Court File and Parties
CITATION: Ash v. Chief Medical Officer of Health of Ontario, 2022 ONSC 1778
DIVISIONAL COURT FILE NO: 112/22
DATE: 2022/07/22
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JORDAN ASH, DR. JULIAN NORTHEY, DR. KAREN NORTHEY, Applicants
AND:
CHIEF MEDICAL OFFICER OF HEALTH OF ONTARIO, Respondent
BEFORE: MacEachern J.
COUNSEL: Jordan Ash, self-represented Dr. Julian Northey, self-represented Dr. Karen Northey, self-represented Vanessa Glasser and Michael Saad, for Respondent
HEARD at Toronto (by videoconference): April 14, 2022
Endorsement
[1] The Respondent Chief Medical Officer of Health (the “CMOH”) moves to quash this Application for judicial review based on standing and justiciability. In particular, the CMOH submits that the Applicants lack both private and public interest standing to bring the Application and that it is plain and obvious that the Application cannot succeed. The Applicants resist the motion.
The Nature of the Application for Judicial Review
[2] In very summary terms, the Applicants claim for judicial review seeks an order in the nature of mandamus to compel the CMOH to make an order halting the pediatric COVID-19 vaccination program in Ontario. Specifically, the claim relates to COVID-19 vaccines for children under the age of 12 years.
[3] The Applicant, Mr. Ash, described himself in the Application as an Ontario native, advocate for the public interest, independent researcher and an uncle.
[4] The Applicant, Mr. Northey, describes himself in the Application as born in Anishnaabe territory aka Ontario, non-status Metis, with a Ph.D. in molecular genetics, a CEO of a biotech company, and a parent of four children, one of whom is under 12.
[5] The Applicant, Ms. Northey, describes herself in the Application as born in Anishnaabe territory aka Ontario, non-status Metis, an MD in family medicine, and a parent of four children, one of whom is under 12.
[6] The Applicants strongly believe that the pediatric Covid-19 vaccines are dangerous and should not be available to children. They believe that the CMOH should be required to form the opinion that the vaccines are dangerous and to immediately issue an order to halt their use in Ontario.
[7] For the reasons set out below, I find that the Application should be quashed because it is plain and obvious that it cannot succeed. I also find that the Applicants lack standing to bring this Application for judicial review.
The Test for quashing an Application for Judicial Review
[8] The test on a motion to quash an Application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the Application cannot succeed[^1]. This standard applies to issues of standing, jurisdiction, justiciability, or other defects on the face of the Application[^2]. The test is the same as on a Rule 21 motion to strike an action.
It is plain and obvious that the Applicants’ claim for Mandamus cannot succeed
[9] I find that the Application should be quashed because it is plain and obvious that it cannot succeed.
[10] The Applicants seek an order in the nature of mandamus compelling the CMOH to direct all Ontario boards of health and medical officers to immediately stop and permanently refrain from administering any Covid-19 vaccine to any child in Ontario under the age of 12. The Applicants ground their asserted claim for a mandamus order in the power of the CMOH to issue directives under s. 77.9(1) of the Health Promotion and Protection Act, R.S.O. 1990, c. H.7 (“the HPPA”).
[11] This Application does not challenge the decision of Health Canada to approve the pediatric Covid-19 vaccine. Health Canada is not a party to this Application.
[12] To succeed on a claim for mandamus, an Applicant must establish[^3]:
(i) a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced;
(ii) the duty whose performance it is sought to coerce by mandamus must be actually due and incumbent on the official at the time the relief is sought;
(iii) the duty must be purely ministerial in nature – in other words, “plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers”; and
(iv) there must be a demand and a refusal to perform the act the Applicant seeks to have ordered.
[13] Section 77.9 of the HPPA provides as follows:
Directives to boards and medical officers
77.9 (1) The Chief Medical Officer of Health may issue a directive to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2) if the Chief Medical Officer of Health is of the opinion,
(a) that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario; and
(b) that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.
