00:14:45.020 clients that you're supporting through this? I know that you are working hard to try to

00:14:51.180 get some of these overturned, these mandates. Are you able to comment on where things are right now?

00:14:57.660 Yes. Well, we have filed, we have sued the City of Calgary. We filed documents early in December

00:15:03.740 and served the city of calgary which they conveniently somehow misplaced and didn't

00:15:08.300 give to the legal department until the new year so our court date our first case um our first

00:15:14.620 court date was coming up and we hadn't heard back from any of the lawyers in calgary so we contacted

00:15:19.980 them and asked what's going on and they were completely unaware this was happening and so

00:15:25.900 there's been some unbelievable incompetence and it has slowed things down and we are in the process

00:15:31.980 now of trying to get the court to understand the urgency of this matter that a child's activities

00:15:39.260 are only for a short period of that of a child's life and that parental involvement is very

00:15:45.100 important this is an incredibly urgent matter this is for a very short time span and it cannot

00:15:51.020 be compensated with money this is opportunity lost and once that opportunity is gone it can never

00:15:56.700 gotten be gotten back so we're in the process right now trying to get that process x or trying

00:16:02.860 to get the case expedited and heard as soon as possible but i'm a little discouraged with the

00:16:08.040 response we've received from calgary thus far yeah i can imagine that would be disappointing so

00:16:13.860 we'll i think what we'll do is we'll just stay in touch uh and uh hopefully you can keep us

00:16:20.860 abreast of what comes of it and what happens in the courts um anything else you want to add to

00:16:27.580 to what came down today from the city of calgary

00:16:32.620 uh i think it's very interesting that that council did vote 11 to 0 in favor of the amendment uh it

00:16:41.100 shows that they've really uh locked arms on this matter um i'm told that one counselor did ask sort

00:16:48.060 of a um probably a question she was given to ask about what are other communities doing

00:16:56.300 and i'm told that they had two general practitioner doctors there

00:17:00.780 to give give them the gloss of having consulted with someone who's an expert

00:17:06.380 i'm not sure any of that is relevant but we'll see in time well thanks for the clarity on the

00:17:14.940 situation because again there is a lot of confusion around this and even even looking at some of the

00:17:23.820 reports that have come out of this and people discussing that the city is now getting closer

00:17:29.180 to aligning with the province again still just doesn't make sense to me when when the opposite

00:17:35.340 has has transpired so thank you very much for the clarity on that and uh let's keep in touch

00:17:41.020 and you can keep us updated on how things go. Thank you. Thanks, Derek.

Western Standard - January 12, 2022

WATCH： Lawyer weighs in on confusion around vax passports for kids rec

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