COURT FILE NO.: TBD

DATE: 20210413

ONTARIO SUPERIOR COURT OF JUSTICE

RE: ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND ON BEHALF OF THE MEMBERS OF THE ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, and ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION DISTRICT 16, Plaintiffs

-and-

DR. KARIM KURJI in his capacity as YORK REGION MEDICAL OFFICER OF HEALTH, MINISTRY OF EDUCATION as represented by the CROWN IN RIGHT OF ONTARIO, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Susan Ursel, Kristen Allen, Vaino Poysa and Emily Home, for the Plaintiffs Jonathan Lisus, Philip Underwood and Jasmine Landau, for the Defendant Dr. Karim Kurji, in his capacity as York Region Medical Officer of Health Rochelle Fox, for the Defendant Ministry of Education as represented by the Crown in Right of Ontario Paul Cavalluzzo, for the Proposed intervenor Ontario English Catholic Teachers’ Association Lise Leduc, for the Proposed intervenor L'Association Des Enseignantes Et Des Enseignants Franco-Ontariens Howard Goldblatt and Daniel Sheppard, for the Proposed intervenor Elementary Teachers Federation of Ontario John-Paul Alexandrowicz and Lesley Campbell, for the Proposed intervenor York Region District School Board and York Catholic District School Board Jackie Esmonde, for the Proposed intervenor Canadian Union of Public Employees Paul Marshall, for the Proposed intervenor Conseil Scolaire Catholique Monavenir

HEARD: April 14, 2021 (videoconference)

ENDORSEMENT

Relief Requested

[1] Scheduling urgent motions to intervene and for an interim injunction..

Disposition

[2] The OSSTF’s motion for an interlocutory injunction is scheduled to be heard Monday, April 19, 2021 at 10:00 a.m. on the timetable and subject to the terms set out paras. 25 to 29 below..

Costs

[3] Not applicable.

Brief Reasons

[4] This is a very difficult motion to schedule. There is no lawsuit started yet. In urgent cases, the Rules of Civil Procedure that govern civil lawsuits allow this to happen. Rule 37.17 says:

In an urgent case, a motion may be made before the commencement of a proceeding on the moving party’s undertaking to commence the proceeding forthwith.

[5] Normally in an urgent matter, the moving party is just too busy to start the lawsuit. The lawyer for the party undertakes to do so as soon as she can. But, in the interim, at least the court and the parties know the basis of the claim

[6] Here, the moving party delivered its material Monday of this week. Yet they do not propose to start the lawsuit until April 23, 2021. As discussed below, this is a date after the motion will be decided and after the event that is the subject of the claim will likely have happened. OSSTF’s proposal does not comply with Rule 37.17.

[7] According to the notice of motion delivered by the OSSTF, the moving party seeks a temporary injunction order requiring York Region Public Health Unit to “pivot to virtual learning” until in-person education workers are vaccinated against COVID-19. Or, they seek a temporary injunction requiring all schools in York Region Health Unit to pivot to virtual learning for four weeks “pending resolution of the intended proceeding”. Alternatively, the moving party asks for a temporary injunction compelling the York Region Medical Officer of Health to direct closure of all schools in York Region Public Health Unit for four weeks pending resolution of this proceeding. As a further alternative, the moving party seeks a temporary injunction requiring the Crown, represented by the Minister of Education, to close all schools in York Region Public Health Unit for in-person learning until in-person education workers are effectively vaccinated. Finally, the moving party seeks an order requiring the Minister to exercise the power in s. 5(1) of the Education Act to close all schools in York Region Public Health Unit for in-person learning for four weeks.

[8] The notice of motion describes the fact situation is some detail. It also sets out various statutory duties that it says are owed by the government and officials to safeguard public health including the applicants’ members. The notice of motion then explains that the moving party intends to argue that the government’s failure to close schools amounts to a violation of rights under s. 7 of the Charter of Rights.

