A.P. v. L.K., 2021 ONSC 150

COURT FILE NO.: FS-18-2842-0000

DATE: 20210107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.P.

Appellant

– and –

L.K.

Respondent

– and –

Caroline Kim and Kaitlin Jagersky, for the Appellant

Gary Joseph and Stephen Kirby, for the Respondent

Medical Officer of Health (City of Toronto)

Intervener

Carol Smith, Fred Fischer and Alison Mintoff, for the Intervener

HEARD: September 29, 2020

PUBLICATION BAN

A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, prohibiting the publication of:

a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials;

b) any evidence or information about the children’s health except for the fact that they are unvaccinated;

c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.

J.T. Akbarali J:

Overview

[1] The appellant appeals from an arbitrator’s final award dated April 11, 2018, in which he determined that it was not in the best interests of the parties’ two children, N and M, to become vaccinated.

[2] The appellant raises several issues on this appeal. He argues that the arbitrator erred by failing to admit certain government documents as public records, and by failing to take judicial notice of facts about the safety and efficacy of vaccines. He argues that the arbitrator failed in his gatekeeping function when qualifying the respondent’s proposed experts, and allowing the respondent’s experts to give evidence outside the scope of their expertise. He argues that the arbitration process was unfair to him, as a self-represented party. He argues that the arbitrator made palpable and overriding errors of fact, by misapprehending evidence, considering irrelevant or unreliable evidence, and disregarding relevant evidence. He argues that, had the arbitrator considered the evidence that was properly before him, which is supported by the fresh evidence I earlier admitted on this appeal (see 2019 ONSC 7256), the arbitrator would have reached the opposite conclusion and ordered that the children become vaccinated.

[3] At the core of all the issues raised by the appellant, the question I must answer on this appeal is whether the arbitrator committed reviewable error when he found that it was in the best interests of the children to remain unvaccinated.

[4] For the reasons below, I conclude that the arbitrator erred in qualifying the respondent’s experts, and in failing to admit certain public documents offered by the appellant for proof of the truth of their contents. In part due to these evidentiary errors, the arbitrator made palpable and overriding errors of fact in determining that it was not in the best interests of the children to become vaccinated. Having regard to the admissible evidence, I conclude that the best interests of the children require that the appellant be given sole responsibility to make vaccination-related decisions for them.

Background

[5] The parties married in 2001 and separated in January 2013. At the time, the children were six and two years old. They were, and remain, unvaccinated.

[6] Pursuant to Minutes of Settlement executed by the parties in July 2015, the parties resolved many of the issues in dispute between them. Yet the issue of whether to vaccinate the children remained unresolved. The appellant wished the children to become vaccinated; the respondent did not. The parties agreed that, if they were unable to resolve major decisions regarding the children’s health care, including vaccination, they would submit the issue to arbitration.

[7] In January 2017, both children contracted a vaccine-preventable disease, from which they both recovered.

[8] Beginning in June 2017, the parties attended an arbitration at which vaccination, as well as certain other parenting issues, were raised. It is fair to say that the focus of the arbitration was principally the question of whether vaccinating the children was in their best interests. The other aspects of the arbitration decision are not appealed, and I do not address them in these reasons.

[9] The arbitration agreement permits appeals based on questions of law without leave, questions of mixed fact and law, and questions of fact.

[10] The arbitration was scheduled to take place over two days, on June 27, 2017 and June 30, 2017. However, the arbitration did not conclude after the second day as planned. As a result, the parties reattended for a third, and final, day of arbitration, on September 20, 2017.

[11] The parties had contemplated adducing expert evidence during the arbitration. The timeline set by the arbitrator required the respondent, who was represented by counsel, to deliver her expert reports at least 30 days in advance of the arbitration. The reports were, in fact, served late, thirteen and eleven days before the arbitration.

[12] The appellant, who was self-represented, did not have an expert available at the first two days of arbitration. Although he apparently had an expert lined up, he testified at the arbitration that he was unable to find someone who was available to respond to the respondent’s reports. During the break in the arbitration, he located an expert. He attempted to adduce evidence from the expert on the final day of the arbitration, but he had only a letter from the proposed expert. The arbitrator decided not to admit the letter, nor to allow the appellant to attempt to contact the expert to see if she could attend to give evidence in person.

[13] At the arbitration, the respondent gave evidence, and called two experts: Dr. Toni Bark and Dr. Shiv Chopra, both of whom gave evidence calling into question the safety and efficacy of vaccines, among other things. The respondent also called the children’s family doctor, Dr. Pham. Finally, she called a friend, upon whose evidence the arbitrator did not rely.

[14] The appellant gave evidence. He also called a friend, upon whose evidence the arbitrator did not rely. As noted, the appellant did not call an expert, but he did seek to admit certain government documents attesting to the safety and benefits of vaccines under the public documents exception to the hearsay rule. The arbitrator admitted those documents for proof of the fact that the statements were made, but not for proof of their contents.

[15] The arbitrator released his final award on April 11, 2018.

The Arbitrator’s Decision

[16] The arbitrator noted that the children were unvaccinated at separation and remained unvaccinated. He noted that the respondent does not support vaccinations “for a variety of reasons.” He found that, during the marriage and prior to separation, the appellant acceded to the respondent’s view of vaccinations, but that he is no longer prepared to do so: at para. 33.

[17] The arbitrator characterized the appellant’s argument as “all levels of government – municipal, provincial and federal [sic] support vaccination.” He noted that the appellant had introduced “several documents, pamphlets, and the like, produced by all level [sic] of government on this issue”: at para. 35.

[18] The arbitrator accepted “as a general statement” that all levels of government support vaccinations, but also noted that parents retain the right to make health-related decisions for their children that may “differ from conventional wisdom,” including choosing not to vaccinate their children: at paras. 36-37.

[19] He summarized the respondent’s arguments against vaccination as follows: (i) she does not believe that the science supporting vaccinations has been adequately or rigorously tested; (ii) there is a body of evidence indicating that vaccinations may be more harmful than beneficial; and (iii) there is a conspiratorial nature to the interplay between “big pharma” and government that leads to the propensity of vaccination medication: at para. 38.

[20] He declined to consider the last argument, finding it irrelevant to his analysis: at para. 39. I pause here to note that, while there has been some debate in this appeal as to the nature of the arbitrator’s conclusions, it is apparent from this portion of his reasons that he considered the first two arguments advanced by the respondent, placing the safety and efficacy of vaccines squarely in issue on the arbitration.

[21] In his analysis, the arbitrator gave “significant weight to the fact that during the marriage the parties did not vaccinate their children,” referring to the appellant having acceded to the respondent’s views. He thus relied on the status quo of the children’s unvaccinated status: at para. 42.

[22] The arbitrator found that there was no evidence that either child’s health had been negatively impacted as a result of their unvaccinated status. He noted evidence from the children’s physician that the children had been relatively healthy since birth: at paras. 43-44.

[23] The arbitrator referred to the evidence of the respondent’s expert, Dr. Bark, whose CV he described as “extensive”: at para. 49. He noted that she had given evidence with respect to each vaccination that forms part of government protocols and in each circumstance “indicated that the risks outweigh the benefits”: at paras. 52-53. At paras. 53-54, he referred to some of Dr. Bark’s evidence, including:

a. There are numerous cases of neurological damage as a result of the administration of the diphtheria and pertussis vaccine, and no benefits to immunizing for tetanus ahead of the problem;

b. Two of out 1000 people die from the HPV vaccine and two in 10,000 have a risk of adverse effects to the vaccine, while the risk of cervical cancer is 1 in 100,000;

c. The risk of death from measles is extremely rare, and measles in children can aid in the fight against cancer. The MMR vaccine can cause or contribute to learning disabilities;

d. The polio vaccine is twice as lethal as the illness.

e. There can be large doses of mercury and other harmful toxins in many, if not all, the common vaccines. Vaccines include aluminum which can cause neural damage.

[24] The arbitrator stated, “[i]n fairness to [the appellant], he did not call any expert in reply. I strongly suspect that for every antivaccination proponent there is an equally fervent opposite party.” He stated that it was not his role to determine the efficacy of the Canadian vaccination system “or to make findings on the correctness of the evidence of Dr. Bark”: at para. 55.

[25] He then described what was most “compelling” about Dr. Bark’s evidence, at para. 57:

[The respondent] has a certain genetic variation wherein her body does not produce specific enzymes needed to detoxify certain toxins. In her report Dr. Bark states “[the respondent] tested homozygous for a genetic SNIP variation which leaves her challenged in terms of her methylation cycle and hence detoxification abilities. This is pertinent because her homozygous status translates to her sons being heterozygous at best and possibly homozygous as well.

[26] The genetic SNIP variation referred to by Dr. Bark and the arbitrator is referred to in these reasons as the respondent’s MTHFR genetic variation.

[27] The arbitrator concluded, “[i]n simple terms, vaccinations pose a greater risk to [the children] than to other children due to the possibility that they may also have limitation on the ability to detoxify the toxins within most vaccines”: at para. 58.

[28] The arbitrator also reviewed the evidence of Dr. Chopra. He found that Dr. Chopra’s evidence on the vaccination culture perpetuated by big pharma, “while an interesting topic of conversation, […] is irrelevant to my determination in this case”: at para. 63.

[29] He then described what “resonated” for him from Dr. Chopra’s evidence, that “the proper medical studies regarding the effects of the vaccinations had not been done.” He noted Dr. Chopra’s evidence that “the medical community by and large does not make the necessary inquiries, and blindly follows the vaccination protocols”: at para. 64.

[30] He also noted Dr. Chopra’s evidence, consistent with Dr. Bark’s evidence, that “overall, the negative side effects [of vaccinations] outweigh the limited positive benefits.” He referred to Dr. Chopra’s evidence that “the risks to an unvaccinated child within a population that is generally vaccinated is extremely small”: at paras. 66-67.

[31] He then concluded, “I am unable to find any risk to [the children] if they remain unvaccinated. Further I am satisfied on the evidence that the vaccinations may pose additional risk to them given [the respondent’s] medical condition, which they may have.” He referred to the fact that both children had contracted a vaccine-preventable disease, but “the illness itself was not dangerous or fatal”: at paras. 68-69.

[32] The arbitrator found that the appellant’s support for vaccination was “not without merit,” but concluded that the appellant did not offer any contradictory evidence regarding the “extra risk” to the children given the respondent’s genetic structure. “In short, his evidence was not sufficient to overcome the specific evidence of risk presented by [the respondent]”: at paras. 70, 74.

[33] The arbitrator also found that “perhaps most compellingly, the tug of war over vaccinations must end.” He found that the vaccination issue was “a source of tension between the parties and is now a source of anxiety for the [children].” He stated that an award for vaccinations would cause more problems than it would solve, finding that “[t]he evidence suggests that the children have aligned to a certain extent with [the respondent’s] views on vaccinations. The prospect that they will be forced to be vaccinated is making them anxious and stressed. Their best interests require that they be freed from this conflict, which can only occur with the Award I have made”: at paras. 78-79.

[34] The arbitrator thus found that it was not in the best interests of the children to become vaccinated. Having regard to his reasons, which I have described above, I conclude that his determination that it was not in the best interests of the children to become vaccinated rests on four pillars:

a. The status quo supports the children remaining unvaccinated;

b. There is no risk to the children if they do not become vaccinated;

c. The children are at increased risk from vaccination due to the respondent’s MTHFR genetic variation;

d. The children are anxious and stressed due to the prospect that they will be forced to become vaccinated, and only an Award that they not become vaccinated will free them from the conflict between the parties.

Procedural History of the Appeal

[35] The appellant appealed the arbitrator’s decision, but after he filed the Notice of Appeal, the appeal fell into abeyance.

[36] The arbitrator subsequently released a costs award, on March 18, 2019, awarding costs to the respondent in the amount of $34,833.66.

[37] On April 30, 2019, the appellant brought a motion that was returned before me seeking leave to extend the time to perfect his appeal. I adjourned that motion for a month to allow the respondent time to retain counsel.

[38] The motion was returned before Kristjanson J. on May 30, 2019, at which time the parties entered a consent order and timetable to perfect the appeal. The timetable provided for a motion for fresh evidence to be brought in advance of the appeal. The respondent sought a publication ban. Justice Kristjanson ordered the respondent to provide a Notice to the Media and ordered an interim publication ban.

[39] Since that time, I have heard multiple motions in this proceeding. I made a non-publication order on June 28, 2019: 2019 ONSC 4010, and dealt with costs of that motion on July 12, 2019: 2019 ONSC 4230.

[40] I admitted fresh evidence on appeal in reasons dated December 13, 2019: 2019 ONSC 7256. I describe the fresh evidence in greater detail, below.

[41] I subsequently heard a motion brought by the Medical Officer of Health (City of Toronto) for leave to intervene, which I granted on April 30, 2020: 2020 ONSC 2520.

[42] Shortly before the appeal was originally scheduled to be heard, the respondent brought a motion seeking that I recuse myself because of a reasonable apprehension of bias. I dismissed that motion on September 18, 2020: 2020 ONSC 5551.

[43] The appellant also seeks to set aside the costs award below if he succeeds on this appeal.

The Fresh Evidence

[44] Both parties sought to admit fresh evidence on appeal.

[45] The appellant sought to admit evidence from three experts, as well as his own fresh affidavit. The respondent sought to admit fresh evidence from the children’s family physician, Dr. Pham.

[46] I briefly describe the fresh evidence I ruled could be introduced on appeal. As necessary, I will refer to the evidence in the record (including the fresh evidence) as I analyze the issues raised by this appeal.

[47] I allowed the appellant to adduce evidence from each of the three experts he proposed on the motion.

[48] Dr. Lawrence Loh is a public health and preventive medicine specialist physician and family physician. He is an adjunct professor at the Dalla Lana School of Public Health at the University of Toronto. At the time he swore his affidavit he served as Associate Medical Officer of Health for the Region of Peel. He previously served as Senior Medical Consultant at the Public Health Agency of Canada in the Vaccine Safety Section. He has held other public health positions as well.

[49] In my reasons on the fresh evidence motion, at para. 70, I described Dr. Loh’s evidence as follows:

Dr. Loh’s evidence addresses the risks of contracting vaccine-preventable illnesses, the safety and side effects of vaccinations, including the use of adjuvants, the scientific literature regarding the safety and effectiveness of vaccines and adjuvants, the role of NACI [the National Advisory Committee on Immunization], contraindications to vaccination, including whether the MTHFR genetic variation is a contraindication to vaccination, scientific studies about whether there is any correlation between any genetic mutation and unique risks to children receiving vaccination, the risk to children from being unvaccinated as opposed to being up to date in their vaccinations, and the impact of receiving childhood vaccinations at later ages than typical.

[50] Dr. Loh’s evidence supports both the safety and efficacy of vaccines. His evidence also supports vaccination for those who have the MTHFR genetic variation.

[51] Dr. Alana Rosenthal is a pediatric infectious diseases specialist who has worked as a consultant in the field of infectious diseases at the Hospital for Sick Children and at North York General Hospital. She is certified as a specialist in pediatrics and in infectious diseases by the Royal College of Physicians and Surgeons. She has other clinical experience in pediatrics and in pediatric infectious diseases, and was a clinical fellow at the University of Toronto medical school in pediatric infectious diseases. Dr. Rosenthal saw the children during the break in the arbitration. The letter the appellant sought to introduce at the return of the arbitration in September 2017 was written by Dr. Rosenthal.

[52] Dr. Rosenthal opines that infectious diseases are a significant cause of morbidity and mortality in Canada and worldwide, and that the development of vaccines is essential for the health of individuals and others with whom they may come into contact. She explains that vaccines provide children with active immunity and are a much safer way for the body to make antibodies than by getting a disease, which risks disability or death. Dr. Rosenthal opines that vaccines are safe and are considered to be so by national and international public health experts. She gives evidence about the side effects of vaccines and concludes that they are mild. She also deposes that the MTHFR genetic mutation is not a contraindication to vaccination according to the scientific literature. She concludes that the children are at greater risk from being unvaccinated than from being caught up on their vaccinations, and that it is not uncommon for people to receive childhood vaccinations at later ages than typical and still receive all the benefits of those vaccinations. She deposes that the benefits of vaccines far outweigh the minor side effects of them.

