CITATION: T.A. v. Ontario, 2024 ONSC 4580
COURT FILE NO.: DC-22-2746
DATE: 2024-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reid, Myers, Leiper JJ.
BETWEEN:
T.A. as represented by their Litigation Guardian A.A.; and T.A. as represented by their Litigation Guardian A.A.
Applicants
– and –
His Majesty the King in Right of Ontario as represented by the Minister of Health
– and –
Human Rights Tribunal of Ontario
Respondents
Syed Hameed for the Applicants
Elizabeth Guilbault and Emily Owens for the Respondent HMTK
Brian Blumenthal and Mindy Noble for the Respondent HRTO
HEARD: May 21, 2024
Reid J.
DECISION ON JUDICIAL REVIEW
Introduction:
[1] The applicants seek judicial review of a decision by the Human Rights Tribunal of Ontario (the “Tribunal”) dated October 3, 2022 made following a summary hearing and of a reconsideration decision dated December 8, 2022. They allege that the decisions were unreasonable, incorrect, and/or procedurally unfair.
[2] In their application to the Tribunal, the applicants alleged prohibited discrimination based on age and family status with respect to medical and health services against the Ontario Ministry of Health (the “OMH”) and Ottawa Public Health (“OPH”). The alleged discrimination arose from the denial of the applicants’ access to the COVID-19 vaccine of their choice. The claim against OPH was settled and withdrawn prior to the summary hearing.
[3] In her October 3, 2022 decision, Tribunal member E. Nicols dismissed the application as moot and because the applicants had no reasonable prospect of success in proving a breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). She also declined to exercise her discretion to allow the applications to go forward to a hearing on the merits despite the determination on mootness.
[4] The reconsideration decision, rendered by the same Tribunal member, was that the applicants did not establish the existence of or support for any of the criteria set out rule 26 of the Tribunal Rules of Proceeding (the “Rules”) that could lead to a reconsideration of its initial decision. As a result, the request for reconsideration was denied.
[5] Although the applicants were represented in this court by counsel, permission was granted to their litigation guardian A.A., who is also a lawyer member of the Law Society of Ontario, to make submissions on their behalf together with counsel.
[6] For the reasons set out below, this application is dismissed.
Background:
[7] The applicants are children who were aged six and nine in April 2022. The litigation guardian is their father. The dispute arose because of the children’s failure to receive the Moderna vaccine in a timely way rather than the Pfizer vaccine during the COVID-19 pandemic.
[8] Pfizer was the first vaccine authorized by Health Canada for use in children aged 6 to 11. The Moderna vaccine was authorized subsequently by Health Canada on March 17, 2022. On March 25, 2022, the OMH permitted Ontario pharmacists to offer children aged 6 to 11 only the Pfizer vaccine, preventing children of those ages from having the same choice of vaccines available to adult patients or older children. There were no options for securing vaccination to children outside the provincial health care system.
[9] A.A., who also has postgraduate training in immunology, determined that the Moderna vaccine was preferable for his children.
[10] On April 2, 2022, A.A. wrote to the OPH and the OMH requesting that the applicants receive the Moderna vaccine, failing which he would consider that they were in breach of the Code.
[11] No response was received, so on April 6, 2022, the Tribunal application was filed against both the OPH and the OMH.
[12] As a result of settlement discussions, the applicants and the OPH agreed to a resolution on April 26, 2022. The terms of settlement were confidential. It was, however, disclosed to the Tribunal that the applicants were vaccinated with the Moderna vaccine as they had requested. The Tribunal application was withdrawn against the OPH.
[13] On May 2, 2022, the OMH made the Moderna vaccine an available option for all children in Ontario aged six and older.