The notice of motion says:

OSSTF intends to bring this Charter application imminently and will seek as a remedy, inter alia, the writ of mandamus to compel alternatively the local MOH or the Crown to exercise their respective statutory authority to close schools until education workers are vaccinated

[9] One problem that I have is that the remedy of a temporary or interlocutory injunction is designed to provide urgent relief pending a later determination of the issues in a lawsuit. On a motion for an interlocutory injunction, the likely success of the lawsuit is only one of three issues and a minor one at that. The main question on a motion for a temporary injunction is whether the moving party will suffer incompensable harm between now and the subsequent hearing of the trial of the action. If a plaintiff brings a lawsuit that looks serious and will suffer harm pending the trial that is so severe that it cannot be compensated by an award of damages later, the defendant may be enjoined from misconduct before the trial although the plaintiff has not yet proven that the defendant actually did anything wrong. A temporary injunction can be granted when the harm to the plaintiff of waiting for the trial is too great, the defendant will not be as harmed by suffering a temporary injunction being granted against it, and the case looks like a serious case. In constitutional cases, the public interest factors into the balance especially.

[10] But here, the relief being sought, as phrased in the notice of motion, appears to be the actual merits of the claim. There is no lawsuit commenced because there will be nothing left after the hearing proposed. In addition, an order seeking relief against a government or a government official who fails to exercise her statutory authority or who exercises statutory authority wrongly, is properly an application for judicial review under the Judicial Review Procedure Act. That statute deals specifically with claims in the nature of a writ of mandamus to compel a government official to act. An application for judicial review of government exercise or lack of exercise of its statutory powers is brought to a three-judge panel of the Divisional Court rather than to a civil judge. Although s. 6(2) of that statute allows an urgent application to be made to a single judge of this court, the Consolidated Divisional Court Practice Direction requires that in Toronto such a motion is made to a single judge of the Divisional Court rather than to this court.

[11] Charter applications can be heard in this court. If the Charter application seeks to require or prohibit the exercise of a statutory power or a statutory power of decision, this may be the wrong court.

[12] Without a lawsuit being started, I do not know what type of relief is being sought and whether this is properly an application for judicial review or something else.

[13] To complicate matters further, after the OSSTF served its proceeding, the Province announced that it will be filing an order-in-council under the COVID-19 emergency statutes to require schools to close to in-person learning and require remote education for the time being. The OSSTF therefore has what it seeks. But, the government also announced that the order-in-council will contain an exemption to continue to allow (or to require under the Education Act) in-person education for a small set of special needs students whom the various school boards apparently have determined cannot learn remotely. The OSSTF says it now needs to deliver new evidence and update its medical evidence to aim specifically at the plight of these special needs students and those who will be required to attend schools in-person to teach and care for them.

[14] It is even less clear therefore what relief the OSSTF now seeks. Is it claiming that the Lieutenant Governor-in-Council has failed to properly exercise its statutory power to order closures (and exemptions to closure orders) under the emergency laws? The notice of motion does not say this. Is this properly a remedy by way of judicial review for the Divisional Court?

[15] No one can know because the order-in-council is not even filed yet. It may be filed today or soon. But the matter is sufficiently urgent that the constitutionality of a law is being challenged before the law is in force. That is not improper. Planning the earliest hearing for when the law does come into force is perfectly appropriate. It just shows how tight the times are in this case.

[16] The OSSTF says that the earliest re-opening of special needs classes after spring break is next Wednesday, April 21, 2021. It therefore requests an urgent hearing on Monday, April 19, 2021. It initially proposed to deliver its updated evidence on Friday, April 160, 2021.

[17] As I alluded to above, the OSSTF proposes that it will commence its lawsuit only after it sees if schools actually re-open for special needs students next Wednesday

[18] There are six parties listed above who all propose to intervene in this proceeding as parties. They have the unilateral right to start their own lawsuit(s). The OSSTF would probably be glad let any of them be a co-applicant or co-plaintiff in this case. If OSSTF refused to join with others, the six others could start their own claim(s) and the various claims could all be joined and heard together. But the six bodies do not want to be plaintiffs or applicants however. They have their own reasons to ask the court to allow them to be added to this claim as intervenors. However, Mr. Goldblatt, for ETFO, makes the point that his client will not know how to plead its case to be allowed to intervene until it sees the evidence and position of the OSSTF. So, he asks for more time to deliver his client’s material.

[19] The proposed interveners require leave or permission to intervene. That means they need to bring their own motions. The OSSTF says it consents to the interventions. Neither of the responding parties can take a position as yet as they have not seen anything from the proposed interveners. No litigant wants to face an intervenor who just parrots the position of its opponent. An intervenor needs to have a unique viewpoint or to be affected in its legal rights. I agree with Mr. Alexandrowicz that his clients may have evidence to give and have a great interest in watching the proceedings. But that makes them possible witnesses and observers. It does not necessarily mean they need to intervene as parties. Every teacher and student in the region has a similar interest Families of special needs students do too. They will all be affected by whether the schools are closed to in-personal learning or not. Whether any is affected in her legal rights or has an interest sufficient to intervene is a more nuanced issue.