[53] Dr. Neal Sondheimer is a pediatrician, geneticist and biochemical geneticist. He received a Ph.D. in molecular genetics and cell biology at the University of Chicago and the Pritzker School of Medicine. Dr. Sondheimer did clinical post-graduate training in pediatrics, genetics and molecular genetics at the Children’s Hospital of Philadelphia and the University of Pennsylvania, where he was an assistant professor of pediatrics and staff biochemical geneticist. In 2015, he took a position at the Hospital for Sick Children. At the time of swearing his affidavit, he was a staff physician in metabolic genetics and an associate professor of paediatrics at Molecular Genetics at the University of Toronto.

[54] Dr. Sondheimer’s evidence focuses on the MTHFR genetic variation. In my reasons on the fresh evidence motion, I described it, in part, this way, at paras. 80-82:

He states that the role of the MTHFR variation is important, but it is limited to the inter-conversion of different states of folate. The failure of this system, caused by pathogenic variants in MTHFR, impairs the methylation of homocysteine to methionine, but it does not impact vaccination or pose any credible risk for vaccination. In addition, MTHFR does not detoxify or in any other way interact with heavy metals.

Dr. Sondheimer states that no recommendation against the vaccination of patients affected by MTHFR-associated homocystinuria plausibly exists, and patients with serious inherited errors of metabolism are never instructed to avoid vaccines. Rather, vaccines are critical to patient safety. No pre-screening is required for vaccinations.

Dr. Sondheimer states that if the children were carriers of MTHFR, the recommendation would be that they be fully vaccinated. If the children had MTHFR-associated homocystinuria, the recommendation would also be that they should be fully vaccinated.

[55] I disallowed much of the fresh evidence that the appellant sought to introduce from himself, but allowed him to adduce some fresh evidence about litigation in which Dr. Chopra had been involved against various government entities.

[56] I also permitted the respondent to adduce fresh evidence from Dr. Pham, in which, among other things, she states her opinion that the parties’ older child has the capacity to understand the information relevant to making treatment decisions with respect to vaccination, and is sufficiently mature to consent or to refuse to consent to receiving vaccinations. Dr. Pham deposes that the child has expressed the wish not to be administered any vaccinations at the present time.

[57] Dr. Pham also deposes that the children are in excellent health, and there is no imminent or foreseeable risk to their current health status. She opines that the children’s risk of contracting a serious illness as a result of not being vaccinated is overall low, but not zero.

[58] Dr. Pham deposes that she recommends vaccination to all her patients based on her knowledge and understanding of the scientific evidence on the efficacy of vaccines, but that she respects patient autonomy.

[59] Dr. Pham also explains that her “greatest and only concern at this point in time is for the psychological and emotional health of [the children]” in view of the high conflict between the parties and the media attention this case has attracted. She references an occasion when the older child required an increased level of medical attention in 2016 which, in her view, was likely related to stress and anxiety due to the parental conflict.

[60] All the witnesses were cross-examined on their fresh evidence, and the transcripts were filed on the appeal. The cross-examinations were not relied upon heavily by the parties during argument; only a few references to cross-examination transcripts were made.

Issues

[61] On this appeal, the parties raise the following issues:

a. Did the arbitrator err in exercising his gatekeeping function when permitting evidence from the respondent’s experts?

b. Should I disallow any evidence from the appellant’s experts on the basis that they are not impartial, or that their evidence does not comply with r. 20.1 and 20.2 of the Family Law Rules, O. Reg. 114/99?

c. Did the arbitrator err in failing to admit certain of the documents tendered in evidence by the appellant for proof of the truth of their contents, based on the public documents exception to the hearsay rule?

d. Did the arbitrator err by failing to take judicial notice of facts regarding the safety and efficacy of vaccines?

e. Did the arbitrator err by failing to treat the parties equally and fairly?

f. Did the arbitrator err in concluding that the children’s unvaccinated status was a status quo?

g. In concluding that it was not in the best interests of the children to become vaccinated, did the arbitrator make palpable and overriding errors of fact, and in particular:

i. Did the arbitrator err in finding that vaccines have negative outcomes, are not safe, are not fully studied, and that their negative side effects outweigh their limited positive benefits?

ii. Did the arbitrator err in finding that there is no risk to the children in remaining unvaccinated?

iii. Did the arbitrator err in finding that there is a specific risk to the children in becoming vaccinated, due to the respondent’s MTHFR genetic variation?

iv. Did the arbitrator err in finding that the children’s views on vaccination have aligned with the respondent?

v. Did the arbitrator err in finding that the dispute between the parties about vaccination is a source of anxiety for the children?

h. If I find the arbitrator did not commit reversible error in his determination regarding the children’s vaccination status, should the court exercise its parens patriae jurisdiction to order the vaccination of the children?

i. If I find that the arbitrator erred in his conclusion that it was in the children’s best interests not to become vaccinated, what is the remedy? Is becoming vaccinated now in the children’s best interests?

[62] I turn now to the analysis of these issues.

The Standard of Review

[63] The parties agree on the appropriate standards of review. The standard of review on questions of law is correctness, while findings of fact and factual inferences are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 25. A question of mixed fact and law involves the application of a legal standard to a set of facts, and is subject to review for palpable and overriding error, except for extricable questions of law: Housen, at para. 26. A question of law may be extricable from a question of mixed fact and law if, for example, the incorrect legal standard is applied, or a part of a legal test is not considered by the decision-maker. The extricable question of law is reviewed on a correctness standard.

[64] The decision of an arbitrator deserves as much deference on appeal as does the decision of a trial judge: Reati v. Racz, 2016 ONSC 1967, 81 R.F.L. (7th) 166, at para. 28.

[65] As the Court of Appeal held in Petersoo v. Petersoo, 2019 ONCA 624, 29 R.F.L. (8th) 309, at para. 35:

Mediation/arbitration is an important method by which family law litigants resolve their disputes. Indeed, the courts encourage parties to attempt to resolve issues cooperatively and to determine the resolution method most appropriate to their family. The mediation/arbitration process can be more informal, efficient, faster and less adversarial than judicial proceedings. These benefits are important with respect to parenting issues, which require a consideration of the best interests of children. The decision of an arbitrator, particularly in child related matters, is therefore entitled to significant deference by the courts.

[66] Appellate courts cannot interfere with a discretionary decision just because they would have reached a different conclusion. Only where the original decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong can an appellate court interfere: Slaughter v. Slaughter, 2013 ONCA 432, at para. 6.

Admission of the Respondent’s Expert Evidence

[67] The appellant argues that the arbitrator erred in law by failing to serve as a gatekeeper with respect to the expert evidence the respondent tendered. By suggesting an error of law, the appellant invokes a correctness standard of review. The respondent argues that the qualification of expert witnesses is a discretionary decision, entitled to deference on appeal.

[68] In support of her argument that qualifying an expert witness is a discretionary decision, with a “low threshold”, the respondent relies on para. 41 of Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584.

[69] In Bruff-Murphy, the court relied on its decision in R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 229-230 where the court put the matter very clearly:

The application of the Mohan requirements in any proceedings is case-specific. In each case, the trial judge determines issues of relevance and necessity within the factual matrix of the trial in which he or she is presiding. The inquiry is very much a function of the other evidence and issues in the case being tried: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 12; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 370.

The case-specific nature of the Mohan inquiry has implications for the standard of appellate review. Appellate review is not precluded, as for example, where a finding of admissibility under Mohan is clearly unreasonable, contaminated by an error in principle or reflective of a material misapprehension of evidence. That said, appellate courts should proceed from a stance of deference to decisions of trial judges to admit or reject expert opinion evidence: D. (D.), at para. 13.

[70] I turn to review the framework for the admission of expert evidence.

[71] I begin by noting the importance of the trial judge’s role as gatekeeper. As the Court of Appeal wrote in Bruff-Murphy, at para. 2:

The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts.

[72] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 (“White Burgess”), the Supreme Court of Canada provided important guidance on the admission of expert evidence, expressing “concerns about the impact on the litigation process of expert evidence of dubious value,” and the dangers inherent in expert evidence, including the risk of admitting junk science, the potential prejudice created by an expert’s reliance on unproven material not subject to cross-examination, the risk that a contest of experts distracts rather than assists the trier of fact, and the danger that expert evidence may lead to an inordinate expenditure of time and money: at paras. 16, 18–19. At para. 16, the Court wrote:

The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges should play as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.

[73] In the first stage of the analysis, for expert evidence to be admissible, there are four threshold requirements that must be established (White Burgess, at paras. 19 and 23, citing R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; see also R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 82):

a. Relevance, which at this stage means logical relevance;

b. Necessity in assisting the trier of fact;

c. Absence of an exclusionary rule; and

d. A properly qualified expert.

[74] In addition, where the expert opinion at issue is based on novel or contested science, or science used for a novel purpose, the first stage of the analysis also requires the proponent of the proposed expert evidence to establish the reliability of the underlying science for that purpose: White Burgess, at para. 23, citing R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 33, 35-36, and 47.

[75] Courts require a reliable foundation for novel or contested science to be admissible as evidence. In J.-L.J., at para. 33, Binnie J. set out four factors to evaluate reliability:

a. Whether the theory or technique can be and has been tested;

b. Whether the theory or technique has been subjected to peer review and publication;

c. The known or potential rate of error or the existence of standards; and

d. Whether the theory or technique used has been generally accepted[^1].

[76] Reliability is also part of both relevance and necessity in the threshold enquiry. Scientific evidence “must meet a certain threshold of reliability in order to have sufficient probative value to meet the criterion of relevance”: R. v. K.A., (1999), 1999 3793 (ON CA), 176 D.L.R. (4th) 665 (Ont. C.A.), at para. 84. As well, “it could hardly be said that the admission of unreliable evidence is necessary for a proper adjudication to be made by the trier of fact”: K.A., at para. 84.

[77] In the second stage, trial judges have a residual discretion to exclude proposed expert evidence when its probative value is outweighed by its prejudicial effect – a cost benefit analysis. The “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: White Burgess, at para. 24, citing Abbey, at para. 76.

[78] At this second stage, the trial judge must consider the expert’s independence and impartiality. In White Burgess, at para. 54, the Court described the balancing exercise as follows:

[R]elevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

[79] In the discretionary stage, concerns about reliability will extend to the subject matter of the evidence, the methodology used by the proposed expert to come to their opinion, the expert’s expertise, and the expert’s impartiality and objectivity: Abbey, at para. 87.

[80] I now turn to consider whether the arbitrator erred in admitting the respondent’s expert evidence.

Dr. Toni Bark

[81] The appellant raises several concerns about the admission of Dr. Bark’s evidence. In particular, he argues that Dr. Bark was not a qualified expert; that her opinion was based on contested science, and as a result, warranted a higher level of scrutiny; that her opinion was not reliable; and that she was not impartial.

[82] In considering whether Dr. Bark was a qualified witness, I note the following, drawn from her oral evidence about her qualifications and from her curriculum vitae, filed as an exhibit on the arbitration:

a. Dr. Bark received her M.D. in 1986;

b. Dr. Bark obtained postgraduate training and residency appointments in pediatrics in 1986-1987, rehabilitative medicine in 1987-1988, and pediatrics again in 1990.

c. Dr. Bark’s hospital and clinical experience between 1991 and 1992 includes pediatric experience. Between 1991-1995, she was engaged in occupational medicine.

d. It seems that beginning in 1993, Dr. Bark took an interest in alternative medicine. Her oral evidence was unclear as to whether she studied naturopathic medicine, and I note it does not appear on her c.v. Between 2011-2014, she was the Vice President of the American Institute of Homeopathy.

e. She took other education in LEED Training and Certification and “US Green Builders Council”.

f. In oral evidence, she stated that she completed “the Masters at Boston University Medical School and Masters of Medical Science with a focus on disaster preparedness and management.” This degree does not appear on her c.v.

g. Dr. Bark maintains a medical practice of which she is the owner, called “the Center for Disease Prevention.” Her website does not include any reference to her claimed expertise in vaccinations.

h. She held a faculty appointment as an instructor in “Psychoneuroimmunology, Homeopathy” at the University of Chicago Medical School from 1997-2017.[^2]

i. In 2012, she was an adjunct professor in healthcare emergency management at Boston University.

j. She has done consulting work in environment health and design, “legal consulting”, although it is unclear in what field, and was a disaster consultant for Burning Man 2012;

k. She has written two publications, entitled “How to Keep Healthy: Colds and Flu” in 2000, and “How to Stay Fertile Longer” in 2002, both for “Women’s Health”;

l. She is a contributing author to two University of Chicago Medical School texts from 2005 and 2007 relating to homeopathy and alternative medicine.

m. She has lectured on topics such as raw food, disease prevention, the environment and health, fatty acids and insulin resistance, and alternative treatments for ADHD. In 2012 she gave a lecture entitled “The Ethics of Vaccine Policy” for the Ziegler School of Rabbinical Studies. Her c.v. indicates that between 2010 and 2012 she gave “Boston University Lectures of Medical Science and Bioethics,” though it is unclear how many, or on what topics specifically.

n. She has participated on two radio shows regarding vaccines and had some involvement with three films on vaccines.

o. She described that her work in disaster preparedness led her to a consideration of the efficacy of flu vaccines, and a related concern about conflicts of interest at the Food and Drug Administration and the Center for Disease Control in the United States. After she testified at some length about her concerns about conflict of interest, counsel asked her whether her experience extends to the benefits and risks of vaccinations, and she indicated it did.

p. When asked if she was published in the area of benefits and risks of vaccines, she stated, “Yes. I am, and it depends on what you mean by published.” She then made reference to a book edited by a law professor at NYU called “Vaccine Epidemic” in which she wrote about mandatory flu shots for health care workers. However, she did not indicate what the specific focus of this writing was.

q. She also testified that she “published an article and … analyzed work data on the Gardasil HPV… with Stephanie Seneff, who is a senior researcher at MIT in artificial intelligence, along with Eva Vanamee who is a PhD”. It is unclear what the focus of this article was, why a researcher in artificial intelligence was involved, or what Eva Vanamee’s area of study is.

r. She then testified about another contributor to “that paper” (presumably the article described above) who is a researcher at UBC’s medical school. This UBC researcher “published a paper on the data and how their placebo for the papillomavirus was not actually an inert placebo but a new one tested and given multiple times to and looking at the death rates in both were quite high and that was a small paper.” It is unclear whether this latter paper was one in which Dr. Bark was involved, or whether it dealt with risks and benefits of HPV vaccines, or with the placebo in the HPV vaccine only, or with ethical issues, or something else entirely.

s. She testified she is an expert in “vaccinology,” and confirmed when asked by the arbitrator that it was a term, although she did not define it, and he did not ask her to do so. She confirmed that she had lectured on “vaccinology and talking about conflicts of interest.” She referred to guest lectures she had delivered on medical ethics, and made reference to a recent conference called “The Future of Immunity”, where she spoke with a geneticist and a criminologist and a researcher. It is unclear how this lecture relates to the vaccine-related issues raised at the arbitration or on appeal.

t. She also testified that she gives talks in nonacademic settings. “I get sent to speak on adversinomics, which is another term and that term was coined by Gregory Polland who is a vaccine researcher.” She did not explain what “adversinomics” was.[^3]

u. She gave evidence that her education “in terms of [her] knowledge of the vaccination and the risks” was “truly self taught and taught also in groups.” She explained she was part of a group with other MDs and PhDs that has lawyers and journalists working with them, and they analyze articles, look at the raw data in more detail, and look at the vaccine trials.

v. In cross-examination, Dr. Bark was asked what the NACI is. She was unaware that NACI is the National Advisory Committee on Immunization, a Canadian scientific advisory committee that was created in 1964 and which provides expert and evidence-based recommendations regarding the use of vaccines authorized for use in Canada, national vaccination strategies, and vaccine development research.[^4]

w. In her evidence on the substantive issues, Dr. Bark was unable to confirm whether the vaccine products used in Canada and the United States are similar. She indicated she thought they were identical, but she did not know. Although she did not know whether Canadian vaccine products are the same as American vaccine products, Dr. Bark gave lengthy evidence about the dangers of the various vaccines.

