Court File and Parties

COURT FILE NO.: FS-18-2842-00 DATE: 2020-04-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.P. AND: L.K.

BEFORE: J.T. Akbarali J.

COUNSEL: Caroline Kim and Kaitlin A. Jagersky, for the Appellant Gary S. Joseph and Stephen Kirby, for the Respondent Carol Smith, Fred Fischer and Alison Mintoff, for the Proposed Intervener, Medical Officer of Health (City of Toronto)

HEARD: In writing

Publication Ban

A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, prohibiting the publication of:

a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials; b) any evidence or information about the children’s health except for the fact that they are unvaccinated; c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.

Endorsement

Overview

[1] The appellant appeals from the decision of an arbitrator, in which the arbitrator declined to order the vaccination of the parties’ two children. The appellant wants the children to become vaccinated; the respondent does not.

[2] In the motion currently before me, the Medical Officer of Health (City of Toronto) (“MOH”) seeks leave to intervene in the appeal.

Background

[3] The MOH is the top public health official in the City of Toronto. She is responsible for developing and managing public health programs and services in the City of Toronto, including the immunization programs and services that are mandated by the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. She is statutorily responsible for the administration and enforcement of the Immunization of School Pupils Act, R.S.O. 1990, c. I.1 (“ISPA”), and for directing the vaccination of staff and children at child care centres in Toronto pursuant to the Child Care and Early Years Act 2014, S.O. 2014, c. 11, Sched. 1 (“CCEYA”). She is responsible for encouraging, receiving, and investigating reports of adverse events following immunization.

[4] The vaccines identified in the ISPA and the CCEYA are covered by the Publicly Funded Immunization Schedules for Ontario (“Immunization Schedules”). The Immunization Schedules are a list of publicly funded and recommended vaccines along with recommended schedules for their administration.

[5] In discharging her duties, the MOH and her staff deliver vaccination related services, including vaccination clinics, and educational services about immunization for health care providers and the public.

[6] The MOH is also responsible for the management of outbreaks and other public health emergencies within Toronto, including any outbreaks of vaccine-preventable diseases.

[7] The MOH describes her interest in this appeal as aligning with the public interest in promoting and maintaining the health of the community. Her delegate, who swore an affidavit on the motion, deposes that the MOH’s interest in this appeal is informed, in part, by a rising threat to public health, through the proliferation of misinformation surrounding the utility, efficacy, and safety of vaccinations. She deposes that misinformation about vaccines has contributed to vaccine hesitancy, which the MOH and others, including the World Health Organization, have identified as a threat to public health. She explains that this threat arises because a reduction in vaccines due to vaccine hesitancy can reduce herd immunity and lead to outbreaks, and can put vulnerable individuals at risk from vaccine-preventable diseases.

[8] The MOH’s motion for leave to intervene was originally scheduled to be heard on March 26, 2020, in advance of the hearing of the appeal, which, at the time the motion was brought, was scheduled to be heard on April 30, 2020. Unfortunately, after the motion and the appeal had been set down for hearing, the COVID-19 pandemic resulted, among other things, in the shut-down of the court’s physical operations. Thus, the intervention motion was not able to proceed on March 26, 2020. The appeal has been adjourned, and no new date has yet been set.

[9] I held a telephone conference with counsel for the parties and the MOH, at which they proposed that I hear the intervention motion remotely, during the period of the court’s shut down of physical operations. I directed the parties to finish filing all the material for the intervention motion, so that I could review the material with a view to determining whether I could proceed to hear it during the shut-down of the court’s physical operations, having regard to the Notices to the Profession that govern the scope of the court’s remote operations, and if so, whether I should hear it in writing, or with oral submissions, remotely.

[10] I have determined that I can and should hear the intervention motion in writing. I have also determined that the MOH shall be granted leave to intervene in the appeal. These reasons explain my conclusions.

Issues

[11] The issues to be determined on this motion are:

a. Should the motion to intervene be heard during the period of the court’s shut-down of physical operations, and if so, in what manner? b. If the motion can be heard, should the MOH be granted leave to intervene in the appeal?

Should the motion to intervene be heard during the period of the court’s shut-down of physical operations, and if so, in what manner?

[12] There are two Notices to the Profession that currently outline the court’s processes for determining what matters it will hear during the physical shut down of the court’s operations.

[13] In the Notice to the Profession dated March 15, 2020, four types of matters are identified as appropriate for hearing in family law matters, none of which are applicable to this intervention motion. However, that Notice to the Profession also provides that the court will hear any other matter that it deems necessary and appropriate to hear on an urgent basis. The Notice to the Profession cautions that matters falling under this head will be strictly limited.