Procedural History:
The Interim Decision:
[14] The Tribunal issued an interim decision on May 4, 2022 (the “Interim Decision”), in which the Member determined that the application was moot as against OPH but not moot and therefore continuing as against the OMH. It directed that a summary hearing be held pursuant to rule 19A of the Rules[^1]. The question for the summary hearing was to be whether the application should be dismissed in whole or in part on the basis that there was no reasonable prospect that the applicants could succeed in proving a breach of their Code-protected rights[^2].
[15] The Interim Decision identified the following questions to be considered at the summary hearing:
a. the propriety of alleging age discrimination by children in view of s. 10 of the Code which defines “age” as a protected ground of discrimination only for those 18 years of age or older;
b. whether the facts supported a finding of discrimination based on “family status”; and
c. whether the selection of a particular vaccine was a clinical or medical decision, and if so whether that was an issue that falls under the Code.
[16] The Interim Decision provided at para. 13 that: “No witnesses are called to testify at a summary hearing and the parties are not expected to submit documents for the summary hearing. The Tribunal will make its decision on the basis of the documents already filed and on the parties’ submissions.” However, at para. 25, the Tribunal stated: “If the parties wish to refer to any documents at the summary hearing, other than the information already filed, they must deliver them to the Tribunal and to the other party, no later than five weeks after the date of this Interim Decision.”
[17] The applicants added a Notice of Constitutional Question on August 11, 2022, challenging the definition of age under s. 10(1) of the Code, which makes a person under the age of 18 years ineligible to claim age discrimination. That Notice supported an allegation in the original application that s. 10(1) of the Code violates section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”)[^3].
The Case Assessment Direction:
[18] On August 12, 2022, the Tribunal issued a Case Assessment Direction confirming that the interim hearing was to address the issue of whether there was a reasonable prospect of success that the applications will demonstrate a breach of the Code and instructing the remaining parties to file written submissions on the issue of mootness. In para. 10, the Tribunal added: “If, following their submissions on the issue of mootness, the parties still wish to make submissions on the summary hearing issue raised in the Interim Decision, i.e., whether there is any reasonable prospect of success of the Applications proving a breach of the Code, they may do so.”
The Summary Hearing and Tribunal Decision:
[19] Extensive written submissions were made, and the applicants also filed an affidavit from each of two non-parties: a professor of health law and a physician. An oral hearing took place on September 1, 2022 to address the issue of mootness and whether the applicants had a reasonable prospect of success in demonstrating a breach of the Code.
[20] As noted, the Tribunal dismissed the application by decision dated October 3, 2022, concluding that the applicants had not demonstrated that there was a reasonable prospect of success in establishing that their Code-protected rights had been breached by the actions of the OMH. Member Nichols referenced the positions of the applicants including that compensation for violation of rights under the Code was still a live question despite the applicants’ receipt of the desired vaccine. She also noted, but disagreed with, the position of the applicants that the issue of mootness already had been decided in the Interim Decision.
[21] Referring to criteria established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, Member Nicols looked at the issue of whether there was a live controversy between the parties and found that it did not exist after the provision of the Moderna vaccine to the applicants. She then considered whether, despite the mootness, the Tribunal should exercise its discretion to hear the matter in any event pursuant to the criteria set out in J.C. v. Canadian Hockey Association, 2011 HRTO 385, at para. 53:
a. Are there collateral circumstances to the outcome such that the rights of the parties or an intervenor may nonetheless be affected?
b. Is there a need to resolve a legal question that is both persistent and evasive of review?
c. Does the social cost of continued uncertainty outweigh the interest of judicial economy?
[22] The Tribunal’s conclusion was that none of the questions could be answered in the affirmative, and therefore it chose not to direct a hearing on the merits.
[23] Member Nicols then turned to the issue of whether there was a reasonable prospect of success in proving a breach by the respondent of the applicants’ Code-protected rights, including the issue of whether s. 10 of the Code was unconstitutional. She found that the matter should not go forward on the issue of age, despite the Code’s definition and that no family status discrimination had been made out because the minor applicants were not denied a service based in their family status.
