Aboriginal Legal Services v. Attorney General for Ontario, 2020 ONSC 4388

CITATION: Aboriginal Legal Services v. Attorney General for Ontario, 2020 ONSC 4388

TEMPORARY DIVISIONAL COURT FILE NO.: CVD-TOR-38-20JR

DATE: 20200717

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ABORIGINAL LEGAL SERVICES, BLACK LEGAL ACTION CENTRE, CANADIAN CIVIL LIBERTIES ASSOCIATION AND HIV & AIDS LEGAL CLINIC ONTARIO Applicants

AND: ATTORNEY GENERAL FOR ONTARIO, MINISTER OF HEALTH (ONTARIO) AND LIEUTENANT GOVERNOR IN COUNCIL Respondents

BEFORE: FAVREAU J.

COUNSEL: Alexi N. Wood, Jennifer Saville and Lilliane Cadieux-Shaw, for the Applicants Hart Schwartz, Hera Evans, Sean Hanley and Nadia Laeeque, for the Respondents

HEARD at Toronto by telephone conference: July 15, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management conference conducted by teleconference on July 15, 2020, which was held in response to a request by the applicants to schedule an application for judicial review in accordance with the protocol set out in the May 13, 2020, Notice to the Profession - Divisional Court.

[2] The matter involves an application to judicially review an order made by the Lieutenant Governor in Council in the context of the COVID-19 pandemic under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. The applicants argue that the order, which permits specified persons, such as police officers and paramedics, to obtain personal health information about the COVID status of individuals in Ontario, is not authorized by the Act and is contrary to the Charter.

[3] In advance of the case conference, I directed that the parties confer to develop a timetable for the hearing of the application for judicial review. During the case conference, I was advised that the parties were not able to agree on a timetable.

[4] The applicants requested that the matter be scheduled on an expedited basis. During the case conference, they suggested that the matter should be scheduled for late August. To date, they have prepared a number of affidavits from fact witnesses but have not yet finalized or delivered their expert evidence. They hope to have their expert evidence completed and served on counsel for the respondents by the end of July.

[5] The respondents take the position that it is premature to schedule the application at all because the order at issue expires on July 22, 2020, and it is not known at this time whether it will be renewed. They also argue that they have not yet received the applicants' expert evidence which makes it unrealistic to set a deadline for responding materials.

[6] In order to assess the urgency of the matter, during the case conference I inquired of the applicants' counsel whether any of the affidavits obtained to date contain evidence of how the order has been used up to now and the impact it has had on individuals. The applicants' counsel candidly advised that they have no such direct evidence at this time.

[7] Given the uncertainty over the continuation of the order, that the applicants have not yet served their expert evidence and that there is no current evidence of urgency, I declined to set a schedule for an expedited hearing. However, contrary to the respondents' position that not date should be scheduled, I did set a date for the hearing on November 17, 2020, which is a date on which counsel are available and one of the next available dates for a full day application in the Divisional Court in Toronto for non-urgent matters. This date may change depending on matters addressed below.

[8] In the event the order is not renewed on July 22, 2020, the respondents may request a case conference later next week for the purpose of addressing the issue of whether the application is moot, and, in particular, whether a motion date should be set to address the issue of mootness.

[9] In the event the order is renewed and no case conference is scheduled for next week, I am scheduling another case conference for Monday, August 10, 2020 at 10:15. Counsel are to use the following call-in information:

Local Dial-In Number: 1- 866-500-5845

Conference I.D.: 6962433#

[10] The purpose of the August 10th case conference will be to set a timetable leading to the hearing on November 17, 2020. Given that the applicants intend to serve their expert evidence by the end of July, this should give the parties an opportunity to confer in advance of the case conference to attempt to agree on a timetable for the exchange of materials for the November 17, 2020 hearing date. In the event the parties do not reach agreement on a timetable, I will set a timetable on that date.

[11] Finally, if at any time the applicants obtain information that they believe supports a request for an expedited or urgent hearing, they can request another case conference or address the issue at the August 10, 2020 case conference and I can re-consider the request that the matter be scheduled on an earlier date.

[12] During the case conference, counsel for the applicant requested an order permitting the issuance of the notice of application for judicial review. As I indicated during the case conference, given the current suspension of normal court operations due to the COVID-19 pandemic, there is no need for the notice of application for judicial review to be formally issued for the matter to proceed to a hearing. The matter will proceed as scheduled at the next case conference, including directions for the service and filing of materials.

[13] If counsel believe there are points from the case management conference that are not reflected in this endorsement, they should notify the court by email as soon as they can.

FAVREAU J.

Date: JULY 17, 2020