[20] With six motions to intervene all to be heard Monday before the hearing of the injunction, I question if there is enough time in the day.

[21] Being added as a party to a legal proceeding presupposes that the proceeding exists. Intervening in a proceeding that has yet to be brought is a non-sequitor. There is no proceeding in which anyone can intervene. There is no such thing as being named a “party” in a motion.

[22] In my view, if this last minute and substantial motion is to be heard next Monday, it would be unfair to the responding parties to allow the interventions to proceed. In responding to a request from Mr. Lisus, Ms. Ursel agreed to deliver her clients’ supplementary material by tomorrow afternoon. She proposes to deliver her clients’ factum by Friday noon. Mr. Goldblatt would then need some further brief time to deliver his client’s proposed motion to intervene. That leaves the responding parties two days or less over the weekend to respond to six motions and the main injunction motion.

[23] The respondents are being deprived of any real ability to think about and respond to the intervention motions in a considered way. They have no time to respond with evidence or to exercise their prima facie right to cross-examine on the motions to intervene.

[24] In my view, the piling on proposed is unfair given the time urgency involved. It would be unfair to expect a minute of the respondents’ two weekend days to be spent dealing with whether any of six others who choose not to be an applicant or plaintiff in its own right should be allowed to intervene in an urgent motion. It would be unfair to deprive the respondents of their ability to respond to the interventions in a considered manner. It would be unfair to deprive them of their procedural rights to respond and cross-examine.

[25] Mr. Alexandrowicz confirmed that his clients seek no relief on the OSSTF’s motion. In my view, the proposed intervenors can wait for a proceeding to be commenced and bring their motions on a less urgent basis should the matter continue beyond Monday in the event that they ever do seek relief in the proceeding.

[26] The motion is being scheduled on a day in which not all scheduled matters can be reached already. A scheduled matter will likely be bumped by this proposed motion. That is fine as it is urgent. Six intervention motions are not. There is no time and no real need for the motions or six extra sets of submissions. The law of interlocutory injunctions in constitutional cases is very well-known.

[27] Finally, in my view, the OSSTF needs to commence its proceeding now. It cannot throw the proverbial kitchen sink to see what sticks. An originating process can be a very brief document. If an action is brought, a notice of action is little more than a prayer for relief. Neither a notice of action nor a notice of application requires anything like the full factual and legal recitations in the notice of motion. But the OSSTF needs to decide if it is moving for judicial review. It must articulate with clarity the final relief it seeks and the legal basis for that relief. The responding parties and the judge are entitled to understand the precise issues asserted. The judge needs to know the main issues to determine a just and appropriate interlocutory remedy pending the determination of those final issues.

[28] The OSSTF shall deliver all its remaining evidence by 4:00 p.m. on Thursday, April 15, 2021. It shall deliver its factum by noon on April 16, 2021. The responding parties shall deliver their evidence by 2:00 pm on Sunday, April 18, 2021 and shall make best efforts to deliver their factum Sunday.

[29] All material is to be filed through the Civil Submissions Online portal. It is also to be uploaded to Caselines despite the fact that it will not yet be formally received by the registrar through the portal.

[30] If the OSSTF commences an action or an application before this court before noon on Friday, April 16, 2021, I schedule the hearing of its motion for an interlocutory injunction for Monday, April 19, 2021 at 10:00 a.m. by videoconference. I do not schedule any motions to intervene in the motion for hearing that day. The motions can be brought if the matter proceeds past the interlocutory injunction.

[31] If the OSSTF issues a notice of application for judicial review or moves under s. 6(2) of the JRPA, then it shall contact the Divisional Court ASAP to schedule an urgent hearing as may be available before that court.

[32] If OSSTF chooses to proceed by judicial review or otherwise declines to commence a proceeding in this court by noon on April 16, 2021, its counsel is directed to advise the Motions Coordinator that the time reserved for Monday, April 19, 2021 on an urgent basis is no longer needed.

F.L. Myers J.

Date: April 14, 2021