A Manitoba judge has rejected a mother’s request for a court injunction to allow two of her children to attend school without wearing masks.
Krista McKenzie, a practising lawyer who is representing her family, took the Division scolaire franco-manitobaine to court this month after administrators asked her to keep her kids home until she provided more information about why they cannot wear face coverings.
Exemptions to the provincewide mask mandate in schools for staff, visitors and students in Grade 4 and up are limited to nine reasons, ranging from a child being younger than two to having a medical condition that prevents a student from safely donning a mask.
Court documents indicate McKenzie, who owns a boutique law firm in Orillia, Ont., has requested an exemption for her two eldest children, "for various medical, psychological, dental and personal reasons that are of a private nature."
During a bilingual hearing held on Monday, the mother of three made her case on the grounds there is limited research about kids wearing masks, little is known about the repercussions of wearing masks on children — especially those with medical conditions, and children are too young to be able to speak up for themselves if they need to remove a mask.
On Thursday afternoon, Court of Queen’s Bench Justice Gerald Chartier dismissed the request in a Winnipeg courtroom, with the plaintiff and defendants present via conference call.
In his decision, Chartier wrote the potential harm to McKenzie’s children if they wear masks is "not substantiated medically or through other evidence."
"The applicant's children have a right to attend school, however that right is subject to the school board's directives as well as the application and administering of those directives relating to COVID-19," he said.
“The applicant's children have a right to attend school, however that right is subject to the school board's directives as well as the application and administering of those directives relating to COVID-19." — Court of Queen’s Bench Justice Gerald Chartier
Chartier wrote that McKenzie did not pass the three-part RJR-MacDonald test for an injunction, because he was not satisfied her children would suffer irreparable harm, and the public interest was of serious importance in the case.
He did, however, note the plaintiff met the bar for raising a serious issue to be tried about the issue of reasonable accommodation in relation to her children wearing masks. "COVID-19 is, of course, a new phenomenon, but so too is the issue of the effects of children wearing masks for long periods of time," he added.
In McKenzie’s statement of claim, which was filed on Sept. 16, she sought upwards of $210,000 in damages on behalf of her children, including $60,000 related to allegations of discrimination and $1,000 for every day her children were not in attendance at school.
Chartier said he needed more time to make a decision about whether he would order any financial penalties.
Christian Monnin, lawyer for the Division scolaire, said Thursday the decision should be made in consideration of the "serious allegations" levelled against the division.
McKenzie had argued the division did not properly communicate ever-changing mask exemption protocols and acted arbitrarily, the result of which was her children’s right to education being denied for two weeks.
The latest detailed provincial guidelines on mask limitations — which state divisions can request parents provide information about their child’s limitations and a note from a health care provider if they are seeking an exemption, were published Sept. 18.
“In the end, for us, it’s not a matter of who wins or who loses, it’s a matter of making sure that all our students and our communities, our staff, are in a safe environment." — Alain Laberge, superintendent of the Division scolaire
Since the policy was not available prior to McKenzie filing for an injunction, she said those details must also be taken into consideration.
"In the end, for us, it’s not a matter of who wins or who loses, it’s a matter of making sure that all our students and our communities, our staff, are in a safe environment," Alain Laberge, superintendent of the Division scolaire, told the Free Press after the decision.
Laberge said the division is happy to work with parents who are seeking exemptions and accommodate them, if they provide details.
Two weeks into the school year, the Division scolaire has received more than 52 requests for online learning and 10 requests for mask exemptions. Seven of the latter requests have been accepted, while three are pending.
"We’re not against exemptions, not at all, but we believe it is important to have a good knowledge of what the exemptions are all about… not because we think that what (parents) are bringing to us is not true, but mostly because if we have to accommodate, we want to best accommodate their children with the best accommodation possible," Laberge said.
McKenzie did not respond to the Free Press' calls.
Maggie Macintosh reports on education for the Winnipeg Free Press. Funding for the Free Press education reporter comes from the Government of Canada through the Local Journalism Initiative.