[83] At the outset of Dr. Bark’s examination, respondent’s counsel had indicated he intended to offer Dr. Bark as an expert in “pediatrics and the area of vaccinations.” Following Dr. Bark’s evidence as to her experience, the following exchange occurred:

Arbitrator: Do you have any other questions?

Counsel: I don’t.

Arbitrator: I will accept the witness as an expert. My question is: In discussing your area, you’re focused on the flu and on the HPV, neither of which may not be as significant in play in this case. Do you have expertise in research in other or main vaccinations for children?

Dr. Bark: I do.

Arbitrator: And you have researched those as well?

Dr. Bark: I have.

Arbitrator: Go ahead.

[84] I find that the arbitrator’s decision to qualify Dr. Bark as an expert was clearly unreasonable. The evidence about Dr. Bark’s education and experience was not sufficient to establish Dr. Bark’s qualifications to opine on vaccinations and pediatrics, or the reliability of her evidence on these topics at the threshold stage of the analysis. Even if it were, it was not sufficient to pass the discretionary stage of the analysis.

[85] With respect to Dr. Bark’s qualifications, her involvement with vaccines, including the lectures she had delivered, was focused in large part on ethical questions, not vaccine safety or efficacy. She has undertaken no formal study on vaccines, but states that she was “self-taught”, and taught as part of a group that includes lawyers and journalists, as well as other MDs and PhDs. Her evidence of her work was not specific, and other than her statement that she had researched vaccines other than the flu and the HPV vaccine, there is no evidence of any such work. Dr. Bark is not widely published in the area of vaccines. It does not appear that any of her publications as they relate to vaccines are peer-reviewed. She has not lectured widely on the topic of vaccines. To the extent she has lectured, the nature of the audiences or inviting organizations is unclear.

[86] Moreover, Dr. Bark was unfamiliar with Canadian vaccine products and the NACI, suggesting that even if she has any expertise, her knowledge is not necessarily applicable to Canada.

[87] In the final award, the arbitrator indicates that he accepted Dr. Bark as “an expert on immunization.” “Immunization” is a broad term. What can be said is that Dr. Bark went on to give evidence about the dangers of vaccines and their inefficacy. Nothing in her c.v. or oral evidence supports a conclusion that she has any expertise in those aspects of vaccines. Even proceeding from a “stance of deference” to the arbitrator’s decision to accept Dr. Bark, the evidentiary foundation for the decision to find her to be qualified does not exist. The arbitrator’s conclusion that Dr. Bark was a qualified expert is clearly unreasonable because it is based on a material misapprehension of the evidence about her qualifications. She is, simply put, not a qualified expert on vaccination.

[88] It is not clear from the transcript or the final award whether the arbitrator accepted Dr. Bark as an expert in pediatrics, as counsel proposed she be admitted. With respect to pediatrics, Dr. Bark’s experience is limited to her internship and residency, and her clinical experience in 1991-1992. She has continued to treat children in her practice, which also includes adults. She is not a pediatrician. Her c.v. discloses three lectures that specifically mention children: “The Environment and Pediatric Health”, in 2015, in “Evanston Hospital Pediatric Grand Rounds”; and “Pediatric Ground Rounds” and “Alternatives in Pediatrics”, given in 2004 and 2003, respectively, at Evanston Hospital. Her c.v. does not disclose a single publication related to children. If the arbitrator meant to qualify Dr. Bark as an expert in pediatrics, in my view, that determination was also clearly unreasonable, and based on a misapprehension of the evidence.

[89] There is also the question of the reliability of Dr. Bark’s evidence. Dr. Bark gave evidence to the effect that vaccines are dangerous and ineffective. This opinion is at odds with the scientific consensus on the question. Later in these reasons, I review some of the knowledge about vaccinations, their risks, benefits, and efficacy, as demonstrated through the Canadian Immunization Guide and Immunization 2020, a publication of the Ontario Ministry of Health and Long-Term Care. I also review judicial notice that has been taken of the benefits, risks, and efficacy of vaccinations in Canadian jurisprudence. These sources demonstrate that the scientific consensus around the benefits, safety, and efficacy of vaccines is overwhelming, and that Dr. Bark’s opinion is, as a result, contested science. The evidence of the appellant’s experts also supports the conclusion that Dr. Bark’s opinion is contested science, but it is not necessary to rely on their evidence to reach that conclusion in view of the documents to which I have referred.

[90] Applying the test, described above, from J.-L.J., to determine if contested science is sufficiently reliable to be admitted, I find:

a. Dr. Bark’s theories about the risks and harms of vaccines have been tested, in the sense that the safety of vaccines have been tested. The Canadian Immunization Guide describes the robust regime in place in Canada to assess and monitor the safety and quality of vaccines, including evaluation of vaccines before they are approved, and ongoing monitoring activities that continue while a vaccine is in use. Moreover, the benefits of vaccines are widely accepted, as described more fully in the Canadian Immunization Guide, and in direct contradiction to the theories of Dr. Bark.

b. There is no evidence that Dr. Bark’s academic work has been subject to peer-review. Her publications do not appear in academic journals.

c. Dr. Bark’s theories about the dangers and inefficacy of vaccines have been generally debunked.[^5]

[91] I conclude that Dr. Bark’s evidence of her contested scientific theories is not reliable. Because it is not reliable, it is neither necessary nor relevant. The arbitrator erred in law by failing to consider whether, in view of the contested nature of Dr. Bark’s evidence, her theories were unreliable having regard to the analysis I have just undertaken. If I am wrong, and the arbitrator’s acknowledgment of the contentious nature of the evidence is an indication that he did consider it, I find that the arbitrator made a clearly unreasonable determination when he concluded that the evidence was reliable.

[92] For these reasons, Dr. Bark’s proposed qualification should not have survived the first phase of the test to admit expert evidence. The Mohan criteria are not made out with respect to her evidence, and it was unreasonable for the arbitrator to conclude that they were, for the reasons expressed.

[93] If I am wrong because the first stage of the Mohan analysis is a “low threshold,” as the respondent argues, Dr. Bark’s qualifications and the reliability of her evidence are relevant in the second stage of the analysis. Given the serious concerns about Dr. Bark’s evidence, the cost benefit analysis warrants its exclusion. To the extent the arbitrator found otherwise, the finding was clearly unreasonable, for the reasons I have already described.

[94] The appellant also argues that Dr. Bark was not an impartial witness, because she is an advocate against the use of vaccinations. In my view, this argument is misplaced. While I accept that Dr. Bark has a view about the safety and efficacy of vaccines, she was retained to put forward that view to the arbitrator. Her views about vaccines were the views the respondent sought to bring forth. This is not a case where an expert demonstrates partiality by, for example, making factual assumptions favourable to the party who retained her; rather, here the witness was chosen to advance a viewpoint that the respondent shares and wanted to argue. In my view, bias is not a helpful lens in this instance.

[95] The appellant also argues that Dr. Bark exceeded the bounds of the expertise for which the arbitrator qualified her when she gave evidence about the MTHFR genetic variation, which the respondent testified she has. Dr. Bark testified that the respondent is homozygous for MTHFR, which means the children are either homozygous or heterozygous for MTHFR. She then gave evidence about the risks of vaccinating someone who is homozygous or heterozygous for the MTHFR genetic variation.

[96] Although the respondent argued on appeal that Dr. Bark’s expertise in vaccines meant she was qualified to testify about the impact of genetic variations on the advisability of receiving vaccinations, it is apparent that nowhere in Dr. Bark’s oral evidence, nor on her c.v., does she disclose any study, publication, work experience, or lecturing on the topic of genetic variations. If I am wrong that Dr. Bark should not have been qualified as an expert, I would find, at a minimum, that she exceeded the scope of expertise for which she was qualified when she gave evidence about the impact of the MTHFR genetic variation on the risks and benefits of becoming vaccinated.

Dr. Shiv Chopra

[97] The appellant consented to the admission of Dr. Chopra as an expert at the arbitration. As I noted in the motion for fresh evidence, at 2019 ONSC 7256, at para. 43, he deposed that he felt intimidated, and unable to challenge Dr. Chopra’s qualifications at the arbitration after having failed to successfully challenge Dr. Bark.

[98] As a result of the appellant’s consent, the following exchange occurred at the arbitration:

Arbitrator: Now, I understand that there is no contest that Dr. Chopra will be admitted into evidence as an expert. Is that correct [appellant]?

Appellant: Yes.

Counsel: So we are proposing Dr. Chopra be admitted as an expert in microbiology and immunochemistry and vaccinations. I understand from [the appellant], we had a discussion before we went back on the record and he said he has no objection to Dr. Chopra being admitted as an expert in those areas.

Arbitrator: Correct, [appellant]?

Appellant: Correct.

Counsel: So Dr. Chopra, I have your report in front of me, and I don’t need to qualify you as an expert but I would like for you to tell us a little bit about your educational background, your work background and your familiarity with the vaccine world?

[99] The transcript indicates that at no time did the arbitrator formally qualify Dr. Chopra as an expert. Counsel specifically indicated there was no need to qualify the expert, a position that is plainly wrong. However, there is no indication on the transcript that the arbitrator directed his mind to the gatekeeping role he had to monitor the admission of expert evidence.

[100] In the final award at para. 61, the arbitrator stated:

[The respondent] also called Dr. Shiv Chopra to give evidence. His report and CV were made part of the record. Dr. Chopra spent the majority of his professional life as the Senior Scientific Advisor at Health Canada. His responsibility was to evaluate the human safety and efficacy of antibiotics and vaccines for people, and other products for food production for animals. He has been a fellow of the World Health Organization (WHO) since 1980.

[101] The arbitrator went on to describe some of Dr. Chopra’s evidence, but at no point in the final award did the arbitrator find that Dr. Chopra was qualified as an expert or describe the scope of the expertise for which he was qualified to give evidence. The arbitrator did, however, refer to Dr. Chopra’s expertise (without defining it) as “unassailable” in the award: at para. 77B. The arbitrator relied upon the evidence of Dr. Chopra, which was largely consistent with the evidence of Dr. Bark, with respect to the dangers and inefficacy of vaccinations. The arbitrator specifically indicated he did not rely on Dr. Chopra’s evidence of a vaccination culture perpetuated by “big pharma”, a topic the arbitrator referred to in the transcripts as a conspiracy theory.

[102] In my view, it is an error in principle for the arbitrator to have not taken any effort to consider whether Dr. Chopra ought to have been qualified, or to specify the scope of his expertise. That is the essence of the gatekeeper role.

[103] In the event I am wrong, and it can be implied that the arbitrator was satisfied by Dr. Chopra’s qualifications based on his evidence and c.v., and admitted his evidence for the scope of expertise proposed by counsel, I turn to consider whether such a determination is clearly wrong.

[104] The evidence about Dr. Chopra’s expertise, from his c.v. and his oral evidence, is as follows:

a. Dr. Chopra qualified as a veterinarian in India in 1957. He obtained an M.Sc. and a Ph.D. in microbiology from McGill University in 1962 and 1964 respectively.

b. Dr. Chopra undertook a fellowship in immunochemistry and allergy with the Medical Research Council of Canada in 1965 and a fellowship in vaccines and diagnostics with the World Health Organization (“WHO”) in 1980. He explained that he became a fellow by submitting a project to the WHO which was approved. He explained his fellowship with the WHO as follows: “I’ve travelled all across Europe and in the regulatory standardization of vaccines and related or relevant diagnostics for world standards – international standards.”

c. Dr. Chopra’s professional experience included work as a research officer in vaccine production for animals in the late 1950s in India. In oral evidence, Dr. Chopra explained that his initial employment related to the vaccination of cattle, and he trained in production of vaccines at the Indian Veterinary Researchers Institute.

d. Subsequently, in the late 1960s, Dr. Chopra worked as a director in the biological research division of a pharmaceutical laboratory that was making “antiallergy vaccines” in England.

e. In 1969, he became a senior scientific advisor at the Bureau of Drugs at Health Canada. Between 1987 and 2004, he was a senior scientific advisor with the Bureau of Veterinary Drugs at Health Canada. He stated he was hired by Health Canada in 1969 as a vaccine and antibiotics expert. He worked in that area for approximately 20 years and then “moved to the Bureau of Drugs within Health Canada because [he] happened to be a vet so food safety issues.”

f. His c.v. demonstrates his long-standing involvement with food safety issues, including the safety of foods obtained from genetically modified animals.

g. His c.v. references five books (two of which were in preparation) which Dr. Chopra wrote. These include poetry and fiction. Only one suggests any connection to science and it is a tenuous one; the book is described as “[a] critical literary study of Genesis 1-9, …[drawing parallels between Genesis] and the current concept of evolution with all its implications.”

h. Dr. Chopra has also written a book entitled “Corrupt to the Core: Memoirs of a Health Canada Whistleblower”, published by KOS Publishing Inc., in Toronto in 2009. There is also an Indian edition published in Amritsar in 2009, “for free distribution only.”

i. Dr. Chopra’s other publications and speaking engagements concentrate largely on food safety issues, religion, employment equity, and race relations.

j. Dr. Chopra’s c.v. records involvement on five Health Canada committees, one dealing with genotoxicity, one dealing with food and drug safety, one dealing with bovine growth hormone, and one dealing with food safety. The most recent committee dates from 1998-2003 and dealt with antimicrobial resistance originating from farm animals.

k. Dr. Chopra was a senate committee witness on four occasions in the late 1990’s, most dealing with agriculture and forestry.

l. Dr. Chopra’s c.v. also describes a great deal of community involvement.

m. Dr. Chopra’s c.v. describes the following specifically related to vaccinations: (i) a lecture entitled “Vaccine Safety: Prevention or Corruption?” at the International Conference on Vaccines, Vaccine Safety Foundation, Montego Bay, Jamaica in 2011. It is not clear what the Vaccine Safety Foundation is; (ii) a lecture entitled “Vaccine Safety” from the 4th International Conference National Vaccine Information Center, in Washington in 2010; (iii) a DVD called “Vaccines: Prevention or Curse?” from 2010.

n. After reviewing his professional history, Dr. Chopra went on to give his evidence on the risks and inefficacy of vaccines. Woven in with his evidence on the substantive issues, Dr. Chopra also indicated that, at Health Canada, his title was “Senior Scientific Advisor for the Evaluations of Vaccines and Antibiotics for People”. Leaving aside the unwieldy nature of such a title, I note that nowhere does this title appear on Dr. Chopra’s c.v. Moreover, Dr. Chopra suggested he held this title for 35 years at Health Canada, the entirety of his employment there, while his c.v., and his other oral evidence, suggests that he held different positions at Health Canada over time.

o. In any event, Dr. Chopra did give evidence indicating some professional involvement with vaccination in people, as opposed to animals, while he was at Health Canada. It appears he assisted in the evaluation of vaccines and the review of data submitted by drug companies in support of vaccine efficacy during the approval process, although it is clear there was a reporting structure in place and the final decisions were left to his superiors.

[105] In my view, having regard to the evidence of Dr. Chopra’s qualifications on the record, it was clearly unreasonable for the arbitrator to qualify Dr. Chopra as an expert in vaccines, immunochemistry and microbiology.

