Although Shandro, on April 12, requested the documents remain confidential, several applicants involved in the court action against the Alberta government requested the disclosure of the PowerPoint presentation and the cabinet minutes. 

It was confirmed the documents were in the possession of chief medical officer of health (CMOH), Dr. Deena Hinshaw, and "were relevant to her decision in CMOH Order 08-2022, which the Applicants allege was deficient in several respects."

After reviewing the PowerPoint and cabinet minutes "to ensure nothing would be disclosed which should remain confidential in the public interest," Justice Grant Dunlop ruled nothing in either document was "immune from production based on the public interest." 

Dunlop said it was the Crown's burden to prove public interest immunity applies and should have submitted a detailed affidavit to support its claim, which it did not. 

"The only evidence I have relevant to public interest immunity is Minister Shandro’s certificate and the documents themselves," said Dunlop in his ruling. 

"Minister Shandro has an obligation to 'be as helpful as possible in identifying the interest sought to be protected.'" 

Dunlop further added the cabinet minutes did not contain any statements from individual cabinet members, but only contained decisions made by cabinet itself.

As for the PowerPoint, Dunlop said it only contained information about COVID-19 in the province and elsewhere in the world and highlighted what other provinces were doing to ease public health measures and contained "no statements, discussions, or deliberations by individual cabinet members." 

"As to the materials prepared for cabinet’s consideration, there is no evidence before me to support the conclusion that documents provided by the chief medical officer of health to cabinet must be kept secret to ensure she will freely and honestly provide information and recommendations in the future," reads Dunlop's ruling. 

"On the contrary, given her statutory powers and duties under the Public Health Act, RSA 2000, c. P-37, and her professional obligations as a physician, I would expect her to be candid and complete, regardless of any potential future public disclosure."

Dunlop said, with respect to this case, "the relationship between cabinet decisions and [CMOH] decisions is a central issue" and "the interests of justice tip the balance in favour of disclosure."

"The Applicants allege improper delegation by the chief medical officer of health to the cabinet, whereas the Crown argues that cabinet makes policy decisions and the chief medical officer of health implements those policy decisions through her orders," said Dunlop. 

"The documents before me do not reveal cabinet deliberations. They contain information and options provided by the chief medical officer of health to cabinet, one recommendation, and cabinet decisions. The Crown has not established a public interest requiring that those things be kept secret."

Dunlop also scolded counsel for the Crown for its last-minute request to have redactions made to the documents in question "such that only information that relates to the school masking is disclosed" and called the actions "irregular and unfair to the applicants."    

"Natural justice and the open courts principle require that litigation be conducted on notice, on the record, and in public," said Dunlop.

"There are limited exceptions for emergencies and to protect children and other vulnerable people. None of the exceptions [apply] here. In this case, on no or very short notice to the Applicants, the Crown sought redactions of the PowerPoint presentation and the cabinet minutes, and a stay of my order should I order disclosure of anything."

Dunlop has set a deadline of one week from the date of his July 4 ruling for Hinshaw to produce the two unredacted documents, unless Crown files an application for a stay.