CITATION: Ontario Nurses’ Assn. v. Chief Medical Officer of Health (Ontario), 2021 ONSC 5999

DIVISIONAL COURT FILE NO.: 156/21

DATE: 20210927

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., D.L. Corbett J. and Favreau JJ.

B E T W E E N:

ONTARIO NURSES’ ASSOCIATION,

Danielle Bisnar, Philip Abbink, Tyler

VICKI McKENNA and BEVERLY

Boggs and Kylie Sier, for the Applicants

MATHERS

Applicants

• and -

CHIEF MEDICAL OFFICER OF HEALTH,

William R. MacLarkey, Lisa Brost, Zachary

DR. DAVID WILLIAMS

Green and Daniel Guttman, for the

Respondent

Respondent

Heard by Videoconference: May 12, 2021

REASONS FOR DECISION

Per curiam:

OVERVIEW

[1] The applicants seek an order requiring the respondent to amend two directives issued under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA” or the “Act”) to reflect scientific evidence of aerosol and asymptomatic transmission of COVID-19. They submit the directives ought to require the use of N95 masks in a broader range of circumstances in hospitals, long-term care facilities, and other health care contexts than they presently do. In the alternative, they seek an order quashing the directives.

[2] Given the urgency with which the applicants asked us to deal with this matter, we reserved our decision briefly after the hearing, following which we released an endorsement advising the parties that the application was dismissed for reasons to follow. These are our reasons.

BACKGROUND

COVID-19

[3] SARS-CoV-2, also known as “COVID-19”, has so dominated world events over the past 18 months that little can be said about it that most readers of these reasons will not already know.

[4] COVID-19 is a viral respiratory disease caused by the SARS-2 coronavirus. The disease first emerged in China in late 2019 and quickly spread throughout the world. On January 20, 2020, the Director General of the World Health Organization (“WHO”) declared a public health emergency of international concern. Less than two months later, on March 11, 2020, the WHO officially classified COVID-19 as a world-wide pandemic.

[5] The first case of COVID-19 in Ontario was reported at Sunnybrook Hospital, in Toronto, on January 25, 2020. Since then, hundreds of thousands of cases have been reported in Ontario, according to recent statistics from Public Health Ontario (“PHO”), and nearly 7,000 people had died from the disease at the time this application was commenced.

[6] Severe illness from COVID-19 increases in likelihood with age. According to one of the applicant’s experts, the fatality rate at the time the application was brought ranged from 0.07 percent in those under age 20 to 32 percent in those over 70 years of age. At the time, the overall fatality ratio was approximately 0.7% in Ontario.

The Applicants

[7] The applicant union (the “ONA”) represents 68,000 registered nurses (“RNs”) and allied health care professionals in facilities across Ontario, including 130 hospitals and nearly 200 long-term care (“LTC”) homes. ONA members are regularly exposed to patients with unknown, suspected, and confirmed cases of COVID-19. According to the applicant, at least 611 of its members had tested positive for COVID-19 before the onset of the third wave of the pandemic in Ontario and one member had died from the disease at the time the application was commenced.

[8] The individual applicants, Vicki McKenna and Beverly Mathers, are the President and Chief Executive Officer, respectively, of the ONA.

The Respondent

[9] The respondent, David Williams, (referred to in these reasons as the “CMOH” when discussing the statutorily-created position occupied by the respondent) was appointed by the Lieutenant Governor in Council under the HPPA, the purpose of which is “to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario”: HPPA, ss. 2 and 81(1).

[10] Pursuant to the HPPA, the CMOH has the authority to issue directives to health care providers in certain circumstances. Section 77.7 of the Act provides:

Directives to health care providers

77.7 (1) Where the Chief Medical Officer of Health is of the opinion that there exists or there may exist an immediate risk to the health of persons anywhere in Ontario, he or she may issue a directive to any health care provider or health care entity respecting precautions and procedures to be followed to protect the health of persons anywhere in Ontario.

Precautionary principle

(2) In issuing a directive under subsection (1), the Chief Medical Officer of Health shall consider the precautionary principle where,

(a) in the opinion of the Chief Medical Officer of Health there exists or may exist an outbreak of an infectious or communicable disease; and

(b) the proposed directive relates to worker health and safety in the use of any protective clothing, equipment or device.

