Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231026 DOCKET: COA-23-CV-0015

MacPherson, Lauwers and Copeland JJ.A.

BETWEEN

Sarah Harjee, Evan Kraayenbrink, Hibah Aoun, Sarah Lamb, Sam Sabourin, Jackie Ramnauth, Mark McDonough, Linda McDonough and David Cohen Applicants (Appellants)

and

His Majesty the King in Right of the Province of Ontario Respondent (Respondent)

Counsel: Darren Leung and Allison Pejovic, for the appellants Sean Hanley, Emily Owens, and Sean Kissick, for the respondent

Heard: October 24, 2023

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated December 13, 2022.

Reasons for Decision

[1] At the appeal hearing, we heard submissions from the parties on the issue of mootness. Following those submissions, we dismissed the appeal as moot, with reasons to follow. These are our reasons.

[2] This appeal involves a constitutional challenge to public health measures enacted by the Ontario government in the fall of 2021. The measures at issue required proof of vaccination for COVID-19 for a person to enter a restaurant, bar, sporting arena, movie theatre, fitness facility, and certain other businesses. Those measures were enacted by Ont. Reg 364/20 (“the Regulation”), under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“the Act”).

[3] The appeal is moot. On March 1, 2022, the provincial government ceased enforcement of the requirement that businesses and other organizations covered by the Regulation check for proof of vaccination. On April 27, 2022, the government revoked the Regulation and all other orders made under the Act. The revocation rendered this appeal moot. There would be no practical effect to the declaratory relief sought by the appellants – constitutional declarations of invalidity in relation to portions of the Regulation. Further, in the circumstances of this appeal, we do not accept that the appellants’ claim for nominal damages cures the mootness.

[4] Nor do we accept the appellants’ argument that we should exercise our discretion to hear and decide the appeal pursuant to the principles enunciated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Although we accept that there is still a sufficient adversarial context under the first branch of the Borowski analysis, we have concerns under the second and third branches of the analysis. Our concerns focus on judicial economy and the utility of this court deciding the issues in this case now that the Regulation has been revoked.

[5] The legal issues raised in this case require fact-specific analysis. By way of example, the freedom of religion claims raised by some of the appellants require an assessment of, among other things, whether the measures at issue interfere in a more than trivial manner with the appellants’ ability to act in accordance with their religious beliefs: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 32. This assessment requires a fact-specific consideration of the asserted religious claims, of the asserted impact of the particular regulation, and, if a Charter breach is found, of the evidence in relation to justification under s. 1 of the Charter. We are not satisfied that it is a wise use of limited judicial resources to decide these issues in the face of the Regulation having been revoked. While there may be new public health measures taken in this, or a future, pandemic, there is no basis to assume such measures would take the same form as the revoked Regulation.

[6] Nor are we satisfied that there is a need for additional guidance from this court on the legal principles applicable to consideration of Charter rights and government justification for limits on Charter rights in the context of public health responses to the COVID-19 pandemic. This court recently provided guidance on these issues in Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134. Further, courts across the country have provided guidance on the constitutionality of government public health measures in response to the pandemic [1] – in each case finding that public health restrictions either did not breach Charter rights or were justified under s. 1 of the Charter.

[7] Our point is not that the factual circumstances in these other cases are identical to the current appeal; rather, it is that there is sufficient judicial guidance on the applicable principles. To the extent that governments may enact public health measures in the future that are challenged on constitutional grounds, the assessment of the constitutionality of those measures is better considered in the presence of a live controversy, based on the factual context at issue and the record in support of constitutional claims asserted. We are not persuaded that these issues are so evasive of review as to warrant deciding this moot appeal.

[8] This is not an appropriate case for costs. Although the respondent raised the issue of mootness at an early stage of the proceedings in the Superior Court, it did not argue that the appeal was moot until the court requested submissions on mootness shortly before the hearing.

[9] The appeal is dismissed as moot. No order as to costs.

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”

“J. Copeland J.A.”

[1] See for example: Canadian Constitution Foundation v. Attorney General of Canada, 2021 ONSC 4744; Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111; Banas v. HMTQ, 2022 ONSC 999; Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335 (Div. Ct.); Maddock v. British Columbia, 2022 BCSC 1605 (appeal dismissed as moot, 2023 BCCA 383); Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 1606 (appeal of individual applicant pending, 2023 BCCA 383); Beaudoin v. British Columbia, 2021 BCSC 512 (appeal dismissed, 2022 BCCA 427); Grandel v. Saskatchewan, 2022 SKKB 209; Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219 (appeal dismissed, 2023 MBCA 56); Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455; Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (appeal dismissed as moot, 2023 NLCA 22); Spencer v. Canada (Minister of Health), 2021 FC 621, [2021] F.C.R. 581 (appeal dismissed as moot, 2023 FCA 8).