The Reconsideration Decision:
[24] At the request of the applicants pursuant to rule 26 of the Rules, Member Nicols reconsidered her previous decision. She referred to her ruling that the applications were moot because there was no outstanding live issue between the parties, and that there was no reason for her to exercise discretion to hear the matters alleging a breach of the Code despite the mootness decision. She also noted that she was not persuaded by submissions supporting the alleged breach of the Code, either based on age or on family status, and therefore held that there was no prospect of the application being successful on the merits.
[25] The reconsideration decision referred to the potential reasons for granting relief, as per rule 26.5 of the Rules:
a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[26] After referring to the applicants’ submissions about why reconsideration should be given and the decision changed, she denied the request, observing that the applicants’ submissions amounted to a re-arguing of the summary hearing. None of the factors in rule 26.5 were established.
Was the Summary Hearing Process Procedurally Unfair?
[27] The parties agree that there is no standard of review applicable to matters of procedural fairness. Either the procedure is fair or it is not, and the Court must determine whether the required level of procedural fairness has been accorded[^4].
[28] Clearly, the Tribunal followed its rules. However, the applicants submit that the systemic practice of the Tribunal is flawed and that the Tribunal violated fundamental principles of procedural fairness in its summary hearing process. They submit that unfairness occurred when:
a. the Tribunal initiated the summary hearing process without request by or input from the parties;
b. Tribunal Member Nicols both initiated the process and made the decision following the summary hearing and the reconsideration decision, thus giving rise to an apprehension of bias; and
c. Member Nicols did not refer to, and therefore can be taken to have failed to consider, the affidavit evidence filed by the applicants at the summary hearing.
[29] The applicants offered an indictment of the summary dismissal processes used by the Tribunal and pointed to the relatively small number of cases filed with the Tribunal that proceed through to a hearing on the merits. This was submitted as evidence of there being a systemic impediment to vulnerable people who wish to bring forward valid human rights complaints.
[30] This court notes that, prior to the legislative amendments which came into effect in 2008, all complaints of discrimination were made to the Ontario Human Rights Commission and were only allowed to proceed to a tribunal hearing based on the discretion of the Commission itself. Under the current regime, that former gatekeeping function no longer exists, and anyone may make a complaint directly to the Tribunal.
[31] An adjudication on the merits is only one way to bring a complaint to a conclusion, as is the summary hearing process. The rules also provide for various forms of mediated resolution[^5].
[32] The use of summary hearings by the Tribunal has received judicial approval. In Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840, at paras. 10 to12, A.C.J.S.C. Marrocco wrote:
[10] The Tribunal has the power to make rules governing the practices and procedures before it and these rules prevail over those set out in any other Act: see s. 43(1) of the Code. Even if section 43(1) did not exist, it is a well-established principle of administrative law that tribunals are the masters of their own procedure: see, for example, Iwa v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282 at pp. 307, 338.
[11] The Tribunal has in fact made Rules that govern its own procedures and practices, and Rule 19A provides that the Tribunal may hold a Summary Hearing to determine whether an application should be dismissed in whole or in part because there is no reasonable prospect it will succeed.
[12] This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed.
[33] Rule 19A specifically provides that the Tribunal may direct on its own initiative that a summary hearing be held. There is no procedural unfairness in such a direction. Normally, the party making a request for a hearing bears the burden of satisfying the decision-maker of that party’s position to justify the relief requested. It is reasonable that when the Tribunal itself initiates the hearing and identifies areas upon which submissions are required, the party whose allegations support the allegedly discriminatory conduct, in this case, the applicants, bear that burden.
[34] The submission that Member Nicols “double-hatted” as both the initiator of the summary hearing and the hearing officer is not persuasive. It is within the purview of the Tribunal to deploy its staff. Member Nicols was within her authority to review the matter, identify issues of concern, raise them with the parties, and request submissions. She had not made a decision. She was not a prosecutor. It was not “her” case. She afforded the parties the opportunity to make full written and oral submissions.
