CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 5947
DIVISIONAL COURT FILE NO.: 112/22 DATE: 20231020
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 In Writing: October 19, 2023
REASONS FOR DECISION
D.L. Corbett J.
[1] This endorsement explains why I am dismissing Mr Ash’s motion to vary or set aside a final panel decision of the Divisional Court.
[2] The Applicants commenced this proceeding against Ontario’s Chief Medical Officer of Health (“CMOH”) on the basis of their strong belief that the pediatric COVID-19 vaccines are dangerous and should not be available to children. They sought orders to immediately halt the use of pediatric COVID-19 vaccinations in Ontario.
[3] On motion by the CMOH, McEachern J., sitting as a single judge of the Divisional Court, dismissed the application on the grounds that (a) the applicants lack public or private interest standing to bring it; and (b) it is plain and obvious that the application could not succeed (2023 ONSC 1778).
[4] The Applicant Jordan Ash moved for leave to appeal to the Court of Appeal from the decision of McEachern J. That leave motion was denied on February 21, 2023 on the basis that no appeal lies to the Court of Appeal from the decision of a single motion judge of the Divisional Court, but rather, recourse was only available by way of a review motion before a panel of three judges of the Divisional Court.
[5] Mr Ash then moved in this court for an extension of time in which to bring a motion to review the decision of McEachern J. before a panel of three judges. I granted that extension request on April 17, 2023 (2023 ONSC 5928). The review motion was heard by a panel of this court on August 24, 2023. It was dismissed from the bench for brief oral reasons (2023 ONSC 4871).
[6] On September 14, 2023, Mr Ash wrote to the court by email as follows:
This urgent message is to the respondent (for service), court staff (for filing) and Justice Corbett (for directions).
Sachs, Backhouse and Schabas JJ. orally dismissed my motion to set aside the quash of my application for JR on 24 August, and in writing on 31 August. Decision at Caselines A1206.
In response, attached are a Notice of Motion (11 pages) and Motion Record (167 pages). The Notice and Record may also be found at Caselines A1210 and A1221 and respectively.
This motion seeking to set aside the decision of a panel is permissible under r. 61.16(6.1) and is brought under r. 59.06(2)(a) to "have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;".
Please advise.
[7] By direction sent by email September 14, 2023, I directed as follows:
The Registrar is directed to give notice pursuant to r.2.1 that the court is considering dismissing Mr. Ash's motion to set aside the panel's decision pursuant to r.59.06 as frivolous, vexatious and an abuse of process.
Explanation
In oral reasons at the conclusion of the hearing, the panel dismissed the motion to review the decision of McEachern J. on the following bases:
The applicants 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).
An order of mandamus is not available to order the Chief Medical Officer of Health to exercise his discretion in a particular way.
The applicant's alternative position - that an order of mandamus should issue directing the Chief Medical Officer "to protect the health of persons in Ontario" is likewise not available - mandamus is a tailored order not a general power to order a public official to "do their job".
The allegations of bad faith are irrelevant.
The application does not raise a serious justiciable issue, and the applicant ought not be granted public interest standing.
Mr Ash's motion to set aside the panel's decision is brought on the following basis:
In a public presentation some days after the panel's decision, the Chief Medical Officer of Health disclosed that he received and/or receives funding from Pfizer for medical research in which he is involved.
Pfizer is one of the companies producing COVID vaccinations.
As a result, the Chief Medical Officer of Health is in a position of conflict of interest when it comes to making decisions related to COVID vaccinations.
The failure to disclose this conflict and continuing to discharge his duties in respect to the COVID pandemic, in light of this conflict of interest, amounts to fraud.
This undisclosed conflict of interest, which amounts to fraud, was unknown at the time of the hearing before the panel and can reasonably be expected to have affected the result of the case before the panel.