Must comply

(3) A health care provider or health care entity that is served with a directive under subsection (1) shall comply with it.

No conflict with OHSA

(5) Despite subsection (1), in the event of a conflict between this section and the Occupational Health and Safety Act or a regulation made under it, the Occupational Health and Safety Act or the regulation made under it prevails.

(6) In this section,

“health care provider or health care entity” means:

1. A regulated health professional or a person who operates a group practice of regulated health professionals.

2. A service provider within the meaning of the Home Care and Community Services Act, 1994 who provides a community service to which that Act applies.

[11] The CMOH’s powers under this section are at the centre of the dispute in this case. So, too, are the principles that must guide the exercise of those powers and the controversy surrounding how COVID-19 is transmitted to the people those powers are designed to protect.

The Precautionary Principle

[12] The precautionary principle referred to in section (2) above was perhaps most famously articulated by Justice Archie Campbell in the Report of the SARS Commission, entitled Spring of Fear (Volume 1, December 2006) (“SARS Commission Report”). In his report, Justice Campbell highlighted the important distinction between infection control and worker safety in the face of a novel coronavirus. He pointed out that while infection control measures must rely on evolving science, worker safety cannot. He wrote, at p. 12:

When it comes to worker safety in hospitals, we should not be driven by the scientific dogma of yesterday or even the scientific dogma of today. We should be driven by the precautionary principle that reasonable steps to reduce risk should not await scientific certainty.

[13] The HPPA was amended following the release of the SARS Commission Report to require that the CMOH consider the precautionary principle when issuing directives relating to the health and safety of health care workers in Ontario. The applicant submits the respondent has failed to do that in this case. To understand the basis for that submission, some discussion about how COVID-19 is transmitted and how to prevent that transmission is necessary.

Contact/Droplet v. Aerosol Viral Transmission

[14] Different viruses use different methods to infect their hosts. Some are transmitted by droplets of secretions, such as saliva, which are expelled by infected people. These droplets may infect another person directly or indirectly. Direct infection can occur when the droplets make contact with the victim (“contact/droplet transmission”). Indirect infection can occur when the victim makes contact with a surface that has been contaminated by the droplets (“fomite transmission”). For the purpose of these reasons, infection by both direct and indirect contact will be referred to as “contact/droplet” transmission.

[15] Other viruses, like measles, tuberculosis, and varicella (chicken pox), travel through the air as aerosols. According to the expert evidence introduced in this case, the term “aerosols” refers to particles that are less than 100 microns in diameter and are suspended in the air. Aerosols that are less than 10 microns in diameter are considered buoyant. Buoyant aerosols are capable of overcoming gravity and remaining suspended in the air for longer periods of time than other, larger, particles. Generally speaking, the smaller the aerosolized particle, the further it is able to travel.

[16] “Aerosol transmission” refers to an infection that is spread through exposure to aerosolized particles containing a virus, which infect via inhalation.

Surgical Masks v. N95 Respirators

[17] The different modes of viral transmission require different means of protecting the uninfected. In the case of respiratory viruses like COVID-19, one of those methods is the use of masks or respirators. While masks and respirators both cover the nose and mouth of the wearer, there are important differences between the two.

[18] Properly fitted N95 respirators prevent both the outward escape of aerosols generated by the wearer and the inhalation of aerosols generated by others. Surgical masks, by contrast, do not prevent aerosols travelling in either direction. Thus, when it comes to health care workers and viruses that are transmitted via aerosols, only N95 respirators offer appropriate protection to both the patient and the practitioner.

The Directives

[19] Since the advent of the COVID-19 pandemic in Ontario in March 2020, the respondent has issued a number of directives under s. 77.7. Two of them are in issue in this proceeding.

[20] Directive #1, issued on March 30, 2020, is aimed at health care providers and health care entities, as those terms are defined in s. 77.7(6) of the Act. Directive #5, issued on October 8, 2020, is aimed at public hospitals and LTC homes, both of which are defined in other legislation. Together, the directives apply to most of the places in which ONA members are employed, including physician’s offices.

[21] Both directives address the use of personal protective equipment (“PPE”) by health care workers in the course of their work. Directive #5 is more comprehensive than Directive #1 and, by its own terms, prevails in the case of any conflict between the two. Copies of the directives are attached at Appendix “A” to this decision.