[14] A subsequent Notice to the Profession dated April 2, 2020 provides that family matters in Toronto will be expanded to include consent motions and case conferences involving one or two urgent issues. This expansion does not provide for the hearing of an intervention motion.

[15] I have considered the application of the Notices to the Profession, and concluded that, in the unusual circumstances of this case, and in the context of the current pandemic, I will hear the intervention motion because I deem it necessary and appropriate to hear it on an urgent basis. I reach this conclusion because the appeal, at its heart, involves questions about the health and vaccination status of the children. It is possible that the appeal itself could become urgent, in the context of the current COVID-19 pandemic, should a vaccine become available, and the parties continue to disagree about whether the children should be vaccinated. At this point, there is no vaccine, so there is no urgency to the appeal. However, should the appeal become urgent, the court must be in a position to be able to address it as quickly as possible. In order to do so, the appeal must be ready to proceed. For that reason, I consider it necessary and appropriate to address the intervention motion now.

[16] The MOH and appellant agreed that, if the motion were to be heard, it could be heard in writing. The respondent argued that, if I were to decide to hear the intervention motion, she wanted the opportunity to make oral submissions; however, she agreed that I had the discretion to determine that the motion could be heard in writing. In my view, it is appropriate that I exercise my discretion to deal with the motion in writing, for several reasons.

[17] First, intervention motions are often dealt with in writing.

[18] Second, my review of the materials makes it clear that the parties have been able to put their arguments forward ably. I see no necessity for oral argument to illuminate any of the issues raised in the materials.

[19] Finally, there are limited court resources available right now for remote hearings, and there are many matters where the remote attendance of parties and counsel is necessary. I take note of the primary objective of the Family Law Rules, O. Reg. 114/99 (“FLR”), set out in r. 2(2), to enable the court to deal with cases justly. I note that dealing with cases justly includes, among other things “giving appropriate court resources to the case while taking account of the need to give resources to other cases”: FLR, r. 2(3)(d). I also note the court’s duty to promote the primary objective by active management of cases, including “if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference”: FLR, r. 2(5)(g).

[20] Accordingly, I conclude that where a matter can be dealt with justly in writing, given the extraordinary circumstances in which the court is now operating as a result of the COVID-19 pandemic, the matter should be dealt with in writing, in furtherance of the primary objective, and particularly the proper allocation of court resources. This is such a case.

Should the MOH be granted leave to intervene in the appeal?

[21] The MOH seeks leave to intervene in this appeal as a friend of the court. The appellant consents to the MOH’s proposed intervention. The respondent opposes it.

A. Does the court have jurisdiction to grant leave to the MOH to intervene?

[22] The MOH seeks leave to intervene under r. 1(7) of the FLR and r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[23] There is no rule in the FLR respecting interventions in family law appeals. Rule 1(7) FLR allows the court to refer to the Rules of Civil Procedure for matters not covered in the FLR.

[24] Rule 13.02 of the Rules of Civil Procedure provides:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[25] The respondent argues that the FLR are intended to act as a complete code where possible, governing the conduct of family law proceedings. She states that reference should only be made to the Rules of Civil Procedure on rare occasions, where the FLR do not cover a matter adequately: Children’s Aid Society of Simcoe (County) v. P.(O.), 2012 ONSC 2349, at paras. 31-32.

[26] The respondent argues that the FLR embody a philosophy peculiar to litigation involving a family, and that instances where it is appropriate to have regard to the Rules of Civil Procedure will be rare: Gray v. Gray, 2017 ONCA 100, at paras. 29-30. She argues that the omission of rules respecting interveners in the FLR should be presumed to be intentional: Greenshields v. R., [1958] S.C.R. 216, at para. 42. She notes specifically that the FLR provisions dealing with appeals from arbitral awards are silent on interventions. She argues that a family law arbitration is a private, self-contained process, and appeals from that process are not the appropriate forum in which to debate public policy.

[27] The cases on which the respondent relies do not deal with interventions in family law appeals. Most of them deal with parties attempting to import the amendments in the Rules of Civil Procedure relating to summary judgment into the FLR provisions respecting summary judgment. Thus, these are not cases where there was a gap in the FLR, but rather, where legislative amendments were made unevenly between the FLR and the Rules of Civil Procedure.

