Witness Testimony

Jeffrey Rath, a constitutional and administrative lawyer with over three decades of experience, testified regarding what he identified as systemic failures in Canadian administrative law during the COVID-19 period. He focused on the judicial standard of “reasonableness,” particularly as articulated in the Supreme Court of Canada’s Vavilov and Doré decisions, arguing that courts defer excessively to administrative decision-makers deemed “experts.” He stated that this deference prevented meaningful judicial review of public health orders and other rights-restricting measures.
Rath described instances where life-and-death decisions, including organ transplant eligibility tied to vaccination status, were reviewed under a reasonableness standard rather than a correctness standard. He testified that under the current framework, the burden rests on citizens to prove that administrative decisions are unreasonable, rather than on decision-makers to justify their actions. He characterized this as an imbalance that disadvantages individuals when fundamental rights, including property, livelihood, and bodily autonomy, are at stake.
He proposed legislative amendments at the provincial level, including changes to the Alberta Interpretation Act, the Alberta Bill of Rights, and provisions of the Public Health Act. His recommendations included eliminating the reasonableness standard in cases involving civil rights, shifting the burden of proof to administrative decision-makers, removing statutory immunities for public officials acting in “good faith,” and strengthening statutory protections for property and civil rights. He emphasized that reform must occur through legislative action rather than through further litigation.