[106] First, with respect to vaccines, the evidence discloses Dr. Chopra’s involvement with animal vaccinations many years ago. Dr. Chopra’s oral evidence supports his involvement with vaccine evaluation at Health Canada for people, but it is inconsistent with his c.v. that suggests that from 1987-2004, his title was Senior Scientific Advisor, Bureau of Veterinary Drugs, Health Canada. It is also inconsistent with the significant emphasis in his c.v. on his involvement in food safety issues. Nowhere in the record is that clarified. It is thus unclear to what extent Dr. Chopra was involved in evaluating the efficacy and safety of vaccines for people, and for what time frame. Dr. Chopra’s c.v. and evidence disclose no peer-reviewed publications regarding vaccinations, no ongoing education and only three presentations related to vaccinations for uncertain organizations, or on a DVD for an uncertain audience. His book about vaccines, filed as his expert report on the arbitration, appears to be unpublished.

[107] No evidence was led to establish Dr. Chopra’s expertise in immunochemistry or microbiology following his studies in the mid-1960s. There is no evidence that Dr. Chopra published in these areas, and no specific evidence of his work in these areas following his studies.

[108] On this record, I conclude that, if the arbitrator found Dr. Chopra to be qualified to give expert evidence in the areas in which he was proposed, his conclusion was based on a misapprehension of the evidence. I note specifically that his recitation of Dr. Chopra’s qualifications is in error in two respects: first, he suggests that Dr. Chopra was the Senior Scientific Advisor at Health Canada, when there is no evidence he was anything but a Senior Scientific Advisor. Secondly, he suggests Dr. Chopra had been a fellow at the WHO since 1980, when Dr. Chopra described his fellowship in 1980 as relating to a proposal he submitted that was accepted. Nowhere in the evidence was any ongoing fellowship with the WHO described. Nor did the evidence explain what research proposal he had made in 1980. The evidence as a whole does not support a conclusion that Dr. Chopra is an expert in the areas in which he was proposed. If the arbitrator found Dr. Chopra to be a qualified expert in vaccines, immunochemistry, or microbiology, his conclusion was clearly unreasonable.

[109] Moreover, Dr. Chopra’s reliability is also called into question. As with Dr. Bark, Dr. Chopra’s evidence can only be described as contested science. His evidence was perhaps even more contested than that offered by Dr. Bark. In addition to his evidence that vaccines are generally unsafe and ineffective, Dr. Chopra gave additional evidence including, by way of example only:

a. His evidence that the danger from mumps “is to the boys when adults. As male adults, if they have not had mumps, they can get swelling of the testes and the male can become possible sterile.”

b. His evidence that HIV was caused by vaccines because “Monkey born virus got through once in a vaccine. That is what [a doctor] conveyed on YouTube. So these are not my words. This can be testified and seen.”

c. His evidence described by the arbitrator as “conspiracy theories” involving lobbying and money in the pharmaceutical industry as it relates to vaccines;

d. His evidence, in his report, that the CDC supplied Iraq with dangerous organisms used as weapons of warfare and mass genocide against the Kurdish population, including the West Nile and Dengue fever viruses. He also suggested that the CDC identified as a goal the implementation of massive vaccination programs as a result of threats of biological warfare, and he implies these were “concocted to boost lagging sales of new products on behalf of pharmaceutical companies having little or nothing new to market.”

[110] Again, applying the test from J.-L.J. with respect to contested science, I find:

a. Dr. Chopra’s theories about vaccine risks and inefficacy have been tested in the sense that vaccines have been thoroughly tested as described in the Canadian Immunization Guide. The overwhelming scientific consensus is that vaccines have been proven to be safe and effective. The testing of Dr. Chopra’s theories has thus disproven them.

b. Dr. Chopra’s work on vaccines has not been subjected to peer review or publication in any reputable medical journal. His book appears to be unpublished.

c. Dr. Chopra’s theories have been generally debunked.

[111] The arbitrator made an error in principle in not considering whether the contested science about which Dr. Chopra wished to testify was sufficiently reliable to be admitted as evidence. In my view, Dr. Chopra’s expert evidence cannot be considered reliable, for the same reasons that Dr. Bark’s evidence was not reliable. To the extent the arbitrator concluded that Dr. Chopra’s evidence was reliable, his conclusion was clearly unreasonable. Dr. Chopra’s evidence does not meet the Mohan criteria to be accepted at the first stage of the analysis. If I am wrong about that, I find that it was clearly unreasonable to permit Dr. Chopra to give expert evidence because, in view of the reliability concerns and Dr. Chopra’s lack of qualifications, the benefit of his evidence was outweighed by the risk of admitting it. He should thus have been excluded as a witness at the second stage of the analysis.

[112] For these reasons, I conclude that the arbitrator erred in permitting Dr. Chopra to give expert evidence at the arbitration.

[113] However, there is another reason to exclude his evidence. Dr. Chopra’s c.v. indicates he published “Corrupt to the Core: Memoirs of a Health Canada Whistleblower.” Dr. Chopra made mention of this book once in his oral evidence, stating that many examples of pressure to approve vaccinations are detailed in his book. Dr. Chopra was not asked about the book, or why he wrote it.

[114] In the fresh evidence that I admitted, the appellant deposes that Dr. Chopra’s employment from Health Canada was terminated in 2004, thirteen years before the arbitration. This is information he gleaned from publicly reported decisions. Dr. Chopra commenced at least 28 legal proceedings from 1999 to 2017 against different government entities. In 2017, the Federal Court of Appeal determined that his termination was reasonable: Chopra v. Canada (Attorney General), 2017 FCA 176. No evidence about Dr. Chopra’s termination was led at the arbitration.

[115] In 2008, in Chopra v. Health Canada, 2008 CHRT 39, Adjudicator Deschamps described Dr. Chopra as being “angry and bitter against Health Canada”, and noted that Dr. Chopra felt that he had been treated unfairly, discriminated against, retaliated against and harassed. “He feels that there is some form of conspiracy that exists against him at Health Canada and that Health Canada orchestrated certain events in order to make him look bad.” The adjudicator found that Dr. Chopra “made sweeping statements that affect his credibility or, at least, his objectivity or sense of proportion.”

[116] In view of this litigation history against Health Canada, and the recurrent conspiracy theory theme in Dr. Chopra’s views about Health Canada, there is reason to conclude that Dr. Chopra’s evidence would not be impartial. This, in turn, further calls into question its reliability. It offers yet another reason why Dr. Chopra should not have been permitted to give expert evidence.

[117] The appellant also argued that Dr. Chopra was not impartial based on his advocacy against vaccines. I do not accept this argument with respect to Dr. Chopra, for the same reason I did not accept it with respect to Dr. Bark. The concerns about Dr Chopra’s bias relate to his personal history with Health Canada, described above.

[118] I thus conclude that the arbitrator erred in admitting Dr. Chopra’s evidence based on the evidence that was before him at the arbitration. The fresh evidence provides wholly independent grounds to reach that conclusion.

[119] Finally, if I am wrong and Dr. Chopra was properly qualified by the arbitrator as an expert, I agree with the appellant that Dr. Chopra exceeded the bounds of his expertise when he gave evidence about the approvals process for vaccines. Dr. Chopra’s evidence was that he evaluated data provided by drug manufacturers as part of the approval process for vaccines at Health Canada. There is no evidence supporting his expertise in the approval process generally, or any evidence suggesting he had developed expertise in the approvals process through study or any other position.

Should the evidence from the appellant’s experts be excluded at this stage?

[120] Although the admissibility of the appellant’s expert evidence was addressed during the fresh evidence motion, for the first time at the appeal, the respondent argues that the appellant’s experts’ evidence should be excluded, because (i) their affidavits do not comply with Family Law Rules 20.1 and 20.2, and (ii) they are not impartial.

[121] The appellant argues that the time to make these objections was at the fresh evidence motion. The respondent argues that the partiality of the experts only became apparent on their cross-examinations. He relies on evidence the experts gave to the effect that they support vaccination as a matter of policy.

[122] I note the reasons of the Court of Appeal in Bruff-Murphy, that the norm is, and should be, that the issue of admissibility of expert evidence is decided at the time the expert evidence is proffered. However, having qualified the expert, the trial judge must continue to exercise her gatekeeper function, and if a risk arises to trial fairness, the trial judge must take action: at paras. 60-63.

[123] Thus, while it would have been preferable to make these objections at the fresh evidence motion, I accept that if concerns about the appellant’s experts’ partiality come to light following the motion, I must consider whether it is necessary to act to exclude their evidence.

[124] Although the respondent did not specifically identify how the experts’ evidence does not comply with the Family Law Rules, r. 20.1 requires that the expert provide opinion evidence that is fair, objective and non-partisan. Given that the respondent has also objected to the appellants’ experts on the basis that their evidence is not impartial, I assume that is the objection that she makes under r. 20.1.[^6]

[125] As I noted in my discussion of the gatekeeping function regarding the respondent’s experts, in my view, the reliance on impartiality in this case is misplaced. With the exception of the impact of the respondent’s genetic variation on the advisability of the children becoming vaccinated, the issue between the proposed experts in this case has always been the safety and efficacy of vaccines. The arbitrator identified that as a key issue raised by the respondent. One would hardly expect either party’s proposed experts to take a different viewpoint on the big picture issues from that of party advancing them as experts, when the proposed experts were specifically asked to address the safety and efficacy of vaccines from each party’s perspective. I thus see no reason to exclude the appellant’s experts’ evidence at this stage on the basis that their evidence is partial, or that the requirements of r. 20.1 of the Family Law Rules are not met.

[126] Rule 20.2 of the Family Law Rules prescribes certain requirements for an expert report. The respondent alleges that not all these requirements are present in the appellant’s experts’ affidavits. In oral argument, she stated that none of the appellant’s experts reviewed the children’s medical records or saw the children,[^7] that none reviewed the arbitrator’s award or the respondent’s experts’ reports, and that none recommended a course of treatment regarding vaccinating the children.

[127] From this list of objections, I assume the respondent invokes the requirements in r. 20.2 that an expert report must contain:

a. The expert’s reasons for his or her opinion, including,

i. A description of the factual assumptions on which the opinion is based;

ii. A description of any research or test conducted by or for the expert, or of any independent observations made by the expert that led him or her to form the opinion [and further requirements for each test conducted].

[128] In my view, this argument is founded on an overly-technical reading of r. 20.2. In this case, the experts’ opinions do not require an enumeration of factual assumptions, and did not require the performance of any research or test. The experts were engaged to give evidence about the safety and efficacy of vaccines generally, and have not opined on whether vaccines are recommended for the parties’ children, with the limited exception that each of them gave some evidence about the MTHFR genetic variation and vaccination generally, and one expert, Dr. Sondheimer, gave more detailed evidence about it.

[129] I decline to find that the expert evidence is inadmissible because it does not comply with requirements that do not apply to it.

[130] I also note the respondent’s argument that the appellant’s experts’ affidavits are not responsive to the respondent’s experts’ evidence, and so should not be permitted. This argument rests on the experts’ evidence that they did not read the reports of Dr. Chopra or Dr. Bark.

[131] Given that I have excluded the evidence of Dr. Chopra and Dr. Bark, this argument is moot. Moreover, the appellant’s experts’ evidence addresses arguments raised by the respondent with respect to the safety and efficacy of vaccines, and whether her MTHFR genetic variation poses additional vaccination risk. I already found the evidence to be relevant at the fresh evidence motion, and it remains so, even after the exclusion of the respondent’s experts’ evidence.

[132] If I am wrong to exclude the respondent’s experts’ evidence, in my view, the appellant’s experts’ evidence is also responsive to the evidence of Dr. Chopra and Dr. Bark, because it addresses the evidence that they gave about the safety and efficacy of vaccines, and in the case of Dr. Bark, the effect of the MTHFR genetic variation on vaccine recommendations. While perhaps unusual, it is not necessary for the appellant’s experts to have read the reports to understand the issue of what they must respond to, and to provide evidence on the substantive issues that were raised in the respondent’s experts’ evidence.

[133] Accordingly, I decline to exclude the appellant’s experts’ evidence.

Public Documents

[134] The appellant argues that the arbitrator erred by failing to admit the public records that he sought to introduce into evidence for proof of the truth of their contents. At the arbitration, the appellant introduced several documents, but on appeal, focuses on two: the Canadian Immunization Guide (“CIG”) and Immunization 2020: Modernizing Ontario’s Publicly Funded Immunization Program (“Immunization 2020”).

[135] The respondent argues that the arbitrator appropriately considered these documents, among others, as proof that all levels of government support vaccination. The respondent argues that the documents at issue are not public documents and are not admissible for proof of the truth of their contents.

[136] I accept that the arbitrator limited his use of these documents to prove that the policy of all levels of government is to support vaccination, and that he did not admit the documents for proof of the truth of their contents. In his award, the arbitrator stated, at paras. 35-36:

[The appellant’s] main argument is that all levels of government – municipal, provincial, and federal [sic] support vaccination. He introduced several documents, pamphlets, and the like, produced by all level [sic] of government on this issue.

I accept as a general statement that all levels of government support vaccinations. That is not in dispute. Exhibit 19, for example, is a large bundle of documents entitled Canadian Immunization Guide, produced by the Government of Canada. It begins with the general statement, “the Canadian immunization guide is a comprehensive resource on immunization. It was developed based on recommendations and statements of expert advisory committees.” It goes on to say, “vaccines are a cornerstone of public health and their use has significantly contributed to the prevention and control of infection [sic] diseases in Canada and internationally.”

[137] The arbitrator did not consider the content of the documents beyond this statement. When the arbitrator described the evidence led by Dr. Bark and Dr. Chopra, he did not address the ways in which their evidence departed from the content of the CIG or Immunization 2020. Rather, in describing the appellant’s evidence on the safety and efficacy of vaccines, he only noted that the appellant “did not call any expert in reply.”

[138] The transcript supports the conclusion that the arbitrator did not admit the documents for proof of the truth of their contents. For example, when the appellant was introducing government documents, and documents in the public domain to support his arguments about the safety and efficacy of vaccines, the arbitrator said:

… In general, all of these documents you cannot introduce as being factually correct unless the author is here, and then we have other rules of evidence that deal with that.

You can introduce documents that might be in the public domain, documents that are published by the government of Canada or that are on the government of Canada website, but you cannot say that the facts and those documents are necessarily correct without the author being here to give evidence.

[139] The arbitrator proceeded to explain to the appellant that a document may be admitted to prove the fact that the statement was made, but not to prove the truth of the statement. He told the appellant that he could give evidence as to what his personal reading or research had disclosed, and could testify as to his beliefs and the source of his beliefs.

[140] When the appellant sought to introduce the CIG into evidence, the following exchange occurred:

Arbitrator: … I can shorten this for you by saying I accept that, as I said earlier, municipal, provincial and federal governments support vaccination. I think that that is, as a general statement, a correct statement.

Appellant: but can I give some statistic on that polio, on the disease, which is given by the Government of Canada?

Arbitrator: you can give the statistics as set out in this document, but I cannot accept without testing whether those statistics are right. Just because they say it doesn’t mean it’s right.

Appellant: Okay.

Arbitrator: but I will accept what’s in this document – –

Appellant: so you cannot take them as an exhibit?

Arbitrator: I can take it as an exhibit but I cannot – – I’m accepting that this is what the Government of Canada has said period, full stop.

Appellant: okay.

[141] The appellant then referred to certain sections of the CIG to provide information about the risks of polio, rubella, and tetanus. As I understand his evidence, he wanted to rely on the CIG to demonstrate the risks of disease, reasons why people should get vaccines, and risks related to vaccines.

[142] When the arbitration resumed in September 2017, after the two-and-a-half month break, the appellant was granted permission to give some additional evidence in-chief. He sought to introduce Immunization 2020 into evidence. At this point in the arbitration, he specifically invoked the statutory provision for the public documents exception to the hearsay rule. He said:

I wanted to present some new brochures, and I know last time at the hearing I was presenting documents from the internet and it was not accepted as evidence for a few reasons but I would like the brochures to be entered as evidence and the reason is that the copy of the Evidence Act, 25.