[22] The directives are based on the premise that COVID-19 is spread by close contact and respiratory droplets. Together, they establish “contact/droplet precautions” as the presumptive infection control measures for health care workers, with “airborne precautions” required only when specific procedures are planned or probable.

[23] Both directives require that, “at a minimum”, contact and droplet precautions must be used by workers for all interactions with suspected, presumed, or confirmed COVID-19 patients. These precautions include gloves, face shields or goggles, gowns, and surgical/procedure masks. Both directives also require that greater precautions be taken when “aerosol-generating medical procedures” (“AGMPs”) are planned or undertaken on such patients in order to protect against the possibility of airborne transmission of the virus. These AGMPs include intubation and cardiopulmonary resuscitation of patients. In addition, both directives provide that workers must perform “point-of-care risk assessments” (“PCRAs”) before every patient interaction. Finally, both directives refer to a document entitled Updated IPAC [Infection Prevention and Control] Recommendations for Use of Personal Protective Equipment for Care of Individuals with Suspect or Confirmed COVID-19 (the “Technical Brief”), a document prepared by Public Health Ontario (“PHO”), upon which the respondent relies heavily in this case.

The Technical Brief

[24] PHO is an agency of the Ontario government whose stated purpose is to protect and promote the health of all Ontarians. From the outset of the pandemic, PHO regularly published Technical Briefs in which it reviewed data being gathered by public health agencies and studies being undertaken by researchers around the world. Based on this information, PHO made recommendations on how to prevent infection by the novel coronavirus among health care workers by adopting certain Infection Prevention and Control (“IPAC”) measures.

[25] The Technical Briefs published early in the pandemic recommended that both contact/droplet and airborne IPAC measures should be adopted. A Technical Brief published in February 2020, for example, stated:

Most respiratory infections are droplet/contact spread. The only diseases known to be transmitted person-to-person by the airborne route are tuberculosis, measles and chickenpox. However, using a precautionary approach that combines Airborne Precautions and Droplet/Contact Precautions should be observed until the epidemiology of the novel agent is established.

[26] By March 2020, however, PHO was no longer recommending that precautions against airborne transmission be used except when AGMPs were “planned or anticipated to be performed on patients with suspected or confirmed COVID-19.” In a Technical Brief dated March 10, 2020, PHO wrote:

Because the epidemiologic data was evolving and little was known about COVID-19, the Ministry applied the precautionary principle and initially recommended the use of N95 respirators for patient care and specimen collection/testing, as well as patient placement in an airborne infection isolation room (AIIR), where possible. This was to be reviewed as new information became available.

After two and a half months of global clinical experience and updated scientific and epidemiological evidence, routes of transmission for COVID-19 reveal the following:

• COVID-19 cases and clusters demonstrate that Droplet/Contact transmission are the routes of transmission.

• The majority of cases are linked to person-to-person transmission through close direct contact with someone who is positive for COVID-19.

• There is no evidence that COVID-19 is transmitted through the airborne route.

[27] On March 12, 2020, the respondent issued Directive #1. The directive was revised on March 30, 2020, to the version at issue here.

[28] On March 30, the respondent also issued Directive #5. This directive was initially aimed only at hospitals. It was reissued on March 31, 2020, with minor amendments. On April 10, 2020, it was expanded in its application to include LTC homes. The version under attack in this application was issued on October 8, 2020.

[29] All of these iterations have required IPAC measures on the basis that COVID-19 is transmitted by contact/droplets, rather than by aerosols, except during AGMPs.

The Scientific Debate About COVID-19 Transmission

[30] For a period of time after the publication of the Technical Briefs in March 2020, the scientific world all seemed to be on the same page as to how COVID-19 was transmitted from person-to-person. However, according to the applicants’ expert on infectious diseases, that changed in or about July 2020.

[31] Dr. David Fisman is a professor at the Dalla Lana School of Public Health at the University of Toronto and was the Head of the Division of Epidemiology at the school. According to Dr. Fisman, in July 2020, scientists began to question the conclusion that COVID-19 was spread by contact/droplet transmission only. Dr. Fisman deposes that, on July 6, 2020, 239 scientists from around the world issued a letter arguing for the need to acknowledge the aerosol transmission of COVID-19. The WHO did this on July 9, 2020, when it acknowledged aerosols as a significant mode of transmission of the virus. By October 5, 2020, the United States Centers for Disease Control (“CDC”) had also recognized the potential for airborne transmission and, by November 5, 2020, the Public Health Agency of Canada (“PHAC”) had done likewise. Dr. Fisman is now of the view that there is “overwhelming scientific evidence that COVID-19 is predominantly transmitted via aerosol particles.”