[28] In my view, the absence of a provision addressing intervention in family law appeals is a clear omission in the FLR, and justifies the court looking to the Rules of Civil Procedure, through the application of s. 1(7) FLR. Clearly, by enacting r. 1(7) FLR, the legislature intended that there would be times it would be appropriate to look to the Rules of Civil Procedure when dealing with a matter governed by the FLR.

[29] The Ontario Court of Justice has determined that it has the jurisdiction to grant leave to intervene to a proposed intervener. In J.A. v. J.B., 2010 ONCJ 767, at paras. 39-40, the Ontario Court of Justice granted leave to intervene to the Children’s Aid Society pursuant to r. 13.02 Rules of Civil Procedure, to provide the court with expertise and assistance on the issue of biological parent access to children who were adopted. Justice Thibideau found, at para. 39, that the CAS’s involvement would “allow the Court to make a decision taking into account the broader context for an issue that will have significant and wide-ranging effect on the adoption process and persons involved in that process in Ontario”.

[30] In Halton Children’s Aid Society v. J.T., the Ontario Court of Justice reached the opposite conclusion, finding that, as a statutory court, it did not have the inherent jurisdiction to appoint interveners, and thus could not apply r. 13.02 Rules of Civil Procedure. In O’Connell J.’s view, only the Superior Court of Justice (including the Divisional Court and the Family Court), and the Ontario Court of Appeal, have the inherent equitable power to appoint an intervener as a friend of the court (at para. 37). Whether that conclusion is correct is not before me; however, it is apparent that the rationale advanced in that case does not impact the Superior Court of Justice’s jurisdiction to grant intervener status in family law proceedings.

[31] In addition to r. 1(7) FLR, and r. 13.02 Rules of Civil Procedure, the Superior Court of Justice has a broad and pervasive inherent jurisdiction to govern its own processes, including the power to set aside its own judgments, to appoint a receiver, to design fair procedures, to determine who is a proper party, and generally, all “powers which are necessary to enable it to act effectively within [its] jurisdiction”: Romeo v. Ford Motor Co., 2017 ONSC 6674, at para. 13.

[32] On the respondent’s argument, the Superior Court of Justice could never grant leave to intervene to an intervener in any family law matter, no matter the public interest raised in the proceeding. While it is apparent that most family law matters will deal with matters that are of interest to the parties only, there are cases that can have broad impact which may justify the involvement of an intervener, for the same reasons interveners can assist the court in civil or criminal proceedings – to provide a broader perspective to assist the court, where the issues involved may have impact beyond the immediate interests of the parties. The respondent’s argument urges an unnecessarily restrictive view of the court’s jurisdiction, which would unnecessarily limit the perspectives and assistance available to the court when determining issues with the potential to impact society broadly.

[33] Moreover, a proceeding may raise a matter of public interest when it is an appeal from an arbitration, just as when it is an appeal from a trial. Once parties have left the arbitral process and entered the court system, they are no longer able to take advantage of the privacy that the arbitral process affords. Court proceedings are public. The decisions reached by courts on appeal can have broader societal impact because the court’s decisions are also public. It is worthwhile to note that, in this case, the parties agreed to very broad appeal rights arising out of the arbitration, including permitting appeals on questions of fact.

[34] I thus conclude that I have the jurisdiction to make an order granting the MOH leave to intervene, if the criteria to do so are satisfied. I thus turn to consider whether the MOH satisfies the test to be granted leave to intervene as a friend of the court.

B. The Test for Granting Leave to Intervene

[35] The parties agree that, when determining whether to grant leave to intervene under r. 13.02 Rules of Civil Procedure, the court must consider:

a. The nature of the case; b. The issues that arise in the case; and c. The likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without injustice to the immediate parties: see, e.g., Jones v. Tsige, 2011 ONCA 540, at para. 22, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 ONCA 100.

[36] I consider each of these factors in turn.

i. The Nature of the Case

[37] This proceeding is an appeal between former spouses arising from a private dispute, determined through a private arbitration. A request to intervene in such proceedings will attract greater scrutiny than would be applied to a request to intervene made in the context of public litigation: Jones, at para. 23.

[38] In Jones, at para. 24, Watt J.A. noted that “the issues that arise in cases involving private litigation fall along a continuum”. Some will impact no one other than the immediate parties, while others will have broader application. “The more onerous threshold may be softened somewhat where issues of public policy arise”: Childs v. Desmormeaux, 2003 ONCA 700, at paras. 3 and 10.

