Rights Group Fighting to Continue ArriveCAN Lawsuit Argues App Possibly ‘Not Legally Required’

A smartphone set to the opening screen of the ArriveCan app is seen in a photo illustration made in Toronto on June 29, 2022. (The Canadian Press/Giordano Ciampini)

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.

The Federal Court is currently hearing a motion that seeks to dismiss the TDF application as moot, which prompted the organization to file the written submission.

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, adding that when the court decides whether or not to use that discretion, it has to consider several criteria, including whether the a court should spend limited judicial resources to resolve an appeal that is moot.

‘A Better Chance’

So far, seven different legal proceedings challenging COVID-19 measures 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.

Feds ‘Wrongly Told Canadians’ ArriveCAN Required

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.”

TDF has challenged the Health Minister to produce evidence that ArriveCAN was properly specified as required by various orders in council.

“If the Minister of Health did not properly specify ArriveCAN, then its use was not legally required by persons crossing the border,” Honner said. “This could have implications beyond exonerating those who have been ticketed”

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.

The Epoch Times contacted Health Canada for comment on TDF’s press release, but the agency didn’t respond to the question by publication time.