Among the primary public health mechanisms for addressing the COVID-19 pandemic in B.C. was by order of the Provincial Health Officer (PHO) under the Public Health Act. Judicial reviews of these Orders offer guidance on possible approaches to similar public law litigation. In particular, the decisions clarify the approach to the proper record for non-adjudicative decisions in developing public health circumstances, and reaffirm the general rule against cross-examinations of record affiants.

With limited exceptions, in B.C., the evidence on judicial review is confined to the record that was before the decision maker. Adjudicative tribunal decisions arising from formal hearings with contested argument and evidence, by their nature, provide a clear picture of that evidence. The scope is less clear with a non-adjudicative decision responding to a rapidly evolving public health emergency, such as with PHO orders.

In Beaudoin v. British Columbia, 2021 BCSC 512, the court held that with a non-adjudicative tribunal such as the PHO, the record must be reconstructed. The record is not static, but includes background information that will assist the court in understanding the issues or information before the decision maker. CSASPP v. British Columbia, 2023 BCSC 28 further clarified that general background information from the PHO is admissible in judicial review cases involving procedural and factual complexity with a voluminous and constantly evolving record.

In these types of judicial reviews, the record need not include every single available document. In CSASPP, the court noted the parties’ agreement that the vast amount of information available to the PHO at the time of the orders made it impractical and likely impossible to identify every relevant and available document. The court distilled the guiding principle to be, where a vast amount of information has been generated throughout a lengthy period, the record should contain a balanced representation of the important information available to the PHO on the issues in dispute, so that a meaningful and fair judicial review could be conducted. Moreover, additional documents might be included in the record, by agreement or application, as they were identified.

The courts also reaffirmed that meaningful and fair judicial review does not require that the decision maker or record affiant be cross-examined. The law in B.C. is that it is an error to order cross-examination of a decision maker in the absence of evidence grounding a reasonable belief the process did not comply with natural justice or procedural fairness.

Those bases were not alleged, but in CSASPP v. British Columbia, (11 October 2022), Vancouver Registry S2110229 (unreported), the petitioners sought to cross-examine the record affiant Deputy PHO. Some petitioners sought to cross-examine on the medical opinions underlying the orders, while others wanted to cross-examine to explore information they asserted was not in the record.

In dismissing the application, the court held that cross-examination on affidavit information not properly part of the record would be irrelevant, while cross-examination on proper record information would not assist the court’s supervisory role on judicial review, which does not extend to assessing underlying facts to make its own findings. Moreover, by definition, the cross-examination itself would not be part of the record.