Restriction
(2) The Chief Medical Officer of Health may only make a directive under this section with respect to measures or policies concerning,
(a) infectious diseases;
(b) health hazards;
(c) public health emergency preparedness; or
(d) a matter prescribed in regulations made by the Minister.
Compliance required
(3) A board of health or medical officer of health that is served with a directive under this section shall comply with it.
Duration
(4) Subject to subsections (5) and (6), a directive under this section is in force for the period set out in the directive, which shall not exceed six months.
Termination or renewal
(5) The Chief Medical Officer of Health may terminate a directive under this section, or renew it for one or more additional periods of not more than six months each.
Consultation
(6) The Chief Medical Officer of Health shall consult with every affected board of health and medical officer of health before,
(a) renewing a directive under this section so that it is in force more than six months; or
(b) issuing a directive identical or substantially similar to one or more directives already issued, where the effect would be that identical or substantially similar directives would be in force for the same board or medical officer of health for a total period of more than six months, whether or not they are in force for consecutive periods. (emphasis added)
[14] There are at least two fundamental problems with the Applicants’ claim for mandamus that make it doomed to fail. Both relate to the nature of the CMOH’s statutory duty under s. 77.9(1) of the HPPA (assuming for the sake of argument that the authority under s. 77.9 is correctly characterized as a duty).
[15] The first problem relates to the absence of any pleading in the Application of the conditions precedent to trigger the authority of the CMOH to act under s. 77.9(1), or any evidence of the conditions precedent to trigger the authority of the CMOH to act.
[16] Section 77.9(1) creates a discretionary power on the part of the CMOH to issue directives to any or all boards of health or medical officers of health requiring the adoption or implementation of policies or measures concerning the matters set out in subsection (2).
[17] Section 77.9(1) contains a condition precedent trigger for the authority for the CMOH to act pursuant to the section. He must be of the opinion: (a) “that there exists, or there is an immediate risk of, a provincial, national or international public health event, a pandemic or an emergency with health impacts anywhere in Ontario,” and (b) “that the policies or measures are necessary to support a co-ordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.” I refer to these two opinions as the requirements of “immediate risk” and “necessity of a coordinated response.”
[18] Absent the CMOH forming the two opinions that are the conditions precedent to the CMOH having the authority to issue a directive under s. 77.9(1), he has no authority to act under s. 77.9(1).
[19] The Applicants have not pleaded that the CMOH has formed either of the condition precedent opinions regarding immediate risk and the necessity of a coordinated response. Although this is primarily a motion based on the pleadings on their face, I have also considered that in the Applicant’s affidavits filed on this motion, there is also no evidence that the CMOH has formed the condition precedent opinions required to trigger his authority to issue a directive under s. 77.9(1). Instead, the evidence proffered by the Applicants on the main Application is their affidavits, setting out, in the case of Mr. Ash, his belief that COVID-19 vaccines are harmful to children and in the case of the Northey’s, their belief that COVID-19 vaccines are not proven to be beneficial to children.
[20] In the context of this motion to quash based on the pleadings, in the absence of any pleading that the CMOH has formed the opinion required as a condition precedent to acting under s. 77.9(1) of the HPPA, there is no basis for claiming that he has any authority to act under s. 77.9(1), and certainly no duty. The Application for mandamus is therefore doomed to fail. On this basis, the Applicants’ claim for mandamus is incapable of success and must be quashed.
[21] The second problem with the Applicants’ claim for mandamus relates to the nature of the CMOH’s authority under s. 77.9(1). This section grants the CMOH the discretion to act where he has formed the necessary opinions. The CMOH may issue a directive if he forms the necessary precondition opinions. Section 77.9(1) confers discretion on the CMOH to issue a directive (he “may issue a directive” … if he “is of the opinion that….”).
[22] The discretionary nature of the authority is significant because mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way[^4].
