COURT FILE NO.: CV-21-113

DATE: 20210520

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2235477 Ontario Inc. operating as The Fit Effect and Nick Hayward, Applicants

AND:

Brant County Board of Health and Dr. Malcolm Lock, Respondents

BEFORE: Justice D.A. Broad

COUNSEL: R.P. O’Connor, for the Applicants

Douglas O. Smith, Christine Laviolette and Neva Lyn-Kew for the Respondents

Ian J. Perry for the Intervenor Autism Society Canada

HEARD: May 14, 2021

ENDORSEMENT

The Parties

[1] The applicant 2235477 Ontario Inc. operates a gym and indoor fitness facility in Paris, Ontario, in the County of Brant, under the business name The Fit Effect (“The Fit Effect”). The applicant Nick Hayward (“Mr. Hayward”) is the principal of The Fit Effect. He has over 25 years’ experience and success as a fitness and strength training coach, and as a trainer, athlete, fitness enthusiast, and advocate for those experiencing disabilities.

[2] The respondent Brant County Board of Health (the “BCHU”) is one of 34 health units in Ontario, as established by the Health Protection and Promotion Act, R.S.O. 1990 c. H.7 (the “HPPA”), serving a population in excess of 136,000 people in Brant County and the City of Brantford.

[3] The respondent Dr. Malcolm Lock (“Dr. Lock”) is a medical doctor, duly licensed to practice medicine in the Province of Ontario and, as of April 6, 2021, is the Acting Medical Officer of Health (the “MOH”) for the BCHU, appointed by the BCHU pursuant to s. 69 of the HPPA. Dr. Lock first served the position of Acting Medical Officer of Health for Brantford and Brant County from 2002 to 2005. From May of 2007 to 2018, he also served as the Acting MOH for Haldimand/Norfolk Counties. He was the MOH for the BCHU for 16 years until his retirement at the end of September 2019.

Background

[4] On April 7, 2021, the Province of Ontario issued O. Reg 265/21 under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “EMCPA”), declared a second state of emergency related to the COVID-19 pandemic (the first having been declared on March 17, 2020), and issued a province-wide stay-at-home order, which imposed various stringent measures limiting mobility of individuals, restrictions on indoor and outdoor gatherings and restrictions on travel from Manitoba or Québec.

[5] Pursuant to the provisions of O. Reg, 82/20, originally promulgated under the EMCPA and continued under the Re-Opening Ontario (a Flexible Response to COVID-19) Act, S.O. 2020, c. 17 (the “ROA”) which came into effect on July 24, 2020, a facility for indoor or outdoor sports and recreational fitness activities may open if it meets certain criteria. These include that the facility be open solely for the purposes of allowing use of the facility by persons with a disability, within the meaning of the Accessibility for Ontarians with Disabilities Act 2005, S.O. 2005, c. 11 (the “AODA”), who have received a written instruction for physical therapy from a regulated health professional and who are not able to engage in the physical therapy elsewhere. A facility for indoor sports and recreational fitness activities may also be open where the facility is used solely for the purpose of providing space for mental health support or addiction support services.

[6] Section 45 (1)(4)1 of Schedule 7 to O. Reg. 82/20 provides as follows:

(4) A facility for indoor or outdoor sports and recreational fitness activities may, but is not required to, open if it meets the following conditions:

1. The facility must be open solely for the purpose of allowing use of the facility by,

i. persons with a disability, within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005, who,

A. have received a written instruction for physical therapy from a regulated health professional who is qualified to provide the instruction, and

B. are not able to engage in the physical therapy elsewhere,

ii. such staff as are strictly necessary to operate the facility and support the provision of the physical therapy, and

iii. such support persons or service animals as may be necessary for the person with a disability.

[7] While the provisions of O. Reg. 82/20 that deal with mental health services place a cap on the capacity of a facility at 10 people, the provisions dealing with the use of the facility by persons with a disability are silent with respect to the permitted capacity.

[8] Subsections 2(1) and (2) of Schedule 1 of O. Reg 82/20 (which is entitled “General Rules for Shutdown Zone”) provide as follows:

2. (1) The person responsible for a business or organization that is open shall ensure that the business or organization operates in accordance with all applicable laws, including the Accessibility for Ontarians with Disabilities Act, 2005 and the Occupational Health and Safety Act and the regulations made under them.