[39] The MOH, for her part, acknowledges that greater scrutiny applies to a motion for leave to intervene in an appeal between private parties arising from a private dispute. However, she argues that the private nature of the case is only one factor to be considered. Equally important are the issues that arise and the likelihood that the proposed intervener can make a useful contribution to the appeal: 1162994 Ontario Inc. v. Bakker, 2004 ONCA 30, at para. 5, Jones, at paras. 24-25.

[40] I agree that, because this is an appeal from a private arbitral award in the context of an arbitration between private parties, arising from a private dispute, greater scrutiny is required of the MOH’s motion for leave to intervene.

ii. Issues Raised

[41] The MOH argues that the appeal raises issues that reach beyond the private interests of the immediate parties. She states that she seeks to intervene only on those issues that reach beyond the parties’ private interests and engage public health and policy. Without restricting the scope of her arguments, especially because the appellant’s factum has not yet been filed, she identifies five issues in her materials.

[42] First, the MOH states that the parties have put in issue the utility, efficacy, and safety of vaccines that are identified in the ISPA and Immunization Schedules. She argues that these are cornerstones of a provincial public health policy meant to promote the health of school-attending children and the community at large by immunizing against certain preventable diseases. She states that she has an interest in any attack on the efficacy and safety of the vaccines.

[43] Second, the appeal will address the arbitrator’s acceptance of the respondent’s expert evidence. The MOH identifies the gatekeeping role that the court and other adjudicators play in vetting purported experts and their evidence as an issue of public importance. She argues that the proper discharge of an adjudicator’s gatekeeping function raises questions of public importance that reach beyond the private interests of the parties to this appeal. The MOH has a particular concern if unreliable evidence which could affect the health of the community is admitted as expert evidence. She states that decisions not to vaccinate leave the individual and the community more vulnerable to vaccine-preventable diseases. She is also concerned that, if a court or adjudicator makes a decision not to order vaccination based on inaccurate or unreliable expert evidence, that decision gives credence and authority to the misinformation that she states is feeding a current threat to public health – vaccine hesitancy.

[44] Third, the appeal will address whether the arbitrator ought to have admitted and relied upon public records tendered by the appellant, including documents specifically created by governments and their health agencies to inform health practitioners and the general public about immunization. The MOH argues that the use and reliance on public records is a question of general public importance, especially where a party is self-represented and questions of public health are raised.

[45] Fourth, the MOH argues that the appeal should address what notice can and ought to be taken by courts and other adjudicators of facts related to immunization in Ontario, including the existence of a public policy at all levels of government recommending vaccination. She argues that this is a question of public importance that would impact the treatment and outcome of future, similar cases.

[46] Fifth, the MOH argues that the reasons in this appeal will instruct future adjudicators on the approach to be taken in cases where decisions related to vaccinations at issue. In aggregate, these cases could have an impact on public health in Toronto.

[47] The respondent disagrees that the safety and efficacy of vaccines are at issue in this appeal. She argues that the arbitrator in this proceeding limited his findings to the facts of this particular case, declining to opine on the safety or efficacy of vaccines generally, but focusing instead on the best interests of the parties’ two children.

[48] The respondent made this argument in the context of the parties’ motions for fresh evidence, which I heard and decided in late 2019: A.P. v. L.K., 2019 ONSC 7256, 314 A.C.W.S. (3d) 238. In those reasons I set out in detail the nature of the appeal and the questions put in issue. I did not accept that it was a foregone conclusion that the arbitrator had not made findings regarding the efficacy and safety of vaccinations, given the arbitrator’s conclusions that the children were at risk from vaccination due to a genetic mutation that the respondent has, that he could find no evidence that the children were at risk if they remained unvaccinated, and that the appellant’s evidence was not sufficient to overcome the evidence of specific risk led by the respondent: see para. 109. The exact scope of the arbitrator’s conclusions, and the findings on which he relied to make his decision, will be addressed on appeal, but it cannot be said at this stage that the arbitrator did not consider the safety and efficacy of vaccines. The appellant argues that he did, and as a result, this issue forms part of the appeal.

[49] The respondent also argues that the arbitrator admitted the public documents and relied on them. This issue was also raised in the motions for fresh evidence. I noted, at para. 59, that the arbitrator agreed to admit three government-authored documents on vaccines, but “not necessarily for the truth of their contents”. The respondent had argued at the arbitration that the documents were hearsay. As a result, the question of the proper use of the public documents forms part of the appeal.

[50] In my view, the MOH has identified at least five issues of public importance arising in this appeal.

iii. Will the MOH be able to make a useful contribution to the resolution of the appeal without injustice to the immediate parties?