[32] The respondent’s epidemiologic expert strongly disagrees. Dr. Jerome Leis is the Medical Director of Infection Prevention and Control at Sunnybrook Health Sciences Centre, in Toronto, and an Associate Professor at the Temerty Faculty of Medicine of the University of Toronto. According to Dr. Leis, he and other IPAC experts around the world believe that aerosols only play “a minor role” in the transmission of COVID-19. Among other things, Dr. Leis relies on the low “secondary attack” and “basic reproduction” rates of COVID-19 as compared to known airborne viruses, as well as the degree to which contact/droplet infection IPAC measures have succeeded at preventing the spread of COVID-19 in health care settings. He points out that the WHO, CDC, and PHAC all continue to regard contact and droplets as the primary mode of transmission.

[33] Both of these experts have impressive credentials and make persuasive arguments in support of their opinions. Fortunately, as we will explain, we are not required to have to choose the opinion of one over the other. For now, it is enough to note that they are different. This difference of opinion is one of the two principal facts relied upon by the applicants in support of their application.

Asymptomatic Transmission

[34] The other fact is one about which there is no difference of opinion: the possibility of transmission of the virus by asymptomatic individuals. According to Dr. Fisman, the viral loads of people infected with COVID-19 peak immediately before the onset of symptoms. According to Dr. Leis, 40 percent of infections are asymptomatic.

[35] These two facts – the possibility of infection by aerosols and by asymptomatic individuals – form the foundation of this application.

The Application

[36] The applicants submit that the possibility of asymptomatic and aerosol transmission requires that Directives #1 and #5 be changed. They argue that the directives should no longer be based on the premise that COVID-19 is transmitted by contact/droplets and that the directives should require that N95 masks be worn by health care workers in a much broader set of circumstances than the directives presently contemplate. The applicants maintain that the precautionary principle requires that the respondent acknowledge that COVID-19 is transmitted by aerosols and that the respondent’s failure to do so has resulted in health care workers being denied N95 masks or discouraged from using them even when they have determined they are necessary following a PCRA. They submit that the respondent’s failure to acknowledge aerosol transmission is placing the lives of ONA members at risk, thereby breaching their rights to life and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms (“Charter”).

[37] Based on these submissions, the applicants seek an order in the nature of mandamus requiring the CMOH to amend the directives to reflect the risk of aerosol and asymptomatic transmission of COVID and to require the use of fitted N95 respirators or equivalent or better in health care facilities in all of the following circumstances:

(a) where a health care worker is providing any clinical care to a suspected, probable or confirmed COVID positive patient or resident;

(b) where a health care worker is assigned to a unit or area where suspected, probable or confirmed COVID patients or residents are present;

(c) where a health care worker is anticipated or likely to perform an AGMP, whether or not the COVID status of the patient or resident is known;

(d) where a health care worker is providing care in higher risk settings as defined by:

(i) poor ventilation;

(ii) the likelihood of aerosol generating behaviours;

(iii) the presence of individuals with undifferentiated risk or unknown COVID status; and/or

(iv) the reason(s) that the patient or resident has presented for care, including but not limited to care that is provided in outpatient settings, mental health settings, COVID test centres, long term care facilities, ICUs, CCUs, and emergency rooms; and

(e) where a health care worker performs a PCRA and identifies a need for an N95 respirator for other circumstances not prescribed.

[38] In the alternative, the applicants seek an order in the nature of certiorari quashing the directives and suspending the effect of that order for a period of 30 days.

ISSUES

[39] The parties to this application raise the following four issues:

(1) What is the standard of review?

(2) Are the directives reasonable?

(3) Do the directives breach s. 7 of the Charter?

(4) If the directives are unreasonable or breach the Charter, are the remedies sought available?

ANALYSIS

What is the standard of review?

[40] Most applications for judicial review involve the review of adjudicative decisions. The judicial review of an adjudicative decision is an exercise in which the decision is reviewed solely on the basis of the facts existing at the time the decision was made. However, the CMOH’s directives under the HPPA are different. They involve what has been called “quasi-legislative” decisions: Williams v. Ontario, 2009 ONCA 378, at para. 28.