None of the allegations in the proposed motion relate to fraud perpetrated during in the litigation. Rather, the allegation in the motion, in effect, is that Mr. Ash has learned facts subsequent to the panel's decision that could reasonably be expected to affect the result, and as a consequence, he should be able to lead this new evidence, and the panel should reconsider the case in light of the new evidence.
The motion before the panel was a review of the decision of McEachern J., and is based upon the record that was before McEachern J. To add to this record, Mr. Ash would have to satisfy the test for fresh evidence: Re Keeprite Workers' Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 OR (2d) 513 (CA).
In this instance, the basis for seeking to adduce the fresh evidence is that it bears upon the independence of the decision-maker (the Chief Medical Officer of Health). This is a recognized basis for this court to exercise its discretion to consider admitting fresh evidence. However, it appears that there is no merit to the request to do so in the circumstances of this case for the following reason:
McEachern J. did not dismiss the application on the substantive merits of the claim that COVID-19 vaccinations are harmful to children. Rather, she dismissed the claim on the basis that the applicants did not plead an arguable claim for available relief against the Chief Medical Officer of Health, did not plead any justiciable claim, and failed to establish that they should be granted public interest standing. The review panel, likewise, dismissed the review motion on the basis that McEachern J. did not err in concluding that this application was not properly conceived, as a matter of law. It also concluded, as did McEachern J., that the application fails to plead a justiciable issue and that the applicants should not be granted public interest standing to bring this application. It appears that the proposed fresh evidence would not affect the basis of the decision of McEachern J., or that of the review panel, and thus could not reasonably be expected to affect the result of this case.
Further, on the basis alleged in the motion, it appears that the allegation of "fraud" is baseless. Conflict of interest does not equal fraud. In this case, McEachern J. found that the Chief Medical Officer of Health did not make a reviewable decision. Conflict of interest does not arise in respect to a non-decision.
The applicant shall have the usual fifteen days and ten pages in which to respond to the court's concerns. The respondent is directed not to respond to the applicant's r.2.01 submissions unless this court subsequently directs otherwise.
[8] Mr Ash provided submissions responding to the r.2.1 notice that may be summarized as follows:
a. Dismissal of a motion under r.2.1 should only be done in the “clearest of cases”.
b. The applicants’ alleged that “the government” exercised their discretion “in bad faith”, McEachern J. so found at para. 26 of her decision, and the review panel erred when it found otherwise (at para. 13 of their decision): “the panel has nevertheless made an error in treating the bad faith allegation as unconnected to the exercise of the respondent’s discretion to do nothing.”
c. The basis of the motion is that the respondent had an undisclosed conflict of interest and that the failure to disclose the conflict amounted to fraud or bad faith. This in turn, it is argued, would be a basis for the panel to reconsider their decision, and they should do so in light of the “fresh evidence”.
[9] For the reasons that follow, the motion is dismissed pursuant to r.2.1. The allegation of conflict of interest was not made in the notice of application, was not addressed in the record before McEachern J., was not argued before or decided by McEachern J., and was not raised before or argued before the panel of the Divisional Court. It is a completely new argument. Fresh evidence may be permitted where it may bear decisively on the matters that have been decided. It is not admitted in aid of a completely new argument which has not been disposed of in the court’s decision.
[10] The application was dismissed on the basis that no arguable claim was pleaded and the applicants lacked private and public interest standing to bring the claims in any event. The allegation of conflict of interest does not displace these core findings on which the decisions of McEachern J. and the review panel were based. An application to challenge whether the respondent has a conflict of interest respecting COVID vaccines may not be grafted onto the current application now that it has been dismissed.
[11] The motion to set aside the panel’s decision is dismissed pursuant to r.2.1 as frivolous, vexatious and an abuse of process, without costs.
“D.L. Corbett J.”
Date of Release: October 20, 2023
CITATION: Ash v. Chief Medical Officer of Health, 2023 ONSC 5947
DIVISIONAL COURT FILE NO.: 112/22 DATE: 20231020
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/Responding Party
ENDORSEMENT
D.L. Corbett J.
Date of Release: October 20, 2023