Shanile Howe v The Minister of Health and the Environment
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ‘Henry, J.’ |
| Judgment Date | 16 November 2022 |
| Neutral Citation | VC 2022 HC 26 |
| Docket Number | SVGHCV2021/1033 |
| Court | High Court (Saint Vincent) |
| Year | 2022 |
In the Matter of a Claim for Judicial Review Under Part 56 of the Civil Procedure Rules 2000 (As Amended) Pursuant to Leave Granted by the Honourable Justice Esco Henry by Order Dated 10 th March 2022
and
In the Matter of Regulations 8(1) and 8(2) of the Public Health (Public Bodies Special Measures) Rules 2021
and
In the Matter of the Decision of the Public Service Commission to Terminate the Employment of the 1 st 2 nd, 3 rd and 4 th Claimants without an Opportunity to be Heard Having Deemed the Said Claimants to have Abandoned their Post and thereby Resigned from their Respective Posts
and
In the Matter of the Decision of the Police Service Commission to Terminate the Employment of the 5 th Claimant without an Opportunity to be Heard Having Deemed the Said Claimant to have Abandoned His Post and thereby Resigned
In the Matter of the Decision of the Commissioner of Police to Terminate the Employment of the 6 th Claimant without an Opportunity to be Heard Having Deemed the Said Claimant to have Abandoned Her Post and thereby Resigned
and
In the Matter of Sections 1, 5, 6, 8, 16, 17, 37, 38, 77, 78, 84, 96 and Section 101 of the Constitution of Saint Vincent and the Grenadines
and
In the Matter of COVID-19 (Miscellaneous Amendments) Act No. 5 of 2020 and Sro No. 32 of 2021 Entitled the COVID-19 (Miscellaneous Amendments) Order 2021
Consolidated with
In the Matter of a Claim for Judicial Review Under Part 56 of the Civil Procedure Rules 2000 (As Amended) Pursuant to Leave Granted by the Honourable Justice Esco Henry by Order Dated 8 th June 2022
and
In the Matter of Regulations 8(1) and 8(2) of the Public Health (Public Bodies Special Measures) Rules 2021
and
In the Matter of the Decision of the Public Service Commission to Terminate the Employment of the 1 st — 265 th Claimants without an Opportunity to Be Heard Having Deemed the Said Claimants to have Abandoned their Post and thereby Resigned from their Respective Posts
and
In the Matter of the Decision of the Commissioner of Police to Terminate the Employment of the 257 th — 265 th Claimants without an Opportunity to Be Heard Having Deemed the Said Claimants to have Abandoned their Post and thereby Resigned
and
In the Matter of Sections 1, 5, 6, 8, 16, 17, 37, 38, 77, 78, 84, 88, 96 and Section 101 of the Constitution of Saint Vincent and the Grenadines
and
In the Matter of COVID-19 (Miscellaneous Amendments) Act No. 5 of 2020 and Sro No. 32 of 2021 Entitled the COVID-19 (Miscellaneous Amendments) Order 2021
(in his representative capacity pursuant to Court order dated 8 th June 2022)
(in his representative capacity pursuant to Court order dated 8 th June 2022)
(in his representative capacity pursuant to Court order dated 8 th June 2022)
VC 2022 HC 26
The Hon. Mde, Justice Esco L. Henry High Court Judge
SVGHCV2021/1033
SVGHCV2022/0053
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Ms. Cara Shillingford-Marsh with her Mr. Jomo Thomas and Ms. Shirlan Barnwell for the claimants/applicants
Mr. Anthony Astaphan SC, Solicitor General with him Ms. Karen Duncan, Mrs. Cerepha Harper-Joseph for the 1 st, 3 rd and 4 th defendants/respondents.
Mr. Grahame Boilers for the 2 nd and 5 th defendants/respondents.
This is a consolidated claim by a number of individuals (the claimants) in which they are seeking among other things, judicial review of legislatives measures introduced by the Minister of Health and the Environment; and of decisions by the Public Service Commission (PSC), the Commissioner of Police (COP) and the Police Service Commission (Police SC) deeming them to have resigned their respective offices within the public service of Saint Vincent and the Grenadines or the Royal Saint Vincent and the Grenadines Police Force, The claimants also seek constitutional relief for what they allege to be breaches of their pension rights and right to protection from inhuman and degrading treatment arising from the alleged wrongful termination of their employment. The claimants have been employed as either public officers or police officers. A central plank of this case surrounds what they have described as unlawful, procedurally irregular, unconstitutional and disproportionate conduct towards them by the defendants in relation to their employment.