[41] The parties agree that the standard of review for both types of decision is the same: reasonableness. As the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: para. 85.

[42] But while the standard of review of both adjudicative and quasi-legislative decisions is the same, there is an important distinction between the two, at least in this particular case. In the case of the quasi-legislative decisions that resulted in Directives #1 and #5, what may have been reasonable at one point in time may become unreasonable at another. This is because of the CMOH’s duty under s. 81(3) of the HPPA, which requires the CMOH to “keep himself or herself informed in respect of matters related to occupational and environmental health.”

[43] The applicants submit that this has happened here.

Are the directives reasonable?

[44] A decision may be unreasonable because of errors in the reasoning process that led to it (internally flawed), untenability of the decision in the light of the applicable facts and law (contextually flawed), or both: Vavilov, paras. 101, 102, and 105. The applicants submit that the directives are both internally and contextually flawed.

[45] The applicants argue that the directives are internally flawed because they contain an inconsistency. They submit that, despite recognizing that N95 respirators are necessary for AGMPs because of the associated risk of aerosol transmission, the directives fail to adopt similar precautions in other circumstances where the risk of aerosol transmission “is established”: AF, para. 54.

[46] The applicants’ principal submission, however, is that the directives are contextually flawed. They submit that the directives are unreasonable because, by failing to acknowledge the risks of aerosol and asymptomatic transmission, the directives fail to account for relevant evidence required to give effect to the precautionary principle: AF, paras. 43 and 50. The applicants submit that the “overwhelming” evidence of aerosol transmission of the virus by asymptomatic carriers vastly exceeds the threshold required by the precautionary principle and mandates that the CMOH amend the directives to require the use of N95 respirators in the broad range of health care scenarios referred to earlier: AF, para. 52.

[47] In a related submission, the applicants contend that the respondent has failed to adduce any evidence that he considered these risks and the precautionary principle when he issued the directives: ARF, para. 28.

[48] We are not able to accept any of these submissions. As we will explain, both expressly and by implication, the directives take these risks into account and apply the precautionary principle. No other evidence is required on the part of the respondent. The onus of demonstrating that the directives are unreasonable is on the applicants, not the respondent: Vavilov, para. 100. The applicants have failed to meet that onus. We are not satisfied on the evidence either that the fact that the directives are based on the contact/droplet theory of transmission has caused employers to deny or discourage the use of N95s or that the requested amendments are the cure. To explain why, we begin with an examination of the directives themselves.

[49] Both directives start with a similar preamble. The preamble to Directive #5 includes:

… WHEREAS, under section 77.7(2) of the HPPA, for the purposes of section 77.7(1), the CMOH must consider the precautionary principle where in the opinion of the CMOH there exists or there may exist an outbreak of an infectious or communicable disease and the proposed directive relates to worker health and safety in the use of any protective clothing, equipment or device;

AND HAVING REGARD TO the emerging evidence about the ways this virus transmits between people as well as the potential severity of illness it causes in addition to the declaration by the World Health Organization (WHO) on March 11th, 2020 that COVID-19 is a pandemic virus and the spread of COVID-19 in Ontario, and the technical guidance provided by Public Health Ontario on scientific recommendations by the WHO regarding infection prevention and control measures for COVID-19 which is required to be followed by health care providers and health care entities, including hospitals and long-term care homes, in Directive #1, dated March 12th, 2020 and revised on March 30th, 2020;

AND HAVING REGARD TO the precautionary principle, which in my opinion has been met in that this directive will protect health care workers' health and safety in the use of any protective clothing, equipment and device in public hospitals and long-term care homes and the failure to adhere to this directive may put worker health and safety at risk.

[50] The preamble to both directives expressly provides that the respondent has considered the applicable law, namely the precautionary principle. The directives also make express reference to the facts considered by the respondent. Directive #1 refers specifically to the March 10, 2020, Technical Brief referred to above. In addition to referring to the “technical guidance” provided by PHO in the preamble, Directive #5 also refers the Technical Brief. In a section providing that PCRAs should include a consideration of AGMPs, the directive provides:

AGMPs include but are not limited to…Any change to this list is to be based on the Technical Brief “Updated IPAC Recommendations for Use of Personal Protective Equipment for Care of Individuals with Suspect or Confirmed COVID-19” dated July 27, 2020 as amended from time to time which has been prepared by Public Health Ontario.

