CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 5928
DIVISIONAL COURT FILE NO.: 112/22 DATE: 20230417
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
JORDAN ASH, DR JULIAN NORTHEY,
Mr Ash, self-represented
DR KAREN NORTHEY
Applicants
– and –
CHIEF MEDICAL OFFICER OF HEALTH
Vanessa Glasser and Michael Saad Lowson,
for the Respondent
Respondent
HEARD by ZOOM: April 13, 2023
ENDORSEMENT
D.L. Corbett J.
[1] This endorsement was provided to the parties by email on April 17, 2023.
[2] The court confirms the motion heard on April 13, 2023. The request for an extension of time in which to bring a motion to review the order of McEachern J. before a panel of three judges of the Divisional Court is granted, without costs. The parties should exchange their motion materials for the review motion, without delay.
Reasons
[3] Justice McEachern quashed the application for judicial review on the merits and on the basis that the applicants lack private interest standing and should not be granted public interest standing.
[4] The applicants, who are self-represented, brought an appeal to the Ontario Court of Appeal. That appeal was quashed on the basis that jurisdiction properly lies in this court on a motion to review the order of a single Divisional Court motions judge.
[5] Where, as here, there is no doubt that a party had a timely intention to pursue appeal / review rights, but took the wrong appeal route, the court generally presumes that the branches of the test are met respecting timely intention to appeal and explanation for delay - so long, of course, as the reviewing party moves promptly once the Court of Appeal has decided the jurisdictional point.
[6] There is one subsidiary point related to the delay. The respondent argues that the moving party's conduct before the Court of Appeal led to unnecessary delays. This argument is premised on unreasonable steps taken by the moving party during the appeal proceedings - which had the effect of delaying those proceedings - and not delay simpliciter - that is, the moving party did not "sit" on the appeal in the Ontario Court of Appeal, but took unmeritorious procedural steps that had the effect of delaying matters. I accept that in a proper case this court may consider delay simpliciter in the Court of Appeal as a factor in the delay analysis in this court. However, I consider it inappropriate for this court to review and weigh in on the conduct of the proceedings before the Court of Appeal except to the extent that the Court of Appeal, itself, made findings about that conduct. To proceed otherwise would leave this court in the untenable position of - in effect - supervising proceedings in a higher court. In this case, the Court of Appeal has not made findings about the moving party's conduct above that would bear on the exercise of discretion in this court to grant or refuse an extension, and so I decline to place weight on the litigation history in the Court of Appeal by analysing the reasonableness of the delay.
[7] Of course, the length of delay could bear on prejudice to a responding party - which is a separate consideration. There is no prejudice here. The respondent is a public official. His discharge of his public duties has not been impeded by the decision below or the delay in appeal / review proceedings. Continued legal costs are not a matter of "prejudice" in this case - (i) the costs awarded below are addressed in terms of my order, below, (ii) costs of proceedings before the Court of Appeal were for that court to address; and (iii) costs of the review motion itself are not "prejudice" within the meaning of the test for an extension. In a proper case, of course, a respondent could move for security for costs in this court if there was a basis for such a motion.
[8] This leaves two issues on this motion - whether the moving party satisfies the "merits" aspect of the test for an extension and whether the "justice of the case" militates in favour of granting the extension.
[9] The proposed motion, on the merits, appears to me to be weak. However, I am not persuaded that the proposed review motion is so devoid of merit that it should not be permitted to proceed. As noted in discussions during oral argument, the moving party was entitled, as of right, to move for review of the motion judge's decision. A decision, now, refusing an extension, would itself be subject to review before a panel of three judges of the Divisional Court. Where delay and prejudice do not bear on the extension decision, it is only in the clearest of cases that this court will refuse an extension in these circumstances.
[10] The issues raised by the moving party are important. They take the position that COVID vaccinations for children should not be permitted. The courts are one venue for voicing opposition to public health policy, and in my view the justice of the case weighs in favour of giving the moving parties their day in court to challenge the summary dismissal of their application.
Exchange of Materials
[11] The moving party wishes to proceed urgently. I decline to pre-empt other matters in favour of this one, especially since a great deal of delay has been a consequence of the conduct of the moving party. That said, I will give the matter priority among available dates, and the court should be able to schedule the hearing before the end of June.
[12] The court understands that all materials for the review motion have been exchanged. If the court has misunderstood this point, then the parties shall indicate to the court any further materials they intend to serve on the review motion, and the date by which those materials will be served, and shall provide this information to the court by email by April 28, 2023.
[13] A review motion is a review of the decision below based on the record before the court below. Generally, no additional evidence is permitted, other than that which was before the court below. The moving party pursued its appeal before the Court of Appeal in a manner in apparent contravention of this principle. The moving party's motion record should be restricted to the materials that were before McEachern J., plus the notice of motion for the review motion in this court, plus the reasons and order of McEachern J. If the moving party is seeking to adduce any materials additional to these, the moving party shall (a) advise the court of these materials and where they may be found on CaseLines, and (b) provide a brief explanation, by email, as to why the moving party believes these additional materials should be before the panel hearing the review motion, after which this court shall provide further directions.
Payment of Costs Below
[14] McEachern J. made a modest costs order in favour of the responding party. During oral argument I indicated that payment of this costs award would be a term of any order granting the requested extension, it being understood that if the review motion is successful in any respect, in the discretion of the review panel, an order could be made requiring this money to be repaid to the moving party. The court understands that the moving party has subsequently confirmed by email that it has made this payment, as directed.
Case Management
[15] This endorsement should provide the parties with all the directions required to complete materials and proceed to the hearing of the review motion. This court is seized of any further steps that may arise prior to the hearing. No party may bring a motion in this proceeding, prior to the hearing before the review panel (other than the motion to review the order of McEachern J.) without first raising the issue with this court by email and seeking directions.
Order and Costs
[16] The request for an extension is granted, on the terms set out in this endorsement. There shall be no order as to costs of the motion before me for an extension.
“D.L. Corbett J.”
Date of Release by Email: April 17, 2023
Written Endorsement Released: October 20, 2023
CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 5928
DIVISIONAL COURT FILE NO.: 112/22 DATE: 20230417
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Jordan Ash, Dr Julian Northey and Dr Karen Northey
Applicants/Moving Party
– and –
Chief Medical Officer of Health
Respondent
ENDORSEMENT
D.L. Corbett J.
Date of Release by Email: April 17, 2023
Written Endorsement Released: October 20, 2023