[35] As to the matter of the same member rendering a decision on the summary hearing and then making the reconsideration decision, the latter was not an appeal of the former. In the request for reconsideration, she was not mandated to adjudicate on the correctness of her previous decision, but rather to apply the factors set out in rule 26.5, to which I have referred. No apprehension of bias resulted.
[36] The applicants allege that the Tribunal practice of forbidding witness testimony and affidavit evidence at summary dismissal hearings lacks procedural fairness in violation of the Statutory Powers Procedure Act (the “SPPA”), s. 10.1 and thwarts the applicants’ ability to meet their burden of resisting summary dismissal by calling relevant evidence.
[37] The Tribunal’s Practice Direction on Summary Hearing Requests speaks of the purpose of and procedure to be followed at the hearing:
The summary hearing is used to determine at an early stage whether an application should be dismissed because it has no reasonable prospect of success.
A summary hearing usually considers:
• whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or
• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.
[38] Based on the Practice Direction, oral testimony and written affidavit evidence is not required. The Tribunal assumes all allegations to be true, which implies that evidence to prove those allegations is to be provided in due course if the matter proceeds.
[39] No procedural unfairness exists in the restriction on the calling or filing of evidence given the presumption that the factual allegations in the claim are true.
[40] In any event, the concern raised by the applicant is made academic by the fact that member Nicols did allow the filing of the two affidavits as requested, to which she referred in her decision. She is not required to specifically refer to the facts contained in them. It is reasonable to assume that she did not find the affidavit evidence material to the question of whether the application had a reasonable prospect of success.
Remaining Issues:
[41] The remaining issues raised on this application are that the Tribunal erred in dismissing the application:
a. based on a finding that there was no live controversy continuing between the parties, (i.e. that the matter was moot), and
b. based on a finding that the applicants had no reasonable prospect of success.
Within those findings, the applicants allege errors in holding that health and medical services were not within the Tribunal’s jurisdiction, and in failing to hold that the definition of “age” in the Code is discriminatory and violates the Charter.
Standard of Review:
[42] The respondents submit that the reasonableness standard applies to both the issues of mootness and reasonable prospect of success. The applicants submit that the correctness standard applies in considering the test for mootness, as well as to the Member’s observation that health and medical services are outside the Tribunal’s jurisdiction, and as to whether the definition of “age” in s. 10(1) of the Code violates s. 15(1) of the Charter.
[43] Reviewing the Tribunal decision according to the reasonableness standard is consistent with the decision of the Ontario Court of Appeal in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 47. That court, at para. 77, endorsed a purposive interpretation of s. 45.8 of the Code “that took into account legislative intent, recognizing that the legislature intended that the highest degree of deference be accorded to the Tribunal’s determination of facts, its interpretation and application of human rights law, and decisions on remedy.”
[44] As to the application of the reasonableness standard, the Court in Ontario Midwives at para. 82 concluded that both Shaw v. Phipps[^6] and Canada (Minister of Citizenship and Immigration) v. Vavilov[^7] were consistent in recognizing that “reasonableness must take into account the relevant “colour” or “constraints”, including the expertise of the Tribunal and the existence of a privative clause in s. 45.8.” The court continued, referring to paragraphs in Vavilov, stating that:
What this means in practice is that, when reviewing a decision from the Tribunal, judges are to apply reasonableness with the appropriate measure of judicial restraint that respects the distinct role of administrative decision-makers, in accordance with Vavilov, which includes the following guidance:
▪ “[R]easonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers”: at para. 75.
▪ Reviewing courts must not apply a standard of perfection when reviewing written reasons: at para. 91.
▪ Reviewing courts should pay respectful attention to the decision maker’s demonstrated expertise and application of specialized knowledge. Expertise may help explain an outcome that seems puzzling on its face: at para. 93.
▪ The history and context of the proceedings must inform the reviewing court’s reading of the reasons: at para. 94.
