CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 4871
DIVISIONAL COURT FILE NO.: 22-112-JR DATE: 20230824
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Backhouse & Schabas JJ.
BETWEEN:
JORDAN ASH, DR. JULIAN NORTHEY, DR. KAREN NORTHEY
Self-represented, Applicants
Applicants
– and –
CHIEF MEDICAL OFFICER OF HEALTH
Vanessa Glasser and Michael Saad, for the Respondent
Respondent
HEARD at Toronto: August 24, 2023
Sachs J. (Orally) (on behalf of the Court)
[1] This is a motion to vary or set aside the order of MacEachern J. dated July 22, 2022, quashing the applicant’s application for judicial review.
[2] In order to succeed on this motion, the applicant must demonstrate that the Motion Judge committed an error of law or principle or a palpable and overriding error of fact (MacLean v. Askew, 2021 ONSC 63 at para. 9 (Divisional Court))).
[3] First, the applicant submits that the Motion Judge erred in finding that he had failed to plead the conditions precedent to trigger the authority of the Chief Medical Officer of Health to act under s. 77.9(1) of the Health Promotion and Protection Act, R.S.O. 1990, c. H.7 (HPPA).
[4] The applicant submits that his notice of application did plead those conditions precedent, arguing that his reference to data published by the government as to the impacts of pediatric COVID-19 vaccines sufficiently pleads the conditions. The relevant paragraph of the applicant’s pleading states:
The applicants do not seek to make a scientific argument with expert opinion. The purpose of this application for judicial review is to demonstrate to the Court that the Crown already admits and tacitly accepts - via data published by the Queen’s Printer for Ontario - that the pediatric COVID-19 vaccines are both unsafe and negatively effective for children (Exhibits 1, 18), and furthermore that the government is acting in bad faith by a) misleading the public with false hospitalization rate information (Exhibit 12), b) hiding case-by-status-by-age data (Exhibit 18), c) defining a pediatric death following vaccination as “unvaccinated” and covering up the true status of the child by illogically invoking the Personal Health Information Protection Act (Exhibit 28), and finally d) gross negligence - continuing the pediatric COVID-19 vaccination program in spite of its dangers and failures.
[5] We do not see any error of law or palpable and overriding error of fact in the Motion Judge’s decision. The notice of application does not plead facts that relate to the statutory power of the Chief Medical Officer of Health in s. 77.9 of the HPPA, namely that 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 coordinated response to the situations referred to in clause (a) or to otherwise protect the health of persons.
[6] The pleading simply states the applicant’s opinion as to what certain documents say or what he would conclude from them. The pleading is silent on whether there is, for example, an “immediate risk” of the events set out in subsection (a), or that “policies or measures” are needed to support a “coordinated response” as set out in subsection (b). And the pleading is completely silent as to the Chief Medical Officer of Health’s opinion and whether he has formed that opinion or not.
[7] Second, the applicant submits the Motion Judge erred when she quashed his application on the basis that mandamus was not available to order the Chief Medical Officer of Health to exercise his discretion in a particular way.
[8] The applicant concedes that this is the law,but argues that instead of quashing his application on this basis, the Motion Judge should have allowed him the ability to amend his application to correct this defect. If he had been given this opportunity, he would have amended his application’s request for relief to an order for mandamus directing the Chief Medical Officer of Health to protect the health of persons in Ontario.
[9] We do not accept the applicant’s submission that the Motion Judge should have given him the opportunity to amend his application before ordering that it be quashed. Our view of this is reinforced by the amendment that the applicant would have made if he had been given this opportunity.
[10] In effect, he would have sought to be allowed to ask the Court to order the Chief Medical Officer of Health to do his job which, loosely speaking, is to protect the health of persons in Ontario. Making an order of this kind is not a proper exercise of this Court’s jurisdiction on judicial review.
[11] The applicant submits that the Motion Judge erred in quashing his application without adequately addressing his allegations of bad faith.
[12] We do not agree. Simply put, the applicant’s allegations of bad faith are irrelevant to the analysis in this case.
[13] If the allegation was that the Chief Medical Officer of Health had exercised his discretion in bad faith or on the basis of irrelevant factors, then this might have been a matter that the Court could judicially review. However, in this case, the applicant is frustrated because the respondent has not exercised his discretion in a particular manner. Given this, the Motion Judge correctly found that we have no jurisdiction to order mandamus.
[14] Finally, given that we agree with the Motion Judge’s finding that there was no serious justiciable issue, we also agree that she did not err in finding that the applicant had no public interest standing.
[15] For these reasons, the applicant’s motion is dismissed.
COSTS
[16] The respondent is entitled to its costs of this application, which we fix in the amount of $5,000 all inclusive.
___________________________ Sachs J.
Backhouse J.
Schabas J.
Date of Oral Reasons for Judgment: August 24, 2023
Date of Written Release: August 31, 2023
CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 4871
DIVISIONAL COURT FILE NO.: 22-112-JR DATE: 20230824
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse & Schabas JJ.
BETWEEN:
JORDAN ASH, DR. JULIAN NORTHEY, DR. KAREN NORTHEY
Applicants
– and –
CHIEF MEDICAL OFFICER OF HEALTH
Respondent
ORAL REASONS FOR JUDGMENT
Sachs J.
Date of Oral Reasons for Judgment: August 24, 2023
Date of Written Release: August 31, 2023