[51] The July 27 Technical Brief was published following the publication of two earlier studies undertaken by PHO. On July 14, 2020, PHO published a document entitled “Synopsis”, in which it reviewed the letter published on July 6, 2020, entitled “It Is Time to Address Airborne Transmission of COVID-19”, referred to by Dr. Fisman’s in his evidence. The PHO reviewer commented that, in media interviews, the authors of the letter “agreed that hospital policies, which include droplet/contact precautions for routine care, have been appropriate” and that they did not advocate for N95 respirator use for routine care but, rather, “for improved ventilation and avoidance of overcrowding.” The reviewer wrote:

These recommendations are not particularly controversial as evidence suggests an increased risk of infection in crowded, poorly ventilated spaces. The extent that inhalation of small aerosols can cause clinical infection is an area of active investigation.

[52] Another Synopsis published on July 16, 2020, entitled “COVID-19 Routes of Transmission – What We Know So Far”, reviewed a number of recent studies and concluded that:

• The predominant mode of transmission of COVID-19 is via respiratory droplets during close unprotected contact.

• Airborne spread has not been a dominant or common mode of transmission. Aerosols may be generated during aerosol generating medical procedures (AGMPs), which may increase the risk of transmission.

[53] Thus, the record makes clear the factual basis upon which the July 27 Technical Brief was based which, in turn, makes clear the factual basis upon which Directive #5 was based.

[54] In our view, by referring to precautionary principle, the guidance provided by PHO, and the Technical Briefs, the directives themselves demonstrate that the respondent considered both the applicable law (the precautionary principle) and the applicable facts (the possibility of aerosol transmission). A close reading of the directives gives no reason to doubt this. Because it takes precedence, and given the applicants’ focus on hospitals and LTC homes, we need only examine Directive #5.

[55] From its earliest iteration, Directive #5 has provided for a PCRA. However, through successive iterations, the scope of this term has been expanded and its effect has been fortified:

(1) Whereas earlier versions applied only to regulated health professionals, the October 2020 version at issue in this case applies also to non-regulated health professionals, such as personal support workers. If a nurse (or any regulated health professional) determines based on a PCRA that an N95 respirator is required in a particular situation, all health professionals interacting with the patient must be provided with such a respirator.

(2) Whereas earlier versions of the directive prohibited only the “unreasonable” denial of an N95 respirator by an employer, the October version prohibits denial on any basis.

(3) Finally, and perhaps most importantly, whereas earlier versions of Directive #5 were silent on the issue, the October version provides that a nurse may take into consideration his or her proximity to the patient or resident and the mere fact of their interaction with one another in deciding whether an N95 respirator is required.

[56] The relevant term in the October 8, 2020, version reads:

If a regulated health professional determines, based on the PCRA, and based on their professional and clinical judgement and proximity to the patient or resident, that an N-95 respirator may be required in the delivery of care or services (including interactions), then the public hospital or long-term care home must provide that regulated health professional and other health care workers present for that patient or resident interaction with a fit-tested N95 respirator or approved equivalent or better protection. The public hospital or long-term care home will not deny access to a fit-tested N-95 respirator or approved equivalent or better protection if determined by the PCRA.

[57] As this term makes clear, a nurse may require an N95 respirator at any time, in any of the situations in which the applicants have asked the court to order the CMOH to direct that they be provided. Thus, although the directive recognizes the possibility of only limited transmission by aerosols, it permits each regulated health professional to take precautions against the possibility of more widespread transmission by that means. In our view, this reflects the precautionary principle. Therefore, it cannot be said that the directives constitute an unreasonable failure to consider the applicable law and facts.

[58] Indeed, as the respondent points out, the ONA has previously conceded this point. In correspondence sent to counsel acting on behalf of an LTC home in January 2021, counsel for the ONA wrote:

…even if the Home is of the incorrect view that there is still scientific uncertainty about this risk of airborne infection, N95s are nevertheless required in any context where there is a risk of infectious aerosols, regardless of whether they are caused by AGMP’s, symptoms or some other reason. OHSA requires application of the precautionary principle at s. 25(2)(h), and the Directive itself is an implementation of this principle, which must be considered in interpreting the Directive. [Emphasis added.]