▪ To set aside a decision as unreasonable, “[a]ny alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.” Instead, they must be "sufficiently central or significant to render the decision unreasonable.” A decision with “sufficiently serious shortcomings” will not “exhibit the requisite degree of justification, intelligibility and transparency”: at para. 100.
▪ The reasoning must be rational and logical for the decision to be reasonable, but the analysis is not a “line-by-line treasure hunt for error”: at para. 102.
▪ Reasons should be read in light of the record and administrative regime in which they are given. Read holistically, reasons must reveal a rational chain of analysis to be reasonable. The conclusion must flow from the analysis undertaken and the record: at para. 103.
▪ Reviewing courts must not reweigh and reassess evidence; absent exceptional circumstances, the reviewing court should not interfere with factual findings of the decision maker: at para. 125.
▪ A decision maker’s failure to address key issues or central arguments may reflect a potential gap or flaw in the reasons. However, decision makers need not respond to every argument or make an explicit finding on every element leading to a conclusion. Reviewing courts cannot expect that they will: at para. 128.
[45] I accept that a review of the Decision and of the Reconsideration Decision generally should be made with reference to the reasonableness standard, applying the approach mandated by the Court in Ontario Midwives.
[46] As to mootness, the Federal Court of Appeal considered the matter in David Suzuki Foundation v. Canada (Fisheries and Oceans), 2012 FCA 40, [2013] 4 F.C.R. 155, and at para. 57 observed that, “[t]he choice of the appropriate test to apply deciding whether a matter is moot is a question of law. The decision whether to hear a moot proceeding is discretionary. The identification of the factors which must be considered in exercising that discretion is also a question of law.” [citations omitted].
[47] On the issue of jurisdiction, the Supreme Court in Vavilov stated at para. 63 that “the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies.” [citations omitted].
[48] Based on the foregoing, to the extent that jurisdiction and the legal principles applicable to a finding of mootness are to be reviewed, I am satisfied that a correctness standard should apply. As to the constitutional challenge to the definition of “age” in the Code, I will say more below.
Mootness:
[49] There is no dispute that the applicants received their vaccination of choice before the application was served on the respondents. There is also no dispute that the application against OPH was withdrawn before the Interim Decision was made. Approximately one month elapsed from the date the OMH first authorized the Pfizer vaccine for children aged 6 to 11 years on March 25, 2022, until the applicants received the Moderna vaccine pursuant to the settlement with OPH on April 26, 2022.
[50] Member Nicols was aware of those facts. She was also aware of the submission by the applicants, as reflected in the Decision of October 3, 2022, at para. 13, that they considered a live controversy to be continuing on the question of whether the OMH owed compensation to the applicants for violating their Code rights.
[51] Member Nicols specifically referenced the Borowski decision as the leading case on mootness. The general principle is that courts will not hear cases that raise merely hypothetical or abstract questions. She identified the test as a two-step process at para. 24 of her Decision:
First it must be determined whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, i.e., if there is no live issue, then the Court must decide whether it should exercise its discretion to hear the case anyway.
She continued at para. 26:
Therefore, the first key question is whether there is a live controversy between the parties? If I determine that there is a live controversy, then clearly the matter is not moot and must continue in the Tribunal process to the next step. If it is deemed to be moot, then I still have to determine whether it is right and appropriate for me to consider the applicants’ allegations of a breach of the Code, in spite of the moot determination before me.
[52] There was no legal error by the Tribunal in identifying the elements of the Borowski test or the factors to be considered. On that point, the decision was correct.
[53] The applicants submit that the Tribunal misapprehended the “live controversy” prong of Borowski, but it is the conclusion to which they object. The applicants did not point to any factors that were omitted or misidentified in drawing the conclusion. They rely only on the outstanding request for compensation as evidence of the ongoing live controversy.
