Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220503 DOCKET: C69855

Benotto, Miller and Copeland JJ.A.

BETWEEN

Roman Baber and Lift the Lockdown Applicants (Appellants)

and

The Attorney General of Ontario Respondent (Respondent)

Counsel: Sam A. Presvelos and Evan A. Presvelos, for the appellants Josh Hunter, Ryan Cookson, and Maia Stevenson, for the respondent

Heard: April 26, 2022 by videoconference

On appeal from the order of Justice Susan Vella of the Superior Court of Justice, dated August 18, 2021.

Reasons for Decision

[1] The appellants seek to set aside the application judge’s decision to dismiss their application on the basis that they did not meet the requirements for public interest standing. The underlying application involves a challenge by the appellants to outdoor gathering restrictions imposed as a public health measure by regulations under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, and the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. The appellants plead in their application that the restrictions infringe their rights under ss. 2 and 15 of the Canadian Charter of Rights and Freedoms, and are not reasonable and demonstrably justified limits on their rights.

[2] The respondent submits that the appeal is moot because the regulations challenged are no longer in force and that the court should not exercise its discretion to hear and decide the appeal.

[3] The appellants concede that the underlying application is moot. They no longer seek a hearing on the merits of the application in the Superior Court. However, the appellant Mr. Baber submits that the issue of his private interest standing to bring the application is not moot. In the alternative, if the issue of his private interest standing is moot, he submits that the court should exercise its discretion to hear and decide the issue of his private interest standing to bring the application.

[4] The appellant Lift the Lockdown does not seek to pursue the issue of whether it should have been granted public interest standing.

[5] After hearing from the parties on the mootness issue, the court advised that it would not hear the appeal, and that reasons for that decision would be provided in writing. These reasons explain why we have determined that the appeal with respect to Mr. Baber’s private interest standing to bring the application is moot, and that in the circumstances, we will not exercise our discretion to hear and decide the issue of his private interest standing.

[6] Mr. Baber’s primary concern in asking the court to hear the issue of his private interest standing is that he submits that the pandemic is not over. He submits that it is possible that the provincial government may impose public health restrictions related to the pandemic in the future. He submits that if that happens, and if he seeks to bring a Charter challenge to any future restrictions, he may be prejudiced by the application judge’s decision that he did not have standing to bring the application in this matter. Thus, Mr. Baber asserts that the appeal is not moot because a decision on his private interest standing has the potential to affect his right to bring a challenge to hypothetical future pandemic restrictions.

[7] In the alternative, if the issue is moot, Mr. Baber submits that the court should nevertheless hear and decide the issue of his standing based on the three factors in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. He submits that there is still an adversarial context between the parties; the issue of his standing to challenge pandemic restrictions may recur; and standing is an issue proper to the courts, so that hearing the issue would not trench on the role of the legislature. At base, Mr. Baber is concerned that the application judge’s decision could have precedential effect with respect to his private interest standing to bring an application challenging future pandemic public health restrictions.

[8] We conclude that the issue of Mr. Baber’s private interest standing to bring the application is moot in the sense described in Borowski because the underlying application is moot. A decision by this court on whether he has private interest standing to bring this particular application would not resolve any controversy that affects Mr. Baber’s rights. This is so for two reasons.

[9] First, if public health restrictions related to the pandemic are enacted in the future, and if Mr. Baber seeks to challenge them on the basis of his rights under the Charter, his private interest standing to bring that hypothetical future application would be decided based on the circumstances and evidentiary record in that future application. The application judge’s reasons would not be binding in a hypothetical future application based on legislation and/or regulations in place at that time.

[10] Second, Mr. Baber’s concern relates to private interest standing; however, the application judge did not consider whether he had private interest standing to bring the application. She only considered and ruled on public interest standing. Indeed, before this court, the respondent conceded that the application judge erred in failing to consider the issue of Mr. Baber’s private interest standing. There is no decision from the application judge on private interest standing in this application that could potentially bind a judge considering Mr. Baber’s standing in a hypothetical future challenge if new pandemic restrictions are imposed in the future.

[11] Further, considering the three factors set out in Borowski, it is not appropriate for the court to exercise its discretion to hear the appeal regarding Mr. Baber’s private interest standing.

[12] The first and third factors from Borowski do not raise an issue. The respondent concedes that the first factor in Borowski is met, and that there continues to be an adversarial relationship between the parties. Further, we accept that the discrete issue of Mr. Baber’s standing to bring this particular application is not an issue where this court would intrude into the role of the legislative branch if it exercised its discretion to hear and decide the appeal.

[13] However, we do not exercise our discretion to hear the appeal based on the second set of factors in Borowski. Concern for judicial economy supports the conclusion that this court should not expend scarce judicial resources to hear and decide the issue of Mr. Baber’s private interest standing to bring a moot application, when his standing to bring this application will not govern his standing to bring a hypothetical future application. As we have explained above, Mr. Baber’s concern that the application judge’s decision would pose an obstacle to him asserting private interest standing in the event he brings a Charter challenge to hypothetical future pandemic restrictions is misplaced.

[14] For these reasons, the appeal is dismissed as moot. As neither party sought costs, there is no order as to costs.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“J. Copeland J.A.”