Ross Mercer and his group aren’t willing to surrender yet when it comes to their court case against the Yukon government’s use of the Civil Emergency Measures Act (CEMA).

Last month, a court case launched by Mercer and six other Yukoners against the territorial government’s use of the CEMA was decisively dismissed by Chief Justice Suzanne Duncan in the Supreme Court of Yukon.

The case was first filed in 2020 by a group led by Mercer, a Whitehorse businessman

Mercer has been the spokesperson for the group. On Tuesday afternoon, he told the Star the group has decided to appeal the court decision.

“We think there should be limits on the power of delegation (for the government),” Mercer said.

He said he and his group considered the implementation of the CEMA legislation was tantamount to a restructuring of the government, giving near-total control to the executive branch with no oversight from the legislative assembly.

Mercer said he wasn’t surprised at the initial decision.

“No, not really,” he said. “We were hopeful, but I personally was not really surprised by it. I thought it was likely to happen; however, I think this is an argument that had to be made.”

Mercer said the dispute involved constitutional principles and fundamental concerns with democratic concepts.

“I think there should be limitations on the power of delegation (to the executive branch) by the government,” he said. “I think these sorts of things need to be looked at.

“I think it’s a gap in CEMA and it needs to be looked at.”

Mercer didn’t have all the details, but he expected the case would go to the federal court of appeal and be heard in Vancouver.

He wasn’t certain how much further his group will push the case. Legal costs are mounting, reaching into many thousands of dollars.

In her decision, Duncan wrote, “The plaintiffs have a fundamental disagreement with the powers granted to the executive by CEMA.

“The effect of many of the executive orders made during the pandemic had significant negative impacts on their businesses.

“The economic and logistical hardships they experienced, as well as the feelings of frustration, disaffection and distrust directed towards government, are undeniable.”

However, she added, “The plaintiffs’ application is dismissed. Authoritative jurisprudence supports the ability of the legislature to delegate a broad range of powers to the executive branch.

“Nothing in the text of the Yukon Act prevents the delegated powers set out in CEMA.”

Duncan continued to leave no doubt as to her opinion that the court case was an over-reach by Mercer’s group.

“The plaintiffs are asking this court to intervene inappropriately into the democratically elected legislature’s choices about how to govern the Yukon in the context of an emergency,” Duncan wrote.

“There is nothing in the text of the Yukon Act, or in the unwritten constitutional principles, or in the jurisprudence interpreting delegation of, or in the jurisprudence interpreting delegation of powers by the legislature, that authorizes this court to invalidate CEMA for the reasons provided by the plaintiffs.

“CEMA is the product of the deliberations of a democratically elected body.”

On March 27, 2020, the Yukon Executive Council declared a state of emergency under s. 6(1) of CEMA.

The declaration must occur before powers under CEMA can be exercised.

On June 12, 2020, the state of emergency was extended by the Executive Council for 90 days.

Further 90-day extensions occurred on Sept. 9, 2020, Dec. 7, 2020, March 3, 2021 and May 27, 2021. The state of emergency ended on Aug. 25, 2021.

Then, on Nov. 8, 2021, a new state of emergency was declared as a result of the increased spread of COVID-19 at that time.

It was renewed on Feb. 3, 2022, but ended before the 90 days had expired, on March 17, 2022.