[54] The question of whether a live controversy continued to exist based on the potential for the young applicants to receive a monetary remedy arising from a one-month delay in receiving their vaccination of choice is a matter which more properly relates to the second part of the Borowski test, which engages the Tribunal’s discretion. Acknowledging the Tribunal’s expertise in dealing with complaints of discrimination, it is obvious that the potential for a monetary remedy is a well-understood aspect of a claim. Member Nicols can be presumed to have considered the matter and it is within her discretion, reviewed on a reasonableness standard, to have declined to continue the matter applying the Borowski criteria. The exercise of her discretion is subject to the reasonableness standard of review. It was reasonable and attracts deference.
[55] The Interim Decision confirmed that the application was settled as against OPH based on the filing of Form 25 and “the effect of Form 25 is that the request[^8] is now moot.” The Interim Decision goes on to state that it therefore only addresses the applicants’ continuing application against the OMH and requests submissions to be made at the summary hearing.
[56] The applicants take the position that any issue of mootness as regards the OMH was res judicata because of the original conclusion on mootness. There is no merit in that submission. The Interim Decision clearly differentiates between the claim made against OPH and the claim made against the OMH. As should be obvious, the full resolution of the matter against OPH meant that the dispute was moot as between the applicants and the OPH. In any event, the Tribunal’s decision was reasonable and is entitled to deference.
No Reasonable Prospect of Success:
[57] The overarching question proposed to the parties by the Tribunal in its Interim Decision, and subsequently referred to in the Decision and Reconsideration Decision, was whether the application should be dismissed on the basis that there was no reasonable prospect of success. That question is embedded in rule 19A.1 which deals with summary hearings, and it is repeated in the Practice Direction on Summary Hearings.
[58] The Tribunal determined, in its Decision and in the Reconsideration Decision, that there was no reasonable prospect of success. Those determinations are entitled to deference on the reasonableness standard of review.
[59] The finding on mootness alone, discussed above, leads to the conclusion that there is no reasonable prospect of success. No further analysis of the Tribunal decisions is required.
[60] However, Member Nicols went on to consider whether, in any event of the mootness issue, there was a reasonable prospect of success. She asked for submissions from the parties to be made at the summary hearing. She was not persuaded that there was a link between the vaccination controversy and discrimination based on family status and age. She further considered the submission by the OMH that there was no service relationship between the applicants and the OMH which would be fatal to the application. The alleged Code breach was that the applicants did not receive “equal treatment with respect to services … without discrimination because of … age, [and] family status” which is mandated under s. 1 of the Code.
[61] As to family status, Member Nicols noted at para. 43 of her decision:
While the Litigation Guardian did not explicitly address how the definition of family status in the Code applies to the allegations in this instance, he stressed that the respondents’ actions denied his children’s rights to autonomy and a choice based on his informed consent. He talked about the fact that in his opinion the definition of family status in the Code protects the parent-child relationship and the role of parents to make appropriate and informed choices in their child’s best interests. He stated that the respondent took away his children’s rights under the Code by discriminating against them on the grounds of age and their Charter rights by depriving them and their parents of a choice in the vaccine that they received. He alleged that this denial of choice amounted to a damage to his children’s dignity, which is compensable under the Code.
[62] The Member’s conclusion on that matter, set out at paras. 50 and 51 of her decision, referred to the definition of “family status” in the Code as being “in a parent and child relationship”. There were no allegations that the minor applicants were denied a particular service due to their family status. She found it not clear that the family status rights could have been in any way engaged or breached by the respondents. That determination, which was squarely within the Tribunal’s area of expertise, is reviewable on a reasonableness standard, and it is entitled to deference.
[63] The OMH argued at the summary hearing that it was not a service provider as to the vaccines in the Province of Ontario. That role was played, as it relates to the applicants, by OPH. Member Nicols did not specifically find that there was no service relationship between the parties. She observed at para. 57: “If I find that the respondent is not a service provider in this instance and there is no service relationship between the parties for the provision of vaccination, then clearly the Applications have no reasonable prospect of succeeding.” Since there was no reliance on that issue to justify the decision, it is not necessary for it to be reviewed.