[143] Respondent’s counsel objected, arguing that these new documents fell into the same category as some of those that the appellant had produced from the internet during the first two days of the arbitration in June 2017. He said, “they are what they are but, in my submission, you cannot accept them for the truth of their contents. The fact that they have been published by Health Canada is acknowledged.”

[144] The appellant was unable to identify whether the section he was relying on was from the Canada Evidence Act, R.S.C. 1985, c. C-5, or the Ontario Evidence Act, R.S.O. 1990, c. E.23, but he summarized his argument by saying “basically it says if there is a signed documentation from Ontario or any documentation can be accepted as evidence. That is the purpose of this, and that is why I came back with these brochures because all of those have the Queen’s printer as signature and that can be accepted as evidence.”

[145] A discussion followed as to whether the documents were printed by or under the authority of the government. The arbitrator made no explicit ruling on whether the documents met the criteria for admission under s. 25 of the Ontario Evidence Act, but he stated that he would admit the documents, including Immunization 2020, but “not necessarily for the truth of their contents.”

[146] Thus, although the appellant specifically invoked the public documents exception to the hearsay rule, it does not appear from the transcript that the arbitrator accepted that the documents could be admitted for proof of the truth of their contents. Moreover, to the extent the arbitrator deferred the issue of the purpose for which the documents could be admitted, he did not address the public documents exception argument in the final award. Rather, by using the documents only to accept that all levels of government support vaccinations, the arbitrator used the documents as proof of the fact that the statements in the documents were made by the different levels of government, rather than as proof of the truth of the contents of the documents.

[147] Section 25 of the Ontario Evidence Act states:

Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of the Parliament of the United Kingdom, or the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession within the Queen’s dominions, shall be admitted in evidence to prove the contents thereof.

[148] In Levac v. James, 2016 ONSC 7727, at paras. 112-113, rev’d on other grounds, 2017 ONCA 842, the court described the rationale behind the public documents exception to the hearsay rule as follows:

Under the public documents exception, the records and reports of public officials are admissible for the truth of their contents because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove the records and reports: R. v. P.(A.), 1996 871 (ON CA), [1996] O.J. No. 2986 (C.A.). In R. v. P. (A.), supra, Justice Laskin stated at para. 14:

At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is "founded upon the belief that public officers will perform their tasks properly, carefully, and honestly." Sopinka et al. The Law of Evidence in Canada, 2nd ed. p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. Rand, J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 1953 81 (SCC), 107 C.C.C. 93 at 95 (S.C.C.):

The grounds for this exception to the hearsay rule are the convenience of the ordinary modes of proof and, the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy.

As noted by Justice Laskin, the rationale for the exception to the rule against hearsay was explained by Justice Rand in R. v. Finestone, 1953 81 (SCC), [1953] 2 S.C.R. 107, where Justice Rand adopted what was said centuries earlier in the English case of R v. Aickles (1785), 1 Leach Cr. L. 390 at p. 392:

The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require.

[149] In Levac, the court, relying on Laskin J.A.’s decision in R. v. P.(A.), at para. 15, held that for a document to be admissible under the public documents exception to the hearsay rule, four criteria must be satisfied:

a. the document must have been made by a public official, that is a person on whom the duty has been imposed by the public;

b. the public official must have made the document in the discharge of a public duty or function;

c. the document must have been made with the intention that it serve as a permanent record; and

d. the document must be available for public inspection.

[150] An adjudicative function is not a prerequisite for a document to be a public document. A public document means a document that is made for the purpose of the public making use of it, and being able to refer to it: Levac, at para. 117; R. v. P.(A.), at para. 15.

[151] In Levac, at para. 117, the court made reference to a 1984 text in which three basic categories of public documents were listed – that is, (i) entries made in public registers or file by spublic officials, (ii) the results of official investigations or inquiries carried out by public officials, and (iii) certificates prepared by public officials.

[152] The respondent argues that the CIG and Immunization 2020 do not fall within the three basic categories of public documents identified in the 1984 text. If, in doing so, she intends to suggest that public documents are limited to these three categories, I reject that argument. The jurisprudence has identified four criteria to apply to recognize a document that can be admitted for proof of the truth of its contents, because it is sufficiently reliable under the public documents exception. In Levac, at para. 122, the court described those criteria as “surrogates for the court being satisfied that the information provided by the public officials in pursuit of their public duties is reliable and trustworthy information that may be fairly admitted for the truth of its contents.” Even where the criteria are satisfied, if the court is not satisfied about the reliability of the public document, or if the court concludes that the admission of the evidence would be unfair, the court maintains a residual discretion to nonetheless refuse to admit the document: Levac, at para. 122.

[153] Consistent with the principled approach to hearsay, the focus is on the reliability of the document, not whether the document falls into a rigid category. (The necessity of the admission of public documents is obvious, and was identified by Laskin J.A. in R. v. P.(A.), when he referred to the inconvenience of requiring public officials to be present in court to prove the records and reports of public officials.)

[154] The idea that a document must fall within a certain category of document to be considered a public document would, in effect, add a fifth criterion to the public documents exception to the hearsay rule – an addition not supported by the jurisprudence.

[155] Further support for the rejection of rigid categories to the public documents exception is found in D.R.B v. D.A.T., 2019 BCPC 334, at paras. 30-31, where the court appears to rely on the public documents exception to admit documents it described as “UN Foundations Measles Initiative, excerpts from World Health Organization Measles Key Facts, excerpts from Health Link BC, and excerpts from the Centre for Disease Control, BC Centre.” The court held that these were “reliable resources upon which we as a community rely in order to make important medical decisions not only for ourselves but for our community as a whole.”

[156] In this context, I turn to the question on this appeal: did the arbitrator err in failing to admit the CIG and Immunization 2020 for proof of the truth of their contents under the public documents exception to the hearsay rule?

[157] I note that, in addressing this issue, no one has argued that the arbitrator erred by failing to provide reasons, or by failing to provide sufficient reasons, for not admitting these documents under s. 25 of the Ontario Evidence Act for proof of the truth of their contents. As a result, I do not consider whether the arbitrator erred in law by failing to provide sufficient reasons for not admitting the documents under the public documents exception.

[158] The alleged error here relates to the arbitrator’s determination of the admissibility of evidence or, more accurately, the arbitrator’s implicit determination not to admit the documents for proof of the truth of their contents. Although the respondent argued in oral argument that the determination whether to admit the documents for proof the truth of their contents was reviewable on a palpable and overriding error standard, she provided no law in support of this submission. In R. v. Bridgman, 2017 ONCA 940, at paras. 37-38, the Court of Appeal held that “a correctness standard applies to the ‘ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge.’”

[159] Unfortunately, the arbitrator did not find facts relative to the criteria the jurisprudence sets out to recognize a document as a public document, and did not explain why the documents were not public documents. As in Bruff-Murphy, at para. 41, there is no decision to which I can defer, and in any event, the question of the application of the criteria relevant to the admissibility of the public documents is reviewable on a correctness standard. I will thus consider whether the CIG and Immunization 2020 are public documents, that is whether they are “other public documents purporting to be printed by or under the authority of the government or of any legislative body of any state, province… within the Queen’s dominions.”

[160] Turning first to the CIG, I note that the document is a government document, available on the Government of Canada website, and thus printed under the authority of the government.

[161] The CIG is identified as being from the Public Health Agency of Canada (“PHAC”). The PHAC is identified as a key stakeholder in the federal government and is described as the federal agency responsible for immunization.

[162] The CIG indicates that “to help provide leadership, advice and support for timely vaccine recommendations and sustainable immunization programs, the [PHAC] is supported by two scientific advisory committees whose members are recognized experts in multiple fields including pediatrics, infectious diseases, immunology, medical microbiology, internal medicine and public health.”

[163] It identifies one of the two scientific advisory committees as the NACI, which “provides expert and evidence-based recommendations regarding the use of vaccines authorized for use in Canada, advises on the need for national vaccination strategies, and makes recommendations for vaccine development research.” The document indicates that the NACI is also responsible for producing the CIG.

[164] The CIG identifies the other scientific advisory committee as the Committee to Advise on Tropical Medicine and Travel (CATMAT), which makes “evidence-based recommendations relating to tropical infectious diseases and health risks associated with international travel,” among other things.

[165] The CIG describes itself as a “trusted, reader-friendly summary of recommendations on immunization by the NACI since 1979 when it was first published.” The CIG addresses advances in vaccines and immunization practices, and explains that it is written for healthcare providers and public health practitioners, policy makers, program planners and the general public with knowledge and interest in immunization and vaccines.

[166] The CIG indicates that it is based on the recommendations, statements and updates by the NACI and the CATMAT. It also indicates that the PHAC approves any new statement or statement update created by the NACI before the corresponding chapter in the CIG is updated. Thus, the PHAC retains supervision over the CIG.

[167] The NACI has been developing recommendations for the use of vaccines for Canadians since the 1960s. The PHAC regularly publishes advice from the NACI and the CATMAT as statements about new vaccines. As new evidence and indications emerge, it updates recommendations for the use of vaccines that are available in Canada.

[168] The CIG is divided into five parts. The first part provides an overview of key immunization information, including key scientific principles of immunology and vaccinology. Part two addresses vaccine safety, including vaccine safety monitoring in Canada, and product-specific contraindications. The third part provides recommendations for the vaccination of specific populations, such as persons with inadequate immunization records, immunocompromised persons, and others. Part four addresses information about active vaccines, including the recommendations for use. Part five addresses passive immunizing agents.

[169] Applying the criteria for admissibility of a document as a public record to the CIG, I conclude as follows:

a. the CIG was made by a public official, that is a person on whom a duty has been imposed by the public. In this case, the public official is the PHAC. I place no importance on the fact that the PHAC’s duties are discharged by a group of people rather than by a single individual. Given the breadth of the task of supervising and approving changes to the CIG, it would be overly technical to insist one single person undertake the work in order for the CIG to qualify under the public documents exception to the hearsay rule. To take such a position would not recognize the increasingly complex governmental functions of today – a recognition that was valid when Rand J. made the same observation in 1953 in Finestone, at p. 95, and which has only become truer as the years have passed.

b. The PHAC is charged with the public duty to be the federal agency responsible for immunization.

c. In the discharge of its duty, the PHAC works with the NACI and the CATMAT, and ultimately approves any updates to the CIG. Thus, the CIG is a document made in the discharge of the PHAC’s public duty or function.

d. I also conclude that the CIG was created with the intention that it serve as a permanent record. Although it is updated as new information is learned, it is intended to be a reliable, trusted, and reader-friendly summary of immunization recommendations for healthcare providers and public health practitioners, policy makers, program planners and the general public. It is been in existence since 1979. I thus conclude that it is intended to be a trustworthy and permanent record of the best available scientific information regarding vaccines and immunizations as that information becomes available.

e. If I am wrong that the guide was made with the intention that it serve as a permanent record, I would find where a document is intended to provide guidance on current advice and best practices, this third criterion will be satisfied where the document has been made with the intention that it serve as a trustworthy and reliable record. Interpreting the third criteria in this manner is consistent with the purpose of the public documents exception, founded upon the belief that records are reliable because public officers will perform their tasks properly, carefully and honestly. In other words, the law should presume that public officers charged with providing the best current advice on a subject will approach the discharge of their duty with such accuracy and fidelity that the court can have faith that the public record of the best current advice in fact discloses the best current advice.

f. The document is easily obtainable on the government of Canada’s website and as such, it is available for public inspection.

[170] Fundamentally, the CIG is a “document that is made for the purpose of the public making use of it, and being able to refer to it”: Levac, at para. 117; R. v. P.(A.), at para. 15. I conclude that the CIG is admissible for proof of the truth of its contents under the public documents exception to the hearsay rule, and it was an error of law for the arbitrator not to admit it for that purpose.

[171] I turn next to Immunization 2020. This document is a publication of the Ministry of Health and Long-Term Care. Immunization 2020 describes itself as a “first of its kind roadmap for Ontario that will help our governments and our partners achieve a high performing, integrated immunization system.” It describes its development to be an example of the benefits of collaboration, noting that it reflects the findings of the Advisory Committee for Ontario’s Immunization System Review’s 2014 report, and recommendations made by the Auditor General in its 2014 annual report. It explains that it builds on past consultations across Ontario’s immunization system including interviews and surveys with many different stakeholders. It states that it supports “Patients First: Action Plan for Healthcare Ontario’s Plan for Changing and Improving Ontario’s Health System.” It describes itself as a guide for decision-making, program planning and partnerships. It sets out the components of its strategic framework and identifies twenty actions through which Ontario is committed to building a “stronger, more innovative immunization system to support better health for all Ontarians.”

[172] Applying the public documents criteria to Immunization 2020, I note:

a. the document was prepared and published by the Ministry of Health and Long-Term care, and as such, is published under the authority of the provincial government.

b. The Ministry of Health and Long-Term Care, together with its partners and stakeholders, is charged with the public duty of achieving a high performing, integrated immunization system supporting better health for all Ontarians. Again, I place no importance on the fact that the duty is discharged by a group of people rather than a single person, for the reasons I earlier expressed;

c. Immunization 2020 has been made in the discharge of the Ministry’s duty, in that the guide is a “first of its kind roadmap for Ontario” to help achieve a “high-performing, integrated immunization system.”

d. Immunization 2020 is a permanent record describing the framework and action points supporting the Ontario government’s vaccine policy and goals.

e. Immunization 2020 is a public document, available for inspection. It explains how to obtain copies of the report, which can be done simply by telephoning the Ministry of Health and Long-term Care.

[173] Immunization 2020 communicates the government’s strategic framework and can thus be described as “a document that is made for the purpose of the public making use of it, and being able to refer to it”: Levac, at para. 117; R. v. P.(A.), at para. 15. I conclude that Immunization 2020 is a public document, admissible for proof of the truth of its contents. It was an error of law for the arbitrator not to admit it for that purpose.

Judicial Notice

[174] The intervener, in her submissions, argued that, when adjudicating a case involving immunization, courts and other adjudicators can and should take judicial notice of certain facts related to vaccines in Ontario and Canada.

[175] The intervener argues that an adjudicator may properly take judicial notice of facts that are either (i) so notorious or generally accepted as not to be the subject of debate among reasonable persons, or (ii) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[176] The intervener notes that the rationale for taking judicial notice closely mirrors the rationale behind the public documents exception to the hearsay rule. The intervener argues that both judicial notice and the public documents exception to the hearsay rule make efficient use of judicial and other resources by taking notice of facts that can be immediately and accurately demonstrated by reference to a source of indisputable accuracy. Employing these methods of proof avoids the need to call witnesses and other evidence to prove them, expediting the court’s process, and enhancing access to justice for individual litigants.

[177] The intervener notes that the closer a fact approaches the dispositive issue in a case, the more a court ought to insist on strict compliance with the criteria for judicial recognition: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 61. Conversely, the requirements for judicial notice are applied less stringently when considering whether to take judicial notice of non-adjudicative facts, such as social facts or legislative facts: Spence, at para. 63.

[178] The intervener argues that in Ontario, judicial notice can and should be taken of the following facts:

a. Ontario has a public policy of promoting, recommending and supporting vaccination against vaccine-preventable disease, including and especially childhood diseases;

b. vaccination against vaccine-preventable diseases is universally promoted, recommended and supported by governments across Canada, including and especially against childhood diseases;

c. Canada has a robust safety regime that regulates the safety and quality of vaccines both before and after their introduction into the market.

[179] The respondent disagrees with the intervener, arguing that, once a court takes judicial notice of a fact, contradictory evidence is typically not permitted. She argues that taking judicial notice of the safety and efficacy of vaccines in Canada would undermine the freedoms guaranteed to her by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, to disagree with the government.

[180] In my view, the respondent’s argument is misdirected. The underlying dispute in this instance is between two parents who disagree about whether to vaccinate their children. The Charter does not apply; no government conduct is at issue.