(2) The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

[9] By a four-page letter dated April 27, 2021, issued to all indoor sports and recreational facilities within the City of Brantford and the County of Brant (the “Instruction Letter”), Dr. Lock gave “advice, recommendations and instructions” to take effect on April 29, 2021.

[10] The Instruction Letter, inter alia, imposed at paragraph 1(f) a requirement that “the capacity limit for the facility must be limited to the number of patrons who can physically distance by 3 metres and in any event, cannot exceed 5 persons including staff.” (Underlining added)

[11] The Instruction Letter also stated that, as per the ROA, individuals who do not comply with the requirements may be liable for a fine up to a maximum of $100,000 or, in the case of a corporation, not more than $10,000,000 for each day or part of each day on which the offence occurs or continues. It also provided that the instructions shall remain in effect until revoked.

[12] Following receipt of the Instruction Letter, Mr. Hayward formed the view that the restrictions contained within it – particularly the limit of 5 persons including staff entitled to be in a facility – made it impossible to operate his facility and, as a consequence, he closed The Fit Effect effective April 29, 2021.

The Application and Motion for an Interlocutory Injunction

[13] By Notice of Application issued April 30, 2021, The Fit Effect and Mr. Hayward (the “Applicants”) applied for the following orders against BCHU and Dr. Lock (the “Respondents”):

(a) an order quashing the advice, recommendations, and instructions contained in the Instruction Letter;

(b) an order declaring the advice, recommendations, and instructions contained in the Instruction Letter to be ultra vires the Respondents and therefore of no force or effect;

(c) an order declaring that the advice, recommendations and instructions contained in the Instruction Letter are inconsistent with sections 1 and 47 of the Human Rights Code, R.S.O. 1990, c. H.19;

(d) an order directing the Respondents to provide detailed reasons, including, inter alia, the evidentiary basis, for their decision to issue the advice recommendations and instructions contained in the Instruction Letter; and

(e) such interim injunctive and/or permanent relief as may be sought.

[14] By Notice of Motion dated May 4, 2021, the Applicants moved for interim relief and/or an interim interlocutory injunction prohibiting the Respondents from enforcing the advice, recommendations and instructions contained in the Instruction Letter.

[15] The stated grounds for the motion for interim and/or injunctive relief are that the advice, recommendations and instructions contained in the Instruction Letter are ultra vires the Respondents, were issued in bad faith, are arbitrary, and are inconsistent with the Human Rights Code.

Disposition

[16] The motion for an interlocutory injunction was argued on May 14, 2021.

[17] On May 17, 2021, I released a brief Endorsement dismissing the motion with written Reasons to follow. The following are those Reasons.

Authority and Test for the Granting of an Interlocutory Injunction

[18] The court’s authority to grant an interlocutory injunction or mandatory order derives from s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted, or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

[19] The traditional test for the granting of an interlocutory injunction was stated in the case of RJR-MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385:[^1]

1. the plaintiff must establish a serious question to be tried;

2. the plaintiff must show that it will suffer irreparable harm if the injunction is not granted; and

3. the balance of convenience favours the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.

[20] Notwithstanding acceptance of the general rule that a plaintiff need only establish a serious question to be tried, an exception was recognized by the Supreme Court of Canada in RJR-MacDonald, at p. 403, for a case where the result of the interlocutory motion will in effect amount to a final determination of the action. In these situations, the “serious issue to be tried” test may be elevated to a “strong prima facie case” or a “strong chance of success” test: see Black v. City of Toronto, 2020 ONSC 6398, 152 O.R. (3d) 529, at para. 41.

[21] As observed by Justice Sharpe in his text Injunctions and Specific Performance, 2^nd ed., at para. 2.210, it is essential as a matter of justice that the strength of the case be the predominant consideration where, practically speaking, the result of the interlocutory motion will effectively finally determine the proceeding.

[22] The Supreme Court of Canada held in the case of R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196, that the elevated standard of “strong prima facie case” also applies where the injunction sought is mandatory in nature. Justice Brown put it as follows at para. 15:

In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR — MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”. The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR — MacDonald as “extensive review of the merits” at the interlocutory stage.