[51] This consideration requires an inquiry into two factors: the likelihood that the MOH will contribute to the resolution of the appeal, and whether the MOH’s involvement would cause injustice to the immediate parties. I consider each of these separately.

a. Likely Contribution of the MOH

[52] Courts have identified several principles that apply when considering whether a proposed intervener may make a useful and distinct contribution to a proceeding:

a. The proposed intervener must have a real, substantial and identifiable interest in the subject matter and a distinct perspective to be articulated that is different from that of the parties: Craft v. Toronto (City), 2019 ONSC 1151, at para. 63; b. The likelihood of intervention is a function of many variables including, but not only, the experience and expertise of the proposed intervener: Jones, at para. 25; c. The proposed intervener must offer something more than the repetition of a party’s argument, though some overlap may be permitted: Craft, at para. 62, Halton, at para. 45. d. It is desirable to have all relevant possibilities brought to the court’s attention, including submissions on the impact of its judgment. This is true even where the intervener may bring only a slightly different perspective to be considered: Craft, at para. 64. e. The fact that the position of a proposed intervener is generally aligned with the position of one of the parties is not a reason to deny it leave if the proposed intervener can make a useful contribution to the analysis of the issues before the court: Seaduto v. Cucu, 2017 ONCA 224, at para. 11.

[53] The MOH has a real, substantial and identifiable interest in the issues raised in this appeal, given her mandate. She has specialized knowledge, expertise, and perspective on issues involving vaccinations and public health.

[54] The respondent argues that the MOH’s position in this case duplicates the appellant’s position. She also argues that the appellant’s fresh evidence includes an affidavit from the Medical Officer of Health for Peel Public Health, Dr. Loh. As a result, she argues that the MOH is unlikely to provide any meaningful contribution to the appeal as intervener, because Dr. Loh’s affidavit is already in the record.

[55] I disagree with the respondent. The appellant’s perspective is that of a father who wants his children to become vaccinated. The MOH offers a different perspective, that is, a public health perspective.

[56] The MOH identifies the arguments and submissions she proposes to make if granted leave to intervene. Some of these are that: (i) vaccine hesitancy stemming from misinformation about vaccines is a threat to individual and public health; (ii) in cases touching on public health issues, the failure of an adjudicator to act as gatekeeper creates the added risk of threatening the health of the community by giving credence and authority to misinformation; (iii) courts and other adjudicators can and should admit and rely upon public health records; and (iv) courts and other adjudicators can and should take judicial notice of certain facts related to immunization in Ontario. These arguments are informed by the MOH’s unique perspective.

[57] Moreover, the fact that the Medical Officer of Health for Peel Public Health is an affiant does not mean that the MOH’s participation will be duplicative. Dr. Loh’s role in this appeal has concluded. He delivered an affidavit in support of the appellant’s appeal, and he has been cross-examined on his affidavit. He has no ability to make arguments or offer his perspective at the appeal. Rather, the appellant will rely on his evidence to support the appellant’s own arguments from his perspective as a parent who supports vaccination.

[58] The fact that the MOH and the appellant both support vaccination does not make the MOH’s contribution duplicative. Rather, the MOH can make a unique contribution and offer a distinct perspective on the issues raised in this appeal, which may assist the court in understanding the impact of its judgment beyond the private interests of the parties and their children.

b. Prejudice

[59] The last factor requires the court to consider whether the involvement of the proposed intervener will create any injustice to the parties.

[60] The MOH has indicated it is prepared to accept the record as it stands and to respect any timetables imposed by the court. Thus, the MOH’s involvement would not delay the appeal.

[61] The respondent argues that the intervention of the MOH would cause prejudice in three particular ways.

[62] First, the respondent argues that the MOH’s involvement would require the respondent to respond to a duplication of the appellant’s position on appeal. I reject this argument.

[63] I have already determined that the MOH’s position will not be duplicative of the appellant’s; it will be different because it will be informed by the MOH’s distinct perspective. However, if the positions taken by the appellant and the MOH were duplicative, the respondent would only need to respond to them once in any event.

[64] Because the MOH’s position will be different, the respondent may choose to respond to the MOH’s positions. In this sense, the respondent may bear the burden of some increased cost. However, in my view, this is a limited burden. The MOH has indicated it accepts the record as it stands, so the parties’ increased costs are limited to addressing the legal submissions the MOH would make as intervener. If the limited costs of responding to different arguments raised by an intervener amounted to prejudice preventing an intervention, no intervener would ever be granted leave.