[181] Just before the hearing of this appeal, Finlayson J. of the Ontario Court of Justice released a decision in B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438, dealing with vaccination and, in particular, judicial notice of facts relevant to vaccination. I provided a copy to the parties and the intervener in advance of the appeal and asked them to make any submissions they felt were appropriate having regard to Finlayson J.’s reasons.

[182] In B.C.J.B., the parents disagreed about whether to vaccinate their children. The father relied on Immunization 2020, along with various printouts from the Government of Canada website, including the CIG, in support of his argument to vaccinate the children.

[183] Justice Finlayson was asked to take judicial notice of both adjudicative facts – namely that vaccines are safe and beneficial, and of legislative facts – namely government policy as reflected in the CIG and Immunization 2020. Justice Finlayson undertook a lengthy analysis of the principles relating to judicial notice. In particular, he noted that scientific facts can become so well-known generally that the court can judicially note them without expert evidence: at para. 155. He also noted that there may be precedential value, where a certain fact has been judicially noted by a judge in a previous matter: at para. 156.

[184] Justice Finlayson reviewed the content of the government documents relied upon by the father, and undertook a lengthy review of cases regarding vaccination in Canada. In particular, he reviewed the use Canadian courts have made of judicial notice in the context of facts relating to vaccinations. Having done this analysis, he concluded, at paras. 186-190, with respect to adjudicative facts:

In summary, I am prepared to take notice of the following adjudicative facts. Ontario’s publicly funded vaccines are safe and effective at preventing vaccine preventable diseases. Their widespread use has led to severe reductions or eradication of incidents of these diseases in our society.

I take judicial notice of the harm to a child, flowing from contracting a vaccine preventable disease, may even include death.

I find these facts to be so notorious as not to be the subject of dispute among reasonable persons. They are also capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.

I appreciate that I am taking judicial notice of scientific facts. In so doing, I have had resort to the vaccine cases. I note that the cases have included medical evidence from family doctors, pediatricians, immunologists, and pediatric infectious diseases specialists. But I do not rely on any particular statement made by an expert in any particular case to take judicial notice. Rather the case law, read as a whole, reflects the reality there is no debate in the medical community about the facts about which I am prepared to take judicial notice. So do the documents from the governments of Ontario and Canada that the father supplied to the Court.

I find I am unable to take judicial notice that this particular child has no health conditions that contraindicate vaccinations. Based on my review of the case law, what will be required by way of evidence on this point for most children, will normally not be onerous. In some cases, even the failure of the parent opposing the vaccines to place any admissible evidence on this point before the Court, was dispositive. But out of an abundance of caution, in most cases something like a simple letter from a family doctor will normally suffice.

[185] With respect to legislative facts, he concluded, at paras. 191-193:

Regarding legislative facts, I am prepared to take judicial notice of the policy reflected in the “Immunization 2020” document and the documents from the government of Canada. Canada and Ontario have a coordinated immunization strategy in the interest of public safety. These include sophisticated delivery systems, oversight and vaccine safety monitoring and compliance measures. The Immunization of School Pupils Act is part of Ontario’s public health strategy.

These documents reveal that government policy, at all levels, supports the widespread use [of] vaccination to promote individual health and public safety. I note that various vaccine decisions have taken judicial notice of government policy. While these facts are not an “adjudicative facts”, they inform how the Court should apply the best interests test in this particular case. Government policy supports an application of the best interests test that encourages good science-based health decision-making for children, when it comes to vaccines.

Although these facts about which I am prepared to take judicial notice are very informative, none of them are dispositive to the precise issue before the Court. Nevertheless, even on the strictest approach to judicial notice, I believe that the facts are within the purview of the Court to judicially notice.

[186] I agree with Finlayson J.’s thorough analysis. The facts of which he determined a court may take judicial notice encompass, and go farther than, those urged by the intervener. I agree with the intervener that both the public documents exception and taking judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules. This is so because these evidentiary rules allow a court to deal with questions about vaccinations without putting litigants to the time and expense of proving the safety and efficacy of vaccines in each individual case where the issue may arise, enabling the parties and the court to focus their resources on what must be the heart of the question at issue: whether it is in the best interest of the child who is the focus of the proceeding to be vaccinated.

[187] I agree with Finlayson J. that, at first instance, a court cannot take judicial notice that any particular child has no health conditions that contraindicate vaccinations, and that what will be required for most children by way of evidence will not be onerous. The intervener acknowledges that facts unique to a particular child, such as medical contraindications, will dictate the child’s best interests.

[188] But this is not a case at first instance. The question is not whether the arbitrator could have taken judicial notice of the facts urged by the intervener, or the facts supported by the decision of Finlayson J. The question is whether the arbitrator erred in failing to take judicial notice of these facts, in circumstances where it does not appear he was ever asked to take judicial notice of them.

[189] A decision not to take judicial notice is a discretionary decision: Michelle Fuerst, Anne Sanderson & Stephen Firestone, Ontario Courtroom Procedure, 5th ed. (LexisNexis, 2020), Ch. 43. H. 7. Effect of Taking Judicial Notice of a Fact, citing R. v. Zundel (1990), 1990 11025 (ON CA), 53 C.C.C. (3d) 161 at p. 167 (C.A.); L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841, 149 O.R. (3d) 18. In the Court of Appeal for Ontario’s decision in Zundel, at p. 167, the court held:

In Zundel (No. 1), at pp. 150-51, this court determined that judicial notice may be taken of an historical fact. The court, however, emphasized that judges have a wide discretion as to the matters of which they will take judicial notice, and they may take judicial notice of matters which they cannot be required to notice. We regard the question of whether a trial judge has the power to take judicial notice of an historical fact as settled. And so, the issue in this case is whether or not the trial judge exercised his discretion judicially in taking judicial notice of the Holocaust as he did.

[190] It is rare, if ever, that a trial judge is required to judicially notice a fact: R. v. Keegstra, [1992] A.J. No. 294 (Q.B.).

[191] In my view, while it would have been open to the arbitrator to take judicial notice of the facts identified by the intervener, and by Finlayson J. in B.C.J.B., it is not reversible error to have failed to take judicial notice of those facts, particularly when he was never asked to do so.

Did the Arbitrator err by failing to treat the appellant, as a self-represented litigant, fairly?

[192] The appellant, who was self-represented at the arbitration, argues that the arbitrator erred in law by failing to treat the parties equally and fairly, and by failing to give the appellant the opportunity to present his case, and respond to the respondent’s case, as required by s. 19 of the Arbitration Act 1991, S.O. 1991, c. 17.

[193] The appellant argues that trial judges have special duties to self-represented litigants, including attempting to accommodate their unfamiliarity with the trial process in order to permit them to present their case: Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 34.

[194] The appellant relies on the Statement of Principles on Self-represented Litigants and Accused Persons (2006), adopted by the Canadian Judicial Council in September 2006 (“Statement”), and in particular makes note of the following principles:

a. Judges and administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons;

b. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case;

c. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may (i) explain the process; (ii) inquire whether both parties understand the process and the procedure; (iii) make referrals to agencies able to assist the litigant in the preparation of the case; (iv) provide information about the law and evidentiary requirements; (v) modify the traditional order of taking evidence; and (vi) question witnesses.

[195] The Statement also provides that judges have a responsibility to inquire whether self-represented persons are aware of their procedural options and to direct them to available information if they are not, that judges may explain the relevant law in the case and its implications before self-represented persons make critical choices, and that judges should ensure the procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[196] The appellant argues that the statement applies equally to arbitrators as it does to judges, as both arbitrators and parties to an arbitration are participants in the justice system. The appellant argues that the arbitrator failed to comply with the Statement in the following ways:

a. the appellant was denied the opportunity to serve and file the letter and possible oral evidence from Dr. Rosenthal when the arbitration resumed in September 2017;

b. the arbitrator prevented Dr. Pham from giving evidence in cross-examination as to whether she recommended vaccines for the children. The appellant notes that subsequently, during his cross-examination, he was prevented from stating that Dr. Pham told them she was in favour of vaccinations on the basis of hearsay and that the question was not put to Dr. Pham.

c. The arbitrator did not explain the evidentiary rules respecting the public government documents tendered by the appellant.

[197] The respondent argues that the arbitrator fully complied with his duty to treat the parties with equality and fairness as well as any obligations owed to the appellant as a self-represented party under the Statement. The respondent argues that the transcript confirms that the arbitrator explained the process to the appellant, repeatedly inquired whether the appellant understood the process, provided information about the law and evidentiary requirements relevant to the appellant’s case, modified the traditional order of taking evidence, and questioned the witnesses, including the parties and the experts.

[198] The respondent argues that the delivery of Dr. Rosenthal’s opinion two-and-a-half months into the hearing was not an easily rectified deficiency in the appellant’s case. Rather, the opinion was provided after the respondent had closed her case, leaving her experts no opportunity to review the opinion before they provided their evidence. The respondent argues that, while her expert reports had been delivered late, the appellant raised no objection to the timing of the delivery of her reports although he had opportunity to do so. In any event, the respondent argues that any unfairness was cured by my ruling providing the appellant with the opportunity to file fresh expert evidence.

[199] The respondent also argues that any unfairness arising from the fact that the arbitrator did not permit the appellant to ask Dr. Pham whether she recommends vaccinations has been cured by the result of the admission of Dr. Pham’s fresh evidence on appeal, and the appellant’s opportunity to cross-examine her.

[200] Finally, the respondent argues that the arbitrator explained the evidentiary rules respecting the public documents to the appellant.

[201] I accept that the arbitrator has the obligation to treat the parties fairly and equally under s.19 of the Arbitration Act, 1991. I also accept that the Statement provides guidelines which are useful to arbitrators when fulfilling their duty to treat self-represented parties fairly and equally.

[202] I reviewed the transcripts of the arbitration in their entirety. I agree that, overall, the arbitrator took steps to ensure that the appellant’s self-represented status would not impede his ability to present his case. The arbitrator checked in with the appellant often to ensure that he understood the process, and he took other steps to accommodate the appellant, including modifying the traditional order of taking evidence and providing some information about the law and evidentiary requirements relevant to the appellant’s case.

[203] I have some concerns with the arbitrator’s handling of the appellant’s request to admit evidence from Dr. Rosenthal, in circumstances where the respondent’s expert reports were served late, leaving the appellant insufficient time to produce a responding report prior to the commencement of the arbitration. I also have some concerns with the arbitrator preventing the appellant from asking Dr. Pham about her views on vaccination, and then refusing to allow the appellant to testify about his conversation with Dr. Pham about her views on vaccination because Dr. Pham had not been asked about it. However, I agree with the respondent that I need not consider whether the arbitrator’s determinations with respect to these matters amounts to a failure to treat the appellant fairly and equally, because my fresh evidence ruling corrected any prejudice that resulted from these determinations.

[204] In my view, the arbitrator’s discussion with the parties about the public documents exception does not support a conclusion that the arbitrator failed to treat the parties fairly and equally by not explaining the evidentiary rules respecting the public documents exception to the appellant. The appellant raised the public documents exception and came ready with the section from the Ontario Evidence Act, thus suggesting he had some familiarity with the exception. As I have already reviewed, it appears that the arbitrator indicated that he would admit the documents the appellant sought to introduce as public documents but “not necessarily for the truth of their contents”. As noted, the public documents exception is an exception to the hearsay rule, and documents admitted thereunder are admitted for proof of the truth of their contents. Thus, the exchange about the public documents exception is better understood as an error of law committed by the arbitrator, as I explain in my analysis of that issue, rather than a failure to treat the parties fairly and equally.

[205] Thus, I decline to interfere with the arbitrator’s decision on the basis that he failed to treat the parties fairly and equally.

Did the arbitrator err in concluding that the children’s unvaccinated status was a status quo?

[206] The arbitrator indicated that he gave “significant weight to the fact that during the marriage the parties did not vaccinate their children,” and found that the appellant’s reasons for doing so were irrelevant: at para. 42. The arbitrator accepted that the children’s ongoing unvaccinated status constituted a status quo. He went on to conclude that he could “only compel vaccination if [he found] that the failure to do so has prejudiced the children or that it is truly in their best interests from a medical perspective to immunize them now”: at para. 48.

[207] The appellant argues that the arbitrator erred in reaching this conclusion because he found that the relevant period for the determination of the children’s status quo was prior to separation, and by not sufficiently taking into account that the parties agreed in the Minutes of Settlement that they disagreed about vaccination.

[208] The appellant argues that the status quo relied upon by the arbitrator reflected an old situation, prior to separation, and that the arbitrator should have found that the true status quo was the parties’ longstanding disagreement about whether to vaccinate the children.

[209] The appellant argues that the best interests of children change over time, and the arbitrator erred in relying on the pre-separation status quo to determine what was in the best interests of the children at the time of the arbitration.

[210] The respondent argues that the arbitrator made no error in identifying the children’s status quo, and states that s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, in identifying the factors relevant to the best interests of the child, includes “the length of time the child has lived in a stable home environment”, which includes a consideration of the status quo.

[211] In A.C.V.P. v. A.M.T., 2019 ONSC 1559, at paras. 259-260, the court discussed the concept of status quo:

Status quo is neither a rigid concept nor a short-term living arrangement. Rather, it is the regime in place during the relationship and prior to separation. It assists the court by examining how parenting has worked in the past and the benefit or detriment to the children. The status quo, however, is but one factor to consider in the circumstances of the case and within the framework of the best interests of the children test. See: Moggey v. Moggey, (1990) 1990 7339 (SK QB), 28 R.F.L. (3d) 416 (SK QB), 28 R.F.L. (3d) 416 (Sask.Q.B.); Sodhi v. Sodhi, 2002 41503 (Ont.C.A.); Izyuk v. Bilousov, 2011 ONSC 6451; Gerbert v. Wilson, 2015 SKCA 139; and K.R. v. J.K., 2018 SKCA 35.

Following separation, parents must be allowed a reasonable period of time to establish a new parenting regime. I remain of the view, a status quo cannot be manufactured by a delay in the court process: See: White v. Richardson (2005), 2005 14148 (ON SC), 18 R.F.L. (6th) 229 (Ont.S.C.J.). However, it must be recognized that the passage of time can result in the establishment of a new status quo. See: Gebert v. Wilson, supra.

[212] The status quo in this case could be characterized as the children’s unvaccinated status. It could also be characterized as the parties’ long-standing disagreement about whether to vaccinate the children. But I am not a trier of fact at first instance. I find that the arbitrator had a sufficient basis on the record before him to determine that the status quo was the unvaccinated status of the children, which continues to the present time. He made no palpable and overriding error in so finding.

[213] The real issue is whether the arbitrator correctly stated the law with respect to the use to be made of the status quo on the issues before him.

[214] As noted, the arbitrator found that he could only order the children’s immunization if they have been prejudiced by not being vaccinated, or if it is “truly in the best interests from a medical perspective” to immunize them. In my view, this conclusion, standing alone, is an error of law.

[215] As the court made clear in A.C.V.P., status quo is but one factor to consider in the best interests of the child test. The arbitrator was entitled to place significant weight on the status quo, but he was still required to apply the test to determine the best interests of the children, not only whether it was “truly in their best interests from a medical perspective” to immunize them, or to determine if they have been “prejudiced.”

[216] Although in my view, the arbitrator wrongly set out the test at one point in his reasons, at other points in his award, he stated that his “role was to determine whether it is in the best interests of [the children] that they be vaccinated at this point in time.” Later, he considered other factors relating to the children’s best interests outside of their “best interests from a medical perspective”, or their “prejudice.” I thus conclude that, read as a whole, the award indicates that the arbitrator did not improperly confine his analysis of the children’s best interests to a medical perspective, or to an analysis of prejudice. I thus find that the arbitrator made no reversible error in his analysis of the status quo.

Did the arbitrator make palpable and overriding errors of fact?

[217] The appellant argues that, in determining it was not in the children’s best interests to become vaccinated, the arbitrator made palpable and overriding errors of fact.