[23] The Applicants take the position that the “serious question to be tried” standard is applicable for the first prong of the test in the case at bar. They acknowledge that, in some circumstances, a higher standard may apply, but such instances are “exceedingly rare” (citing RJR-MacDonald, at p. 404) and do not arise in this case.

[24] The Respondents take the position that the “strong prima facie case” standard applies on two bases: first, that the result of the interlocutory motion will amount to a final determination on the merits; and second, that the injunction sought by the Applicants is mandatory in nature.

[25] I agree with the Respondents’ position that the outcome of the Applicants’ injunction motion will amount to final relief with respect to the enforceability of the advice, recommendations and instructions set forth in the Instruction Letter.

[26] It is clear that the Instruction Letter was issued in the context of the state of emergency and province-wide stay-at-home order which came into effect on April 7, 2021, in response to rapidly rising rates of infection, hospitalizations, including dangerously increased demand on hospital intensive care units, and the presence and impact of variants of concern of the virus that causes COVID-19 (“VOCs”). The advice, recommendations and instructions are therefore temporary in nature.

[27] Dr. Lock deposed in his affidavit in response to the motion that “the instructions are meant to be temporary and will be revoked or amended when indicators such as transmission rates and new case counts allow.”

[28] In this context, I accept the submission of the Respondents that it is highly likely that the circumstances of the pandemic will allow the instructions to be modified, if not lifted, by the time of the hearing of the Application. The determination of the interlocutory injunction motion will effectively amount to a final determination of the Application on its merits. It is noted that certainty is not required in this respect, but rather the question is whether this will be the “effective” result. In my view, indicated by Justice Sharpe in his text, the Court is called upon to adopt a practical, common sense approach to the question of whether the outcome of the interlocutory motion will be dispositive of the application.

[29] I therefore find that the “strong prima facie case” standard applies, calling upon the court to carry out a more extensive review of the merits, which will constitute the primary consideration on the motion. As provided in RJR-MacDonald, at p. 404, “when the second and third stages of the test are considered and applied the anticipated result on the merits should be borne in mind.”

[30] In light of the finding that the strong prima facie case standard applies based upon the interlocutory motion being effectively dispositive of the Application, it is not necessary to make a determination of whether the injunction sought by the Applicants, regardless of how it is framed, is mandatory in nature. However, in the event that I have erred in finding that the higher strong prima facie standard applies because the determination of the injunction will have the practical effect of resolving the litigation, the higher standard, in my view, also applies because the relief sought by the Applicant is properly characterized as a mandatory injunction: see Canadian Broadcasting Corp., at paras. 13–15.

[31] What the Applicant seeks is not, as they submitted, merely to prohibit the enforcement of the instructions of Dr. Lock, but to restore the pre-instruction status quo. As Brown J. noted in Canadian Broadcasting Corp., at para. 16,

… [u]ltimately, the application judge, in characterizing the interlocutory injunction as mandatory or prohibitive, will have to look past the form and the language in which the order sought is framed, in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, “what the practical consequences of the ... injunction are likely to be”. In short, the application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something.

[32] Functionally, requiring the Respondents not to enforce the instructions against the Applicants amounts to compelling them to revoke them or reissue different instructions. As such, the higher strong prima facie case standard ought to be applied.

Have the Applicants established a strong prima facie case?

[33] In their Factum, the Applicants contend that the advice, recommendations and instructions contained in the Instruction Letter

a) are ultra vires the Respondents;

b) were issued in bad faith;

c) arbitrarily targeted the Applicants; and

d) are inconsistent with the Ontario Human Rights Code, R.S.O. 1990, c. H.19.

(a) Are the advice, recommendations and instructions ultra vires the MOH?

[34] The stated grounds in the Notice of Application assert that no provision of the HPPA empowers a medical officer of health to issue “advice, recommendations, and instructions” of the nature contained in the Instruction Letter having binding effect on the operation of businesses, service providers or individuals.