[65] Second, the respondent argues that the MOH’s proposed intervention creates “further issues” with respect to the evidence of the Medical Officer of Health for Peel Public Health. She expands on these “further issues” in her factum, at para. 34, as follows:

Dr. Loh has already acknowledged that he sees himself as an advocate for public health and vaccinations in this case. This, in and of itself, renders his evidence highly problematic. Further to this, his evidence mirrors the positions set out in the MOH’s materials. As made clear by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., “an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court.” Permitting the MOH to intervene in this case will accordingly create further issues with the evidence of Dr. Loh, and force [the respondent] to respond to the same position presented from the position of both witness and intervenor. It would be procedurally unfair to permit the MOH to supplement the evidence/advocacy of Dr. Loh, the MOH for Peel Public Health, through further submissions before this court.

[66] Elsewhere in her factum, the respondent states that Dr. Loh is formerly the subordinate of the MOH and is now her colleague. She states that the MOH’s request to intervene “accordingly raises further issues in light of the professional relationship” between the MOH and Dr. Loh. The “further issues” are not expanded upon, except in the paragraph I quote above, so I assume that the further issues she refers to arising out of Dr. Loh’s professional relationship with the MOH are the same ones particularized in the paragraph from the respondent’s factum that I quote above.

[67] If the respondent wishes to argue that Dr. Loh is not an impartial expert, she will have her chance to do so at the appeal. In my view, leaving aside the question of whether a medical officer of health taking positions in support of vaccines is impermissible advocacy, Dr. Loh’s partiality or impartiality has nothing to do with the MOH’s motion for leave to intervene.

[68] In my view, no procedural unfairness results from the MOH being permitted to intervene simply because Dr. Loh has sworn an affidavit in these proceedings. There is nothing procedurally unfair with an intervener taking positions supported by an affiant’s evidence, and a responding party being required to address both the other party’s evidence and the intervener’s submissions.

[69] Finally, the respondent argues that the intervention of the MOH is not in the best interests of the children. She argues that this case has attracted media attention, and the intervention and participation of the MOH will result in further publicity. She argues that the children are already anxious about the publicity this case has garnered. She states it is not in their best interest to permit the MOH to intervene and thrust the children into the middle of a highly publicized debate regarding its policies.

[70] The children are already in the midst of a highly publicized debate about vaccines. I dealt with the potential harm to the children from the public interest in this case when I determined a motion for a publication ban: A.P. v. L.K., 2019 ONSC 4010. I made orders limiting the information that can be published to protect the children’s identity, in their best interests. It is speculative to suggest that the intervention of the MOH in this case will add to the public interest in it. The public interest in this case existed well before the MOH expressed any intention to seek leave to intervene.

Conclusion

[71] The MOH has a particular expertise and a distinct perspective that is different from that of the parties. Even applying heightened scrutiny to her request for leave to intervene in this private litigation, I conclude that she is likely to make a useful and distinct contribution to the determination of the issues of public importance raised in this appeal. I find that granting her leave to intervene will not prejudice either of the parties.

[72] Accordingly, I make the following order:

a. The MOH shall be granted leave to intervene in this appeal. She shall be entitled to file a factum of no more than 20 pages. b. The MOH shall follow all timelines set by the court for the hearing of the appeal. c. The MOH shall be entitled to make oral submissions at the appeal. The length of those submissions shall be determined by me at an appropriate time, either when the appeal is able to be re-scheduled, or after delivery of the MOH’s factum on the appeal. d. The MOH shall not be entitled to costs in this appeal, and no costs award shall be made against it. e. There shall be no costs of this motion. f. This endorsement is an order of the court, enforceable by law from the moment it is released.

Next Steps

[73] I have already advised the parties that, in my view, the appeal does not meet the requirements of the Notices to the Profession to be heard at this time. However, as I have already noted, I am also cognizant that the hearing of the appeal may become urgent given the current public health crisis in which we are now. When the appeal should be heard is an evolving question, which may be impacted by future Notices to the Profession issued by the court.

[74] Accordingly, I ask counsel for the parties and the MOH to consult with each other with a view to agreeing on a timetable for the exchange of factums, in order to ready the appeal for hearing, and advise me what they have agreed to within ten days of the release of these reasons. If they cannot agree, the parties shall schedule a telephone conference with me, through my assistant, at which I will set a timetable for the remaining steps to perfect the appeal.

J.T. Akbarali J. Date: April 30, 2020