[218] I first consider whether the errors alleged by the appellant are palpable – that is, plain to see: Housen, at para. 5. After I have reviewed all the alleged errors to determine which, if any, of them are palpable errors, I turn to consider whether, individually or collectively, they are overriding, that is, errors that go to the core of the outcome of the case.

Did the arbitrator err in finding that vaccines have negative outcomes, are not safe, are not fully studied, and that their negative side effects outweigh their limited positive benefits? Did the arbitrator err in finding that there is no risk to the children in remaining unvaccinated?

[219] Although the arbitrator indicated that his role was “not to decide whether vaccinations in general are harmful or beneficial, or the relative merit of systemic vaccinations,” he went on to find that “the proper medical studies regarding the effects of vaccination [have] not been done,” based on the evidence of Dr. Chopra. I have already determined that Dr. Chopra should not have been admitted as an expert qualified to give evidence. Without Dr. Chopra’s evidence, there is no evidence in the record to support this conclusion, which is thus a palpable error of fact because it is a conclusion founded on no evidence.[^8]

[220] Moreover, there was detailed evidence before the arbitrator in the form of the public documents, which I have determined should have been admitted for proof of the truth of their contents. In particular, chapter two of the CIG deals with vaccine safety, and describes vaccine pharmacovigilance in Canada throughout the vaccine product lifecycle, both pre-marketing and post-marketing. Among other things, the chapter discusses the regulatory quality oversight and other pharmacovigilance activities beginning with discovery of a vaccine, through market authorization, and beyond. It describes pre-market clinical testing of vaccinations. It reviews the Canadian Adverse Event Following Immunization Surveillance System, a post-marketing surveillance system to monitor the safety of marketed vaccines in Canada. It describes the involved stakeholders and their roles and responsibilities for pharmacovigilance in Canada. It discusses the evaluation of vaccine safety and quality throughout the product life cycle.

[221] Even if Dr. Chopra’s evidence was admissible, the arbitrator committed a palpable error in reaching the conclusion that vaccines are not fully studied, because in so doing, he disregarded the relevant, material evidence contained in the CIG regarding vaccine safety.

[222] With respect to the appellant’s allegation that the arbitrator erred in finding that vaccines have negative outcomes, are not safe, and that their negative side effects outweigh their limited positive benefits, I note that the arbitrator did not clearly make these findings. He stated that it was not his role to make findings on the correctness of Dr. Bark’s evidence. When he referred to the negative side effects of vaccination outweighing the limited positive benefits, it was in the context of describing the evidence of Dr. Chopra and Dr. Bark.

[223] However, after reviewing Dr. Chopra’s and Dr. Bark’s evidence about the dangers of vaccines, the arbitrator concluded “on the evidence submitted” - which I take to refer to the evidence of Dr. Bark and Dr. Chopra - that he was unable to find any risk to the children if they remain unvaccinated. Given that he had already accepted that vaccines are not properly studied, I infer that the arbitrator accepted, at least, that it is possible that vaccines are unsafe, and that it is possible that their negative side effects outweigh their limited positive benefits.

[224] To find that there was no risk to the children in remaining unvaccinated, the arbitrator had to accept that becoming vaccinated would not alleviate any risk of contracting a vaccine-preventable disease. Logically, that can only be true if vaccines are ineffective, or if there is no risk of exposure to such a disease.

[225] I note that the arbitrator referred to Dr. Chopra’s evidence that the risks to an unvaccinated child within a population that is generally vaccinated is extremely small. I considered whether the arbitrator concluded that there was no risk to the children because the population is generally vaccinated, thus conferring protection on the children. However, I have difficulty concluding this is the basis for the arbitrator’s conclusion that the children were not at risk from vaccine-preventable diseases for two reasons. First, the evidence before the arbitrator indicated that the children had already contracted a vaccine-preventable disease, thus demonstrating that the immunity of a vaccinated population does not reduce the risk of an unvaccinated person contracting a vaccine-preventable disease to zero. Second, I cannot square a conclusion that a vaccinated population will protect the children from vaccine-preventable disease with the arbitrator’s earlier finding that vaccines have not been properly studied. There is a logical inconsistency between the evidence given by Dr. Chopra that (i) vaccines are not properly studied, and thus not proven to work effectively, and (ii) a vaccinated population protects an unvaccinated person. The contradiction was not addressed by either Dr. Chopra or the arbitrator.

[226] At the same time, there was evidence in the CIG about the benefits of vaccination (in addition to the evidence about the safety of vaccination). The CIG includes a section in chapter one about the benefits of immunization, calling it “one of the most important accomplishments in public health”. It provides information of the impact of vaccines on vaccine-preventable diseases including diptheria, Hib, measles, meningococcal, mumps, polio, rubella, and tetanus. To take just one example, the peak annual number of cases in the pre-vaccine era for measles was 61,370. In the post-vaccination area, the peak number of cases was 752. Case fatality rate for measles is one to two per 1000.

[227] The arbitrator thus disregarded relevant evidence about the risks of vaccine-preventable disease, and the benefits of vaccines when he reached his conclusion that there was no risk to the children if they remain unvaccinated. He made a palpable error in reaching this conclusion for that reason alone. Moreover, given that I have concluded that neither Dr. Bark nor Dr. Chopra should have been permitted to give expert evidence, there was no admissible evidence on the record to support a conclusion that remaining unvaccinated presented no risk to the children. The conclusion is a palpable error for this reason as well.

Did the arbitrator err in finding that there is a specific risk to the children in becoming vaccinated due to the respondent’s MTHFR genetic variation?

[228] The arbitrator placed great weight on the “extra risk” to the children from becoming vaccinated as a result of the respondent’s MTHFR genetic variation. This can be seen in the following comments (among others) in the arbitrator’s award:

a. What was most compelling to me from the evidence of Dr. Bark was the following. [The respondent] has a certain genetic variation wherein her body does not produce specific enzymes needed to detoxify certain toxins. In her report Dr. Bark states “[The respondent] tested homozygous for a genetic SNIP variation which leaves her challenged in terms of her methylation cycle and hence detoxification abilities. This is pertinent because her homozygous status translates to [the children] being heterozygous at best and possibly homozygous as well”: at para. 57.

b. In simple terms, vaccinations pose a greater risk to [the children] than to other children due to the possibility that they may also have limitation on the ability to detoxify the toxins within most vaccines: at para. 58.

c. I am satisfied on the evidence that the vaccinations may pose additional risk to [the children] given [the respondent’s] medical condition, which they may have: at para. 68.

d. [The appellant] offered no contradictory evidence regarding the extra risk to [the children] given [the respondent’s] genetic structure…In short, his evidence was not sufficient to overcome the specific evidence of risk presented by [the respondent]: at para. 74.

[229] In addition to the evidence from Dr. Bark about the MTHFR genetic variation, which the arbitrator summarized as I noted above, the respondent also gave some evidence about the genetic variation. She indicated that she has the MTHFR genetic variation. The respondent began to describe that a “major issue is that our detoxification pathways are compromised” as a result of the inability to break down folic acid into its bioavailable form, but her evidence was interrupted by her counsel who indicated that she did not need to go into that because Dr. Bark covered it, presumably reflecting counsel’s assessment that the impact of the MTHFR genetic variation on the body’s response to vaccination was a matter for expert evidence.

[230] Dr. Pham testified only that she (Dr. Pham) had been informed that the respondent has the MTHFR genetic mutation, and that she had discussed “what would be the appropriate thing to do about that” with the respondent. She did not elaborate on the discussions or her advice to the respondent.[^9]

[231] There is no other evidence of increased risk to the children from vaccination on the record.

[232] Once Dr. Bark’s evidence is excluded, as I have determined it must be, there remains no evidence that was before the arbitrator to support the conclusion that the respondent’s MTHFR genetic variation is a contraindication to vaccination for the children, or that the children are at greater risk from vaccination. The respondent’s evidence on the issue was incomplete, and in any event, the respondent is not an expert who would have been capable of proving that her having the MTHFR genetic variation indicates enhanced risk to the children from vaccines. The conclusion that the children are at greater risk from vaccination due to the genetic variation is thus a palpable error made by the arbitrator because it is based on no admissible evidence.

Did the arbitrator err in finding that the children’s views on vaccination have aligned with the respondent or that the dispute between the parties about vaccination, and the prospect of being forced to become vaccinated, is a source of anxiety for the children?

[233] The appellant argues that the arbitrator erred when he concluded that “the children have aligned to a certain extent with [the respondent’s] views on vaccinations,” and the conflict over vaccination is a “source of anxiety for [the children]”. The arbitrator found that “[t]he prospect that they will be forced to be vaccinated is making them anxious and stressed. Their best interests require that they be freed from this conflict, which can only occur with the Award I have made”: at para. 79.

[234] The evidence about the children’s views and preferences and their anxiety regarding vaccination that was before the arbitrator is scarce. In cross-examination, the appellant was asked if he knows how the parties’ older child, N, feels about vaccinations. The thrust of the appellant’s evidence was that, after the parties entered into an agreement (it is unclear whether it is the separation agreement or arbitration agreement that he was referring to), when N was about ten years old, the respondent, over the objections of the appellant, took N to see “Vaxxed”, a film which the appellant described as “promoting anti vaccine.” He testified that the film was the only information N had received about vaccinations up to that point, and that afterwards, the appellant told N that doctors have a different point of view, and that the question about whether to vaccinate N would be resolved between the parties, and perhaps a judge or an arbitrator.

[235] According to the appellant, N is a smart child, and the appellant did not think that N would suffer psychological harm from becoming vaccinated, or be “really upset” or “scared.”

[236] The appellant gave no evidence about how the parties’ younger child, M, might feel about becoming vaccinated. The respondent did not give any evidence about either child’s views on vaccination, or how she thought they would feel about becoming vaccinated.

[237] At the arbitration, Dr. Pham deposed that she had offered vaccinations for the children but the respondent had declined to vaccinate them.

[238] I have been unable to locate any additional evidence before the arbitrator on the children’s views and preferences, or whether the conflict between the parties relating to vaccination is a source of anxiety for the children, or whether the children are stressed or anxious about the prospect of being vaccinated, such that an award declining to order their vaccination is necessary to free the children from the parents’ conflict.[^10] The little evidence that was before the arbitrator does not relate at all to M. With respect to N, the evidence established that N had been exposed to a movie that presented views against vaccination, and information from the appellant that there is another point of view. In my view, the arbitrator misapprehended the evidence when he concluded, on this foundation only, that the children have aligned with the respondent with respect to her views on vaccination, and that the conflict regarding vaccination is a source of stress for the children, and that the children are anxious and stressed about becoming vaccinated, such that that arbitrator’s award was necessary to free the children from the conflict. The arbitrator thus made palpable errors in reaching these conclusions.

Are these palpable errors also overriding?

[239] In order to interfere with the arbitrator’s conclusion that it was not in the best interests of the children to become vaccinated, it is not enough that the arbitrator’s findings of fact be found to be palpably wrong. They must also be overriding errors – that is, errors that could have affected the result.

[240] The arbitrator’s conclusion that it was not in the best interests of the children to become vaccinated, as I have noted, rested on four pillars: (i) his finding that the status quo was that children are unvaccinated; (ii) his conclusion that the children are not at risk from being unvaccinated; (iii) his conclusion that the children are at increased risk from vaccination due to the respondent’s MTHFR genetic variation; and (iv) his conclusion that the children are anxious and stressed due to the prospect that they will be forced to become vaccinated, and only an award that they not become vaccinated will free them from the conflict between the parties.

[241] I have found that three of these four pillars were palpable errors. I need not consider whether individually any of these errors is overriding; cumulatively they are overriding. The arbitrator’s findings about the stress and anxiety felt by the children, his determination that the children were not at risk from being unvaccinated, and his conclusion that the respondent’s MTHFR genetic variation placed the children at increased risk from vaccination were all relevant and important parts of his determination that vaccination was not in their best interest. The arbitrator erred in reaching his conclusion that it is not in the best interests of the children to become vaccinated.

[242] Under s. 45(5) of the Arbitration Act, 1991, on appeal, the court may confirm, vary, or set aside the arbitral award, or may remit the award to the arbitral tribunal.

[243] In my view, given the primary objective set out in r. 2(2) of the Family Law Rules, it is most appropriate to re-examine the question of the best interests of the children on this appeal, having regard to the evidence on the arbitration that was properly admissible, and the fresh evidence. Returning the matter to arbitration would necessitate additional cost and delay for the parties, which is inconsistent with the objective of dealing with cases justly, as described in r. 2(3) of the Family Law Rules.

What do the best interests of the children require?

[244] When making determinations of custody, including incidents of custody, such as medical decisions, a court should have regard to the factors laid out in s. 24(2) of the Children’s Law Reform Act. Of note in this case are:

a. The child’s views and preferences, if they can reasonably be ascertained;

b. The length of time the child has lived in a stable home environment, which in this context, I take to mean the status quo;

c. The plan proposed by each person applying for custody, which in this context refers to the plan for the management of the children’s health, having regard to vaccine-preventable diseases.

[245] I consider each of these factors in turn, having regard to the evidence at the arbitration, and the fresh evidence.

The Children’s Views and Preferences

[246] With respect to the children’s views and preferences, I have already noted that the evidence at the arbitration did not establish that the children are opposed to vaccination, or are feeling anxious or stressed about the possibility of becoming vaccinated.

[247] The respondent’s fresh evidence, however, does address the question of N’s views and preferences, and the stress felt by the children.

[248] In her affidavit filed as fresh evidence, Dr. Pham deposes that, in her view, N is sufficiently mature to consent, or to refuse to consent, to receiving vaccinations, and that N has expressed to her a wish not “to be administered any vaccinations at the present moment.”

[249] Dr. Pham also deposes that her “greatest and only concern” is for the psychological and emotional health of the children. She makes reference to the parties’ “high-conflict divorce”, and makes some general comments about mental health concerns in the important developmental preteen and teen years. She refers to an incident in 2016 when N presented with symptoms requiring some consultations, and her view that stress and anxiety “due to the parental conflict” was the most likely underlying cause of these symptoms. There is no evidence in the record that N has suffered any physical manifestations of stress or anxiety since 2016.

[250] Dr. Pham concludes:

Based on my conversations with and observations of [the children], I am concerned about the potential negative psychological and emotional impacts of the very adversarial conflict between their parents, where vaccinations are used as a point of contention at a philosophical level, as opposed to focusing on the well-being of the children right in front of them.

[251] In her cross-examination on this affidavit, Dr. Pham explained that she had a “check-in” with the children in June 2019, the purpose of which was to have a discussion regarding vaccines, and also to see how they were doing. She could not remember who requested the appointment, but recalled that the respondent brought the children to the appointment and was present throughout, at the request of the children. She was unable to confirm whether she had spoken to the children about vaccinations on other occasions, but stated that, as far as she could remember, it was only that one visit.

[252] Dr. Pham clarified that her affidavit evidence that N had expressed that a wish not to be administered any vaccinations “at the present time” refers to N’s expression of that view to her at the appointment in June 2019. She was unable to clarify whether that statement meant that N did not wish to be administered vaccines on that day, or at all. She also indicated her view that N is a mature minor, and capable of consenting, or not, to receiving vaccinations.

[253] Dr. Pham explained that she had a “standard discussion” about vaccinations with the children, when she explained the benefits and risks of vaccination, the vaccinations that are standard for N’s age group, and the implications of illness from not receiving vaccinations. She did not know if she asked why N did not wish to be vaccinated, although she indicated she has a general practice of asking people why they refuse treatment. In any case, she either did not remember or know why N was refusing vaccinations; she stated she had not documented it.

[254] Dr. Pham testified that she did not tell the children that the link between the MMR vaccination and autism has been discredited, nor did she tell them that there is no evidence that the ingredients in vaccines are harmful.

[255] Dr. Pham also testified that, in her opinion, N is under quite a lot of stress because of the adversarial conflict between the parties, of which the vaccination debate is a part. She agreed that “the conflict between the parents is causing the children harm.”