[35] The grounds also assert that subsection 2(2) of Schedule 1 to O. Reg. 82/20 should be interpreted such that the clause “including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting” circumscribes the scope of the preceding clause, which requires persons responsible for a business that is open to operate in compliance with “the advice, recommendations and instructions of public health officials.” On this basis, the Applicants argue that the MOH lacked the power to promulgate the instructions set forth in the Instruction Letter because they go beyond issues of physical distancing, cleaning or disinfecting.

[36] The Applicants also assert that no provision of O. Reg. 82/20 delegates to a public health official the power to rewrite the provisions of the regulation concerning the operation of indoor fitness facilities set forth at s. 48(3.1).

[37] I am unable to accept these submissions.

[38] While O. Reg. 82/20 does not expressly authorize public health officials, including medical officers of health, to issue advice, recommendations and instructions to businesses and organizations that are allowed to be open during the stay-at-home order, I accept that such authority is clearly implicit in the language of s. 2 of Schedule 1, which requires businesses to operate “in compliance with advice, recommendations and instructions of public health officials.”

[39] The starting point for the proper interpretation of s. 2(2) of Schedule 1 to O. Reg. 82/20 is s. 64 of the Legislation Act, 2006, S.O. 2006 c. 21 Sch. F, which provides as follows:

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

[40] In my view, the restrictive interpretation which the Applicants seek to place on subsection 2(2) based on the use of the word “including” is not consistent with the requirement that the section be given such fair, large and liberal interpretation as best ensures the attainment of the objects of the regulation in the context of the ROA.

[41] Moreover, the Supreme Court of Canada has held that the word “including” should be given an expansive interpretation as a term of extension “designed to enlarge the meaning of preceding words and not to limit them” or “to make it clear that that category extends to things that might otherwise be expected to fall outside it”: see National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 S.C.R. 1029, at p. 1041; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80, at para. 71.

[42] Black’s Law Dictionary, 9^th ed., states that “the participle including typically indicates a partial list (e.g. the plaintiff asserted five tort claims, including slander and libel) – but some drafters use phrases such as including without limitation and including but not limited to – which mean the same thing.”

[43] Moreover, the use of the word “any” before the words “advice, recommendations or instructions on physical distancing, cleaning or disinfecting” clearly indicates that a public health official may validly give advice, recommendations or instructions that touch on matters other than physical distancing, cleaning or disinfecting.

[44] I am unable to find any intention on the part of the drafters of the regulation to circumscribe the power of public health officials to issue advice, recommendations or instructions in the manner suggested by the Applicants.

[45] I am not satisfied that the Applicants have shown a strong prima facie case that the advice, recommendations and instructions in the Instruction Letter were ultra vires the Respondents.

(b) Was the Instruction Letter issued in bad faith?

[46] As part of the stated grounds for an interlocutory injunction in the Notice of Motion, the Applicants assert that the Respondents have used the Instruction Letter as a bald attempt to close, or effectively close, businesses which are otherwise legally operating pursuant to the requirements of O. Reg. 82/20, in response to misplaced complaints from members of the public and competitors of those businesses to which the Instruction Letter is directed, and that this constitutes an improper purpose.

[47] An allegation of bad faith on the part of a public official such as a medical officer of health is a very serious matter.

[48] In support of the claim that Dr. Lock issued the Instruction Letter in bad faith, the Applicants rely upon various interactions that Mr. Hayward had with by-law officials and Brant County Health Unit personnel who attended at The Fit Effect facility to conduct inspections and to determine compliance with Ontario law. The evidence indicated that these attendances were in response to complaints received by the BCHU.

[49] None of the interactions described by Mr. Hayward were with Dr. Lock. The Applicants seek to have the court draw an inference from the interactions with by-law officials and Health Unit Inspectors that Dr. Lock issued the advice, recommendations and instructions not to seek to protect the public against the spread of COVID-19, but to attempt to close businesses, including the Applicants’ business, in response to complaints from members of the public and competitors.

[50] As noted in the recent case of Pedigree Poultry Ltd. v. Saskatchewan Broiler Hatching Egg Producers Marketing Board, 2020 SKQB 100, at para. 231, what constitutes bad faith by a public officer was canvassed by the Supreme Court of Canada in Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 SCR 304, at para 26, where Deschamps J. found as follows:

[T]he concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith.