At the first hearing on June 8 th 2022, case management directions were issued. The parties were directed to file and serve all interlocutory applications on or before October 14 th 2022. By Notice of Application filed on 9 th September 2022, the claimants applied for an order permitting them to call Dr. Nikolai Petrovsky and Dr. Herman J. Edeling as expert witnesses on the ground that the evidence they intend to give is reasonably required to resolve these proceedings justly. For purposes of the application, the claimants are properly applicants and the defendants are constituted as respondents. However, for convenience, I will refer to the former as ‘claimants’ throughout and the latter as ‘defendants’.
In the application, Dr. Petrosky is said to have a number of qualifications and extensive expertise as a Director of Diabetes and Endocrinology and for having assisted with the development of a COVID-19 vaccine. Dr. Edeling was stated to have given evidence in the New Zealand High Court, where the court accepted that he was qualified to give evidence on the likely effects of vaccination on the workforces.
The claimants' application is opposed by the Minister of Health and the Environment (‘the Minister’), the PSC, the COP, the Police SC and the Honourable Attorney General. They contended that the application is insufficient and improper and that the purported expert evidence is inadmissible. They submitted that the issues in dispute in the consolidated claims involve matters of law and fact, the resolution of which cannot reasonably be advanced by admission of expert evidence as to the effectiveness of the COVID-19 vaccines. They submitted further that the claimants have pleaded no constitutional challenge regarding the effectiveness and safety of COVID-19 vaccines and have adduced no facts or evidence on which the Court can justifiably grant the application. The claimants maintained that the proposed expert testimony is reasonably required for a just resolution of the claims. The application is refused for the reasons set out in this decision.
The singular issue is whether the claimants should be granted leave to adduce the proposed expert testimony from Drs. Petrovsky and Edeling.
It is useful to provide a summary of the circumstances surrounding this claim, to frame the context out of which the instant application arises. The genesis of the consolidated claims are rules 8(1) and (2) of SR&O No. 28 of 2021 made by the Minister on 19 th October 2021. By rule 5(1) of the SR&O, the Minister stipulated that certain classes of public officers must be vaccinated against the COVID-19 disease. Similar provision was made by the Prime Minister in respect of police officers, 1
Those legislative provisions also provided that an employee within the specified classes who failed to take the vaccine, without reasonable excuse, must not access his workplace and would be treated as being absent from duty without leave [rule 8(1) and section 73A]. Sub-rule (2) of the SR&O purported to invoke and embody Regulation 31 of the Public Service Regulations (‘PS Regulations’) to the effect that an officer would be deemed to be absent from duty without leave if he failed without reasonable justification to take the vaccine. Section 73A of the Police Act was to similar effect in relation to police officers. It is common ground that the claimants, being public officers and police officers within the specified classes, failed to take the COVID-19 vaccine, They all received letters from the relevant officer within the public service or police force informing them that they were deemed to have resigned their respective offices.
The claimants were granted leave to apply for judicial review of the decisions by the Minister and Honourable Prime Minister to respectively make the impugned rules and law, limited to illegality, procedural impropriety and proportionality. They did so by Fixed Date Claims filed respectively on 24 th March 2022 and 23 rd June 2022. They challenge those provisions as being respectively unconstitutional and having been made in breach of natural justice, ultra vires, disproportionate and procedurally irregular; and in breach of section 8(8) of the Constitution. Among other orders, they seek from the court a declaration that the section 43B of the Public Health (Amendment) Act 2020 which grants power to the Minister to declare a public health emergency, and rule 8 of 8(1) and (2) of SR&O 28 of 2021 are inconsistent with sections 17, 77 and 78 respectively of the Constitution and are null and void.
The claimants also seek an order that the COVID-19 (Miscellaneous Amendments) Act No. 5 of 2020 violates section 37 of the Constitution and the constitutional doctrine of separation of powers and is therefore unconstitutional and void; and further that the failure to define ‘the...
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