[23] Section 77.9(1) is framed as a discretion once the CMOH forms the condition precedent opinions. The Applicants’ claim for a mandamus order asks this court to direct the CMOH on how to exercise his discretion under s. 77.9(1), which is beyond this court’s jurisdiction. This court’s authority to make a mandamus order does not allow it to direct the CMOH on how to exercise his discretionary powers under s. 77.9(1).
The Applicants do not have Standing
[24] Having found that it is plain and obvious that this Application cannot succeed for the reasons above, I do not need to determine the CMOH’s challenge to the Applicant’s standing to bring this Application. However, had I needed to do so, I would have also found that Applicants lack public interest standing to bring this Application for judicial review.
[25] The CMOH argues that the Applicants’ have neither private nor public interest standing to bring this Application. The Applicants do not claim private interest standing[^5] but do assert public interest standing because:
there is a serious justiciable issue as there is an emergency causing harm.
the Applicants stress that their professional involvement in science/medicine/COVID response gives them a real stake and personal interest in this matter.
[26] The Applicants also argue that mandamus is the only option as they allege the government is exercising their discretion in bad faith.
[27] The test for public interest standing is well established. As set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 43, [2012] 2 S.C.R. 524, at para. 37, a party seeking public interest standing must demonstrate that:
(i) the Application raises a serious justiciable issue;
(ii) the Applicant has a serious interest in the issue; and
(iii) in all the circumstances, the proceedings are a reasonable and effective way to bring the issue before the courts.
[30] As held in Downtown Eastside, para.53, these three factors are not a “rigid checklist” or “technical requirements,” but they are to be considered in a “purposive, flexible and generous manner.”
[28] The CMOH argues that the Applicants do not meet the test for public standing because:
a. there is no serious justiciable issue because the Applicant’s legal theory is deficient, and the proceeding has no reasonable prospect of success.
b. there may be consequences in this Application for private interest litigants or qualified public interest litigants who are more suitable litigants, and some weight should be given to their decision not to bring this proceeding forward,
c. this proceeding is not a reasonable and effective way to bring the issue before the courts because the Applicants are unqualified and inexperienced public interest litigants and not represented by experienced public law counsel,
[29] I agree that the Applicants lack public interest standing because there is no serious justiciable issue. As set out above, their claim as framed has no prospect for success and is quashed on that basis. But I am also concerned with the potential impact of the proceedings on the rights of others who are equally or more directly affected, as well as the ability of the Applicants, who are not represented and lack public interest litigation experience, to bring such a challenge in a reasonable and effective way. Even if this Application were not quashed because it is plain and obvious that it cannot succeed, I would not have granted the Applicants public interest standing to bring this challenge.
Conclusion
[30] For these reasons, the CMOH’s motion to quash the application for judicial review is granted.
[31] The CMOH seeks costs on a partial indemnity basis fixed at $2,888. The CMOH was the successful party on this motion. These costs are reasonable and proportional. I order the Applicants to pay costs to the Respondent fixed at $2,888.
MacEachern J.
Date: July 22, 2022
[^1]: Democracy Watch v. Ontario Integrity Commissioner, 2021 ONSC 7383, at para. 27. [^2]: Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150, at para. 18. [^3]: Karavos v. Toronto and Gillies, 1947 326 (ON CA), [1948] 3 D.L.R. 294, at p. 297 (Ont. C.A.); see also Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C 742 (FCA) at para. 55, aff'd 1994 47 (SCC), [1994] 3 S.C.R. 1100. [^4]: Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C 742 (FCA) at para. 55, aff'd 1994 47 (SCC), [1994] 3 S.C.R. 1100. [^5]: I agree that the Applicants do not have private interest standing to bring this Application. The Applicants do not have a personal and direct interest in the issue being litigated. They are not specifically affected by the issue. They do not have a personal legal interest in the outcome – see Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, 153 O.R. (3d) 385, para 33