[51] Dr. Lock deposed that the Instruction Letter was issued in a good faith attempt to protect the public from the very real and ongoing threat of COVID-19 and the new VOCs, based on the ever-evolving state of knowledge about its spread. Moreover, he deposed that the instructions were not issued to target any one particular facility, nor with the intention of causing the Applicants in particular to cease their operations. Rather, the Instruction Letter was issued with the intention of having all facilities similar to and including the Applicants’ operate more safely.

[52] Dr. Lock also deposed that he understands and believes that the risk of COVID-19 transmission at an event or gathering depends on a number of factors, including the number of people attending, adherence to physical distancing, mask wearing, duration of the event or gathering, ventilation, whether there is forceful exhalation or high volume talking, and background infection rates in the communities from which the gathering’s attendees are drawn. He believes that limiting the capacity of fitness facilities addresses a number of these factors.

[53] Dr. Lock deposed that he became aware that very similar instructions had been issued previously by the Medical Officer of Health in Durham Region, with whom he consulted prior to issuing the Instruction Letter. Dr. Lock’s instructions were modelled on the Durham instructions.

[54] Dr. Lock forwarded a copy of the Instruction Letter to Dr. David Williams, the Chief Medical Officer of Health for the Province of Ontario. He deposed that he has received no correspondence from Dr. Williams or anyone on his behalf expressing any concern with the approach taken by him.

[55] As established by Entreprises Sibeca Inc. v. Frelighsburg (Municipality), the standard that a claimant must meet to prove bad faith by a public official is a high one. Speculation and subjective belief are not sufficient. Neither is disagreement with the impugned decision or action.

[56] I am unable to conclude that the Applicants have shown a strong prima facie case that Dr. Lock, in issuing the advice, recommendations and instructions, deliberately intended to harm the Applicants or acted in a manner so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that his actions were performed in good faith.

(c) Did the instructions arbitrarily target the Applicants?

[57] The Applicants further allege that the instructions arbitrarily targeted their business. In support, they highlight that no other instruction has been issued with respect to any other business in the Health Unit.

[58] The Respondents submit that no other like instructions have been issued to other business sectors because COVID-19 transmission risk factors include close contact, prolonged exposure, forceful exhalation, and crowded places. All of these risk factors are frequently present during exercise at a designated facility. They further note, as indicated above, that the instructions are modelled after similar guidance provided by the Acting Medical Officer of Health for Durham Region and were, in fact, made after discussion with Dr. Lock’s counterpart in Durham.

[59] The question of arbitrariness in the context of COVID-19 health policy has been recently considered by the Divisional Court in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335, 448 D.L.R. (4th) 415 (Div. Ct.). The court was called upon to determine whether a hospital’s visitor policy was arbitrary. The court held at para. 48 that “an arbitrary rule is one that is not capable of fulfilling its objective and exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law.” The court went on to conclude that policy would only be arbitrary if there was no link between the decision to restrict visitors and the severe health outcomes of being unable to limit the spread and contagion of the virus.

[60] Similarly, in Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711, the Divisional Court again addressed the issue of arbitrariness, albeit when reviewing a s.22 HPPA order regarding limits on the number of migrant workers who could be sheltered in a single bunkhouse. In the context of the COVID-19 crisis and the risk of overwhelming medical resources, the court found as follows at para. 101:

Any steps that may reduce that risk are not arbitrary – they are logically connected to the purpose of the HPPA, which is to “provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario.”

[61] These authorities demonstrate that a party alleging that a public health measure aimed at reducing transmission of COVID-19 is arbitrary faces a significant hurdle. Provided that the steps taken are logically connected to the purpose of the enabling legislation or regulation, even if they are oriented toward risk reduction rather than an extant outbreak in the community, they are not arbitrary. As noted by the court in Schuyler, at para. 108, a precautionary approach “embodies the principle that reasonable action to reduce risk should not await scientific certainty or proof” and “is and should be at the core of public health practice when dealing with a new disease such as COVID-19.”

[62] In light of the foregoing discussion, I cannot conclude that the Applicants have made out a strong prima facie case that the instructions are arbitrary.

(d) Are the instructions contrary to the Human Rights Code?

[63] In the Notice of Application, the Applicants allege that the instructions were also contrary to the Human Rights Code because they, in effect, deny or restrict services otherwise available to the disabled community and infringe their statutory right to be free from discrimination.