[59] The applicants submit that, although the directives might once have been reasonable, they have become unreasonable in light of later developments. They contend that, notwithstanding the clear wording of the directives, nurses are being discouraged from using or denied access altogether to N95 respirators. They argue that the reason for this is the respondent’s failure to acknowledge the role of aerosols and asymptomatic transmission in the spread of COVID-19. The evidence, however, fails to support this submission.

[60] The evidence concerning the acts of hospital employers is contained in the affidavit of Steven Lobsinger, a Senior Executive of the ONA. Mr. Lobsinger deposes that “the lack of recognition of aerosol or asymptomatic transmission in [Directives #1 and #5] has led hospitals across the province … to either disregard or minimize any right of nurses to access N95s in response to a PCRA in circumstances beyond AGMPs”: (para. 14). In support of this assertion, he refers to the results of a survey of ONA members, a series of grievances filed at 36 hospitals, communications from hospitals to employees, a number of hospital policies, and certain specific incidents in which it is alleged nurses were discouraged from using or denied access altogether to N95 respirators.

[61] The evidence relating to LTC home employers is found in the affidavit of Patricia Carr, a manager in labour relations for the ONA. Ms. Carr’s evidence relates mainly to efforts made on behalf of ONA members to address concerns about access to N95s. These efforts took three forms:

(1) In April 2020, the ONA obtained an injunction against four LTC homes pending the conclusion of an arbitration process. Ms. Carr refers to the complaints that lead to the order that was issued by Morgan J. in those proceedings.

(2) In May 2020, 238 of 325 LTC homes participated in a centralized arbitration before Arbitrator Stout relating to grievances filed regarding LTC homes. The arbitration resulted in an order dated May 4, 2020, in which the arbitrator ordered that nurses not be impeded in performing their PCRA and that they be provided with a sufficient supply of fit-tested N95s. The ONA appeared again before the arbitrator in June 2020 because of alleged failures to comply with his May order. Ms. Carr appends copies of the statutory declarations that were filed on behalf of the ONA in that second proceeding.

(3) Finally, following the second arbitration decision in June 2020, the ONA or counsel acting on its behalf wrote to a number of LTC homes to resolve continuing concerns raised by its members. Ms. Carr refers to, and in some cases appends copies, of these letters in her affidavit.

[62] However, most of the evidence of Ms. Carr and Mr. Lobsinger suffers from one or more of three serious flaws.

[63] The first is that much of the evidence is hearsay, which is presumptively inadmissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2. This is true of the survey evidence, the hospital grievance evidence, the incidents identified in correspondence to employers, and most of the evidence of specific incidents occurring at hospitals contained in Mr. Lobsinger’s affidavit.

[64] The applicants ask us to admit this hearsay evidence on the basis that it meets the threshold tests of necessity and reliability first articulated by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531. They submit that the evidence is necessary because of the power imbalance inherent in the employer-employee relationship and the fear of reprisal by employers against employee witnesses, among other reasons. Even if we were persuaded that these reasons make the evidence necessary, we would not be persuaded that the evidence was sufficiently reliable. Without evidence of the identity of the out-of-court witness or of the circumstances in which the out-of-court statement was made, we cannot properly assess the reliability of the evidence: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 30.

[65] The second serious flaw in much of the evidence tendered by the applicants is the absence of temporal information. For example, although the survey was taken in December 2020, we have no information as to when the incidents referred to therein took place. The same is true of many of the specific incidents referred to in Mr. Lobsinger’s affidavit in which nurses were allegedly discouraged from using or denied access to N95s. For example, Mr. Lobsinger deposes that a nurse working in a dialysis unit was denied access to an N95 respirator by her manager in an incident occurring in the Ajax area. However, the evidence is only that it happened in October 2020. We do not know when in October. A great many of the other alleged incidents contain even less information about the date of the occurrence. This information is crucial because of the amendments to Directive #5 referred to above. As we have pointed out, the directive was amended on October 8, 2020, to remove an employer’s ability to refuse even what the employer might deem to be an unreasonable request for an N95 respirator.