[64] Member Nicols acknowledged the applicants’ submission that an allegation of substandard medical care of children should not be lightly or summarily dismissed. She responded in her decision at para. 59 by stating that it is not the Tribunal’s mandate “to evaluate and adjudicate the standards of medical care by health professionals” or medical treatment decisions, deferring such matters to the Health Professions Appeal and Review Board. She obliquely acknowledged the affidavit evidence provided by a doctor on behalf of the applicants that he medically preferred one vaccine over the other for his patients, and she reasoned, again responding to the applicants’ submission about substandard medical care of children, that the choice of one particular appropriately approved vaccine over another would be unlikely to amount to “substandard medical care”.
[65] Although the question of jurisdictional boundaries as between administrative agencies is a question of law to be reviewed on a standard of correctness, it is unnecessary to deal with that issue in this case, since it did not form the basis of any part of the decisions under review. The jurisdictional comments were in effect obiter dicta.
[66] As to age, Member Nicols acknowledged that Tribunal jurisprudence is not consistent as to whether the Code’s definition of age contravenes the Charter. She concluded, “in the circumstances”, that the age discrimination claim should not go forward to a merits hearing, “in spite of the Code’s definition of age.” Her decision on the point is mainly a conclusion rather than a line of reasoning. However, given the reasonableness standard of review and after applying the factors listed in Ontario Midwives to which I have referred, I am not prepared to conclude that that aspect of the decision was unreasonable.
The Charter Challenge:
[67] The application included a challenge to the definition of age in the Code, which was supported by a specific Notice of Constitutional Question served just before the Case Assessment Direction was issued on August 12, 2022.
[68] No findings on the Constitutional Question were made by the Tribunal in the Decision or the Reconsideration Decision. Resolving the question of constitutionality in the application was only required assuming a continuation of the application itself. Since the matter was dismissed, the constitutionality question was no longer a live issue.
[69] As no decision on constitutionality was made by the Tribunal, it is not appropriate for this court to rule on such a matter on judicial review, in effect at first instance, particularly without a full record.
[70] For the foregoing reasons, the application is dismissed.
Costs:
[71] By agreement, there will be an award of $10,000 costs inclusive of HST and disbursements, payable by the applicants to the respondent His Majesty the King in Right of Ontario as represented by the Minister of Health. There will be no order of costs as to the respondent the Human Rights Tribunal of Ontario.
Reid J.
I agree
Myers J.
I agree
Leiper J.
Released: August 21, 2024
CITATION: T.A. v. Ontario, 2024 ONSC 4580
COURT FILE NO.: DC-22-2746
DATE: 2024-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Reid, Myers, Leiper JJ.
BETWEEN:
T.A. as represented by their Litigation Guardian A.A.; and T.A. as represented by their Litigation Guardian A.A.
Applicants
– and –
His Majesty the King in Right of Ontario as represented by the Minister of Health
– and –
Human Rights Tribunal of Ontario
Respondents
DECISION ON JUDICIAL REVIEW
Reid J.
Released: August 21, 2024
[^1]: Rule 19A provides: 19A.1. The Tribunal may hold a summary hearing on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. 19A.2. Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements. [^2]: Interim Decision dated May 4, 2022, at para. 7. [^3]: Being Part I of the Constitution Act, 1982 [^4]: See, for example, Aggarwal v. Sheridan College, 2021 ONSC 1399, at para. 44, and Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632, 446 D.L.R. (4th) 585, at para. 46. [^5]: See, for example, rules 15 and 15A. [^6]: 2012 ONCA 155, 347 D.L.R. (4th) 616 [^7]: 2019 SCC 65, [2019] 4 S.C.R. 653 [^8]: Form 16 Request for an Interim Remedy