[256] Dr. Pham also stated that she did not see the children often, because they were in good health, but she had seen them in early 2020 for counselling, which she described as “a generic term”. She clarified she did not see the children for a physical examination, but she could not comment on the purpose of the counselling without her notes. However, she confirmed the children’s ongoing good health.

[257] Dr. Pham’s fresh evidence is the only evidence on the record, apart from the appellant’s evidence that I have already described, that relates to the children’s views on vaccination, and the stress they are under from the parties’ conflict.

[258] In my view, Dr. Pham’s evidence suggests that N may be hesitant to receive vaccines, but equally, that N may not be fully informed about vaccines, and in particular, N may be unaware that the allegations about the dangers of vaccines to which N may have been exposed by watching Vaxxed have been disproven.

[259] I also note that it was wrong, in the face of the parties’ agreement, and what was either a possibility or an inevitability that the parties were going to arbitrate the question of vaccines, for the respondent to take N to see Vaxxed. The court does not condone the actions of a party to a dispute over vaccines trying to gain the upper hand by attempting to persuade a child that vaccines are dangerous, contrary to widely accepted scientific study and evidence. The respondent should not be rewarded for successfully scaring N if the child in fact has become frightened of vaccines.

[260] In my view, however, nothing on the record confirms that N’s views about vaccines are not open to change if properly informed, nor that the statement to Dr. Pham that N did not wish to be vaccinated “at this time” in June 2019 is an indication that N will not wish to be vaccinated, or that, in refusing vaccination that day – in the presence of the respondent – N was making a fully informed choice.

[261] I thus place little weight on Dr. Pham’s evidence that N indicated a wish not to be vaccinated “at this time” in June 2019 in terms of assessing N’s views and preferences.

[262] The record contains no evidence about M’s views and preferences with respect to vaccines.

[263] I accept that the children are under stress as a result of the parties’ conflict of which vaccines and vaccination are a part. However, the evidence indicates that it is the conflict between the parties, not the potential to become vaccinated, that is harming the children. It is my hope that the conclusion of these proceedings will finally put an end to the conflict, and alleviate the stress to the children.

The Status Quo

[264] As I have already noted, the arbitrator did not commit any reversible error in his determination that the status quo was the children’s unvaccinated status. I do not think it is open to me, even while reconsidering the question of the children’s best interest, to reconsider this conclusion.

[265] Accordingly, the status quo supports continuing the children’s unvaccinated status, but it is only one factor to consider in determining the best interests of the children overall. This is particularly so given that what is sought is a final order, not an interim order, where the status quo is particularly relevant: Gray v. Canonico, 2020 ONSC 5885, at para. 39.

[266] In this case, the status quo exists due to the respondent’s belief that there are risks to the children from becoming vaccinated – risks that are not made out on the evidence that was before the arbitrator, or that is before me. As I have reviewed, the evidence on the arbitration overwhelmingly established that vaccines are safe and effective and have been properly studied. This conclusion is supported by the appellant’s experts’ evidence, admitted as fresh evidence on appeal. The respondent’s belief that vaccines are dangerous is misinformed.

[267] Moreover, the evidence I have reviewed also demonstrates that the children are at no increased risk of an adverse consequence from vaccination due to the respondent’s MTHFR genetic variation. The alleged increased risk to the children from the genetic variation was not established at the arbitration. Moreover, the fresh evidence on appeal, and particularly the evidence of Dr. Sondheimer, which is supported by the evidence of Dr. Loh and Dr. Rosenthal, indicates that the respondent’s MTHFR genetic variation is not a contraindication for vaccination for the children; rather, Dr. Sondheimer deposed that MTHFR variants are irrelevant to the question of whether a child should be vaccinated. He also deposed that, contrary to the respondent’s theory about the MTHFR variation’s impact on a person’s ability to “detoxify the toxins” in vaccines, MTHFR does not detoxify or in any way interact with heavy metals.

[268] The status quo thus has its genesis in the respondent’s misapprehension and misunderstanding about the safety and efficacy of vaccines, and the risk to the children due to her MTHFR genetic variation. Thus, while I believe I am bound by the arbitrator’s determination of what status quo is, I do not believe I am required to place significant weight on the status quo at this stage in my analysis, especially when the evidence proves that the status quo grew out of misinformation. I thus place little weight on the status quo in determining whether vaccination is in the children’s best interests.

The Plan Proposed by Each Person Applying for Custody, which in this Context Refers to the Plan for the Management of the Children’s Health, Having Regard to Vaccine-Preventable Diseases

[269] Neither party led detailed evidence of a plan to manage the children’s health having regard to vaccine-preventable diseases. The respondent testified that she tries to boost the children’s immunity through supplements, and she prefers using holistic healthcare practices to manage their health. For the most part, the children have been healthy, although as I have noted, they contracted a vaccine-preventable disease in 2017 from which they recovered.

[270] The appellant’s plan is to vaccinate the children. The respondent criticizes this plan, arguing that it is a non-plan; there is no plan for what vaccines to give the children, and when.

[271] The children have not received any usual childhood vaccinations. Dr. Bark, whose evidence I have excluded, raised concerns about vaccinating a child all at once with multiple vaccinations to catch them up. The appellant’s expert, Dr. Loh, deposes that it is not uncommon for children and adults to receive childhood vaccination at later ages than typical and to still receive all the benefits of those vaccinations.

[272] At the arbitration, the appellant was asked what advice he had been given from physicians as to what vaccinations would be administered to the children and when, if vaccination were ordered. The appellant said, “If I had the power to give the vaccinations, that is the question I would ask the doctors.”

[273] The appellant’s plan is thus to vaccinate the children against vaccine-preventable diseases in accordance with medical advice from a physician. I agree that it would be appropriate to obtain a physician’s advice and guidance as to the best way to vaccinate a child who has not received any of the usual childhood vaccines on the usual schedule.

[274] The appellant’s plan is appropriate because it addresses an unnecessary risk the children currently face: illness, permanent health consequences, or death, from vaccine-preventable diseases. It does so in an appropriate way – through the administration of vaccines that are properly tested, and have been found to be safe and effective, with only minor side effects, in accordance with medical advice. Vaccinating the children is a safe way to protect them against unnecessary and serious risks.

[275] The respondent’s plan, while no doubt grounded in her subjective, honest belief about what is best for the children, leaves the children vulnerable to unnecessary and serious disease, and possible resultant morbidity and mortality, when the risk could be significantly alleviated through the administration of common, safe, and effective vaccines.

Conclusion on the Children’s Best Interests

[276] In my view, having regard to all these factors, it is in the best interests of the children to order, on a final basis, that the appellant shall have the sole responsibility to make vaccination-related decisions for them. This order will ensure that the children become vaccinated in accordance with the advice of a physician as to the vaccines to be administered, and the manner and timing by which to administer the vaccinations.

[277] For clarity, the appellant’s decision-making authority regarding vaccinations shall include:

a. the right to choose the physician(s) who will provide advice related to vaccination for the children, and the physician(s) or other medical professional(s) who will administer the vaccines to the children;

b. the right to decide the vaccines to be administered to the children, and the manner and timing by which to administer the vaccines, in consultation with the appellant’s chosen physician(s);

c. the right to take the children to the appellant’s chosen physician(s) for the purpose of obtaining vaccination-related advice and receiving vaccines, during the appellant’s parenting time only, unless the respondent agrees otherwise.

[278] Any concerns the children may have about vaccines and vaccination can be alleviated through communication with them about the fact that vaccines are well-tested and safe, with only minor side effects, and the provision of any other information that may be necessary to dispel any misconceptions they may have about the safety and efficacy of vaccines.

[279] I note the respondent’s concerns, grounded in the evidence of Dr. Pham, that N is a mature minor who does not want to become vaccinated. In my view, the question of N’s ability to give informed consent is beyond the scope of this appeal. My order binds the parties only. Whether N is a mature minor capable of consenting, or not, to receive a vaccination is a matter between N and the physician who is asked to administer the vaccinations.

[280] However, I have concerns relating to the respondent’s past conduct when she took N to see Vaxxed. I am concerned she may take additional steps to attempt to pre-dispose the children to refuse vaccinations, and in doing so, interfere with my order that the appellant shall have sole decision-making responsibility regarding vaccines for the children.

[281] Rule 1(6) of the Family Law Rules allows a court making an order to impose conditions and give directions as appropriate.

[282] In my view, it is appropriate for purposes of ensuring the integrity of the court’s order to order the respondent not to tell, or suggest to, the children, directly or indirectly, that vaccines are untested, unsafe, ineffective, or that they are particularly at risk from vaccinations. I also order the respondent not to permit any other person to have any such discussion, or make any such suggestion to the children, directly or indirectly. For clarity, this includes prohibiting the respondent from showing the children movies, social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of vaccines, or permitting any other person to do so.

The Court’s Parens Patriae Jurisdiction

[283] In written argument, the appellant argued that, if I find that the arbitrator made no appealable error, I have jurisdiction to exercise the court’s parens patriae authority to protect the children by ordering their vaccination. The appellant relies on case law in which, at first instance, courts granted decision-making authority to a parent who supported vaccination over the objections of the other parent: M.J.T. v. D.M.D., 2012 BCSC 863; G.M. v. S.S., 2012 BCSC 1491; C.M.G. v. D.W.S., 2015 ONSC 2201, 58 R.F.L. (7th) 376; P.W. v. C.M., 2017 NSSC 91.

[284] If I am wrong that the arbitrator committed reversible error, I would not avail myself of the court’s parens patriae jurisdiction to order the vaccination of the children. The parties submitted the question of their children’s vaccination to arbitration by way of their agreement. I agree with the respondent that the court cannot invoke its parens patriae jurisdiction to exceed the jurisdictional bounds of the appeal.

[285] Moreover, the court’s parens patriae jurisdiction is to be exercised only in limited circumstances where a child is in danger, or there is a legislative gap.: Bhajan v. Bhajan, 2010 ONCA 714, 104 O.R. (3d) 368, at para. 25; Duff v. James, 2017 ONCA 606, 100 R.F.L. (7th) 1, at para. 14.

[286] There is no legislative gap to be filled in this case. Moreover, the “danger” presented by the children’s unvaccinated status does not rise to the level that would justify the invocation of the court’s parens patriae jurisdiction in these circumstances.

Costs

[287] In the event the appellant is successful on this appeal, as he has been, he seeks to set aside the costs award below. Costs of this appeal must also be addressed.

[288] If the parties are unable to agree on the costs of the arbitration and appeal, they may provide written costs submissions in accordance with the following schedule:

a. The appellant shall provide his written costs submissions, not to exceed six pages, plus a bill of costs and any relevant offers to settle and jurisprudence, within ten days of the release of these reasons;

b. The respondent shall provide her responding submissions, not to exceed six pages, plus a bill of costs and any relevant offers to settle and jurisprudence, within one week of receipt of the appellant’s submissions;

c. The appellant may provide reply costs submissions, not to exceed three pages, within five days of receipt of the respondent’s submissions.

[289] In accordance with the terms of the order permitting the intervention of the intervener, no costs order shall be made with respect to the intervener.

Conclusion

[290] In summary, I allow the appeal and make the following order:

a. On a final basis, the appellant shall have the sole responsibility to make vaccination-related decisions for the children. The appellant’s decision-making authority regarding vaccinations shall include:

i. the right to choose the physician(s) who will provide advice related to vaccination for the children, and the physician(s) or other medical professional(s) who will administer the vaccines to the children;

ii. the right to decide the vaccines to be administered to the children, and the manner and timing by which to administer the vaccines, in consultation with the appellant’s chosen physician(s);

iii. the right to take the children to the appellant’s chosen physician(s) for the purpose of obtaining vaccination-related advice and receiving vaccines, during the appellant’s parenting time only, unless the respondent agrees otherwise.

b. The respondent shall not tell, or suggest to, the children, directly or indirectly, that vaccines are untested, unsafe, ineffective, or that they are particularly at risk from vaccinations. The respondent shall not permit any other person to have any such discussion, or make any such suggestion to the children, directly or indirectly. For clarity, the respondent shall not show the children movies, social media sites, websites, other online information, literature, or any other material that calls into question the safety or efficacy of vaccines, and shall not permit any other person to do so;

c. If the parties are unable to agree on the costs of the arbitration and appeal, they may provide written costs submissions in accordance with the following schedule:

i. The appellant shall provide his written costs submissions, not to exceed six pages, plus a bill of costs and any relevant offers to settle and jurisprudence, within ten days of the release of these reasons;

ii. The respondent shall provide her responding submissions, not to exceed six pages, plus a bill of costs and any relevant offers to settle and jurisprudence, within one week of receipt of the appellant’s submissions;

iii. The appellant may provide reply costs submissions, not to exceed three pages, within five days of receipt of the respondent’s submissions.

d. This endorsement is an order of the Court, enforceable by law from the moment it is released.

J.T. Akbarali J.

Released: January 7, 2021

COURT FILE NO.: FS-18-2842-0000

DATE: 20210107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.P.

Appellant

– and –

L.K.

Respondent

– and –

Medical Officer of Health (City of Toronto)

Intervener

REASONS FOR JUDGMENT

J.T. Akbarali, J.

Released: January 7, 2021

[^1]: See also R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 36; R. v. K.A., (1999), 1999 3793 (ON CA), 176 D.L.R. (4th) 665 (Ont. C.A.), at para. 87.

[^2]: This may have been an ongoing appointment at the time of the arbitration, which was held in 2017.

[^3]: Later in her evidence, after she was qualified as an expert, she was asked about whether vaccines had been tested between different cultures, races and socioeconomic classes. She stated, “They have quietly. I think Gregory Polland, again the head of Mayo Clinic began the vision on it. I believe there was the term, adversinomics, and that is adverse to vaccinations…” She then went on to discuss high rates of autism in the Somali community in Minnesota who “react very differently to the rubella of the MMR than white kids…”, which evidence does not assist in clarifying what “adversinomics” is. It appears that “adversinomics” refers to vaccine-hesitancy, but her evidence does not explain it, or how one becomes an expert in it.

[^4]: This description of NACI is taken from the Canadian Immunization Guide, which I address later in these reasons.

[^5]: As noted, the widespread scientific consensus that Dr. Bark’s theories about vaccines being dangerous and ineffective are wrong is demonstrated in the documents the appellant relies on in this appeal, including the Canadian Immunization Guide and Immunization 2020, and is also supported by the evidence of the appellant’s experts.

[^6]: No argument made at the appeal suggests that she relies on r. 20.1(b) or (c) to support the exclusion of the appellant’s experts’ evidence.

[^7]: I note that Dr. Chopra did not give evidence orally or in his report that was specific to the parties’ children either, but confined his evidence to the general issues of vaccine safety and efficacy. Moreover, Dr. Chopra’s report consisted of a portion of a book he wrote on vaccination that appears to be unpublished, as opposed to a report specific to this case. Dr. Chopra did not indicate what, if any, documents he reviewed to prepare his evidence for the arbitration, and he specifically indicated that his “observations” may not address the personal situation of the parties’ children.

The bulk of Dr. Bark’s evidence can be similarly described. It appears neither Dr. Chopra nor Dr. Bark saw the children. Dr. Bark’s report set out general comments about different vaccines, and addressed conflicts of interest. Her report concluded with a single paragraph that mentions the parties’ children, in which she set out her opinion about the MTHFR genetic variation generally that might be said to specifically apply to the parties’ children – evidence which I have found was out of the scope of her expertise even if she had been properly qualified as an expert.

I also note that Dr. Rosenthal saw the children during the break in the arbitration.

[^8]: To the extent any of Dr. Bark’s evidence supports this conclusion, it has also been excluded.

[^9]: In cross-examination on her affidavit filed as fresh evidence, Dr. Pham again indicated she was aware of one conversation she had with the respondent “around the mutation in the distant family.”

[^10]: I note parenthetically that the award obviously did not end the conflict between the parties.