[66] Finally, where temporal information is provided, many of the incidents precede the October 8, 2020, amendment to Directive #5, reducing or eliminating their relevance as evidence that the directives at issue here are hindering access to N95s. This is true, for example, of all of the hospital policies referred to in paragraph 48 of Mr. Lobsinger’s affidavit and all of the evidence of Ms. Carr that was relied upon in support of the injunction application and both arbitrations.

[67] As a result of these flaws, there is very little admissible evidence of interference with access to N95 respirators. Where the applicants have provided evidence of recent events that does not suffer from one or more of these three flaws, it falls short of demonstrating that the impugned conduct on the part of an employer was due to the respondent’s failure to acknowledge aerosol or asymptomatic transmission of COVID-19. The evidence does not go beyond suggesting that the employer’s conduct was caused by a failure to follow Directive #5, which is not relevant to the issue of whether the Directive itself is unreasonable.

[68] The evidence of Mr. Lobsinger relating to a Scarborough area hospital provides a good example. After referring to a memo written on November 12, 2020, by the head of the hospital’s IPAC department in which the author stated that COVID-19 is not transmitted to health care workers who use contact/droplet precautions, Mr. Lobsinger deposes that the memo “undermines the spirit of Directive #5” and acted “as a ceiling for PPE access rather than a minimum standard”. However, Mr. Lobsinger does not allege that any health care worker at the hospital was ever denied an N95 respirator after October 8, 2020.

[69] Indeed, the evidence with respect to incidents occurring after the directive was amended reveals that most of those incidents were resolved by insisting on compliance with Directive #5. The evidence of Ms. Carr relating to a LTC home called “The Gleve” provides a good example of this. The Glebe was not one of the LTC homes that had agreed to the centralized labour arbitration process referred to earlier. Ms. Carr deposes in her affidavit that The Glebe had been advising staff that N95s were not needed because COVID-19 was spread by contact/droplets. The issue was resolved after The Glebe received a letter sent on behalf of the ONA in November 2020. Ms. Carr deposes that:

From this point onward, ONA continued to [refer to evidence of aerosol transmission] in seeking compliance with Directive #5 and [the arbitrator’s award]. [Emphasis added.]

[70] The applicants have based their arguments that Directive #5 is unreasonable solely on the premise that access to N95 respirators is being impeded because of the respondent’s alleged failure to acknowledge aerosol and asymptomatic transmission. Neither the wording of Directive #5 nor the evidence supports this premise.

[71] The directives themselves make it clear that the respondent considered both the precautionary principle and the scientific evidence about how COVID-19 is transmitted. Although the directives are based on the scientific view that the virus is not normally transmitted by aerosols, the respondent implemented the precautionary principle by providing that nurses may insist on being provided with an N95 respirator in any setting where they believe, based on their professional judgment, one is required and not just during AGMPs.

To the extent that nurses are encountering any difficulties accessing N95 respirators, these are matters of labour law that can and should be addressed through remedies available in that context. However, any such difficulties do not support the applicants’ arguments that the directives themselves are unreasonable.The applicants have, therefore, failed to establish that the directives are unreasonable.

Do the directives breach s. 7 of the Charter?

[72] Having found that the directives permit nurses to have an N95 respirator whenever they believe one is required, and that the applicants have failed to establish either that the directives are the cause of nurses being denied the respirators or that differently worded directives would likely cure the problem, it is not necessary for us to consider the applicants’ argument that the directives infringe their s. 7 Charter rights.

Are the remedies available?

[73] There is also no need for us to consider this issue in light of our conclusion on the others.

CONCLUSION

[74] The applicants have failed to persuade us that Directives #1 and #5 are unreasonable or that they contravene s. 7 of the Charter.

[75] The application must, therefore, be dismissed.

COSTS

[76] In accordance with the agreement reached by the parties shortly after the hearing, we order that costs in the amount of $25,000 be paid to the respondent.

Ellies R.S.J.

D.L. Corbett J.

L. Favreau J.

Date of Release: September 27, 2021

DIVISIONAL COURT FILE NO.: 156/21 DATE: 20210927

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., D.L. Corbett and Favreau JJ.

BETWEEN:

ONTARIO NURSES’ ASSOCIATION, VICKI McKENNA and BEVERLY MATHERS

Applicants

– and –

CHIEF MEDICAL OFFICER OF HEALTH,

DR. DAVID WILLIAMS

Respondent

REASONS FOR JUDGMENT

Per curiam

Date of Release: September 27, 2021