[64] The difficulty with this submission is that, even before considering the merits, the Applicants face the issues of standing and jurisdiction of the Court grant injunctive relief arising from an alleged infringement of the Human Rights Code.

[65] The harms identified by the Applicant with respect to this issue are not theirs to raise. The harms suffered by individual members of The Fit Effect are distinct from the harms suffered by The Fit Effect and Mr. Hayward. Fundamentally, the relationship between The Fit Effect and persons utilizing its services is that of business and client. None of the disabled members of The Fit Effect are parties to this proceeding.

[66] Moreover, the applicants have not pointed to any statutory authority for the Superior Court of Justice to grant a civil remedy to a person or entity arising from an alleged breach of Part 1 of the Human Rights Code apart from an order requiring an infringing party to pay compensation to a party whose right was infringed pursuant to subsection 46.1(1). It is noted that subsection (2) stipulates that subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part 1. The applicants have cited no authority supporting any jurisdiction of the court to grant injunctive relief for an alleged infringement of Part 1 of the Code.

[67] Although the Code does not confer authority on the court to grant injunctive relief for a breach of Part 1, by contrast it does, by subsections 45.2(1) and 45.3(1), confer broad power on the Human Rights Tribunal of Ontario to make an order directing any party to an application to the Tribunal to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

[68] On the basis of the foregoing, the Applicants have not made out a strong prima facie case grounded in an alleged beach of the Human Rights Code.

Have the Applicants suffered irreparable harm?

[69] The second branch of the test requires that the litigant seeking injunctive relief would, unless the injunction is granted, suffer irreparable harm. As the court explained in RJR-MacDonald, at p. 405, “‘irreparable’ refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.”

[70] The Applicants submit in their Factum that central to the question of irreparable harm is that the harm to the Applicants themselves cannot be divorced from the broader harm to those members of the Applicants’ fitness facility or the community at large, given the serious health ramifications associated with the effect of closure of the Applicants’ facility.

[71] The Applicants have cited no authority for the proposition that the applicant on a motion for an interlocutory injunction may satisfy the requirement for irreparable harm based upon alleged harm to others who are not parties to the proceeding and who seek no relief from the court. RJR-Macdonald makes it clear that irreparable harm in this context refers exclusively to the harm to be suffered by the applicant itself if the injunction is not granted. The court specifically rejected, at p. 405, consideration of the harm that might be suffered by the respondent should the injunction be granted at the second part of the test, on the basis that it is more appropriately dealt with in the third part of the analysis along with any alleged harm to the public interest.

[72] The applicant The Fit Effect does submit that it has suffered and will continue to suffer loss of revenue should the injunction not be granted. It says that given the statutory quasi-constitutional human rights engaged, even quantifiable financial loss may be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of the decision on the merits, drawing an analogy to Charter cases referred to in RJR-MacDonald.

[73] In my view, the analogy which the Applicants seek to draw to Charter cases is not persuasive. At p. 406 of RJR-MacDonald, the court noted the following:

The assessment of irreparable harm in interlocutory applications involving Charter rights is a task which will often be more difficult than a comparable assessment in a private law application. One reason for this is that the notion of irreparable harm is closely tied to the remedy of damages, but damages are not the primary remedy in Charter cases.

[74] By contrast, s. 46.1 of the Human Rights Code provides that, in a civil proceeding in a court, the court may make an order directing monetary compensation to the party whose right under Part I of the Code was infringed, provided the action was not based solely on the infringement under Part I.

[75] The intervenor Autism Canada submits that access to sports and recreational services for physical therapy that is free from exclusionary barriers is a protected right in Ontario. The additional restrictions enforced by the Respondents create undue hardships to key service providers, such as The Fit Effect, in the community. It submits that there will be irreparable harm if an injunction is not granted. Without access to fitness services, individuals with disabilities will suffer a loss of quality of life and may even regress in their prognosis. Autism Canada points out that monetary compensation is not a viable remedy in these circumstances.

[76] O. Reg 82/20 provides specific recognition of the importance of continued provision of physical therapy opportunities in fitness facilities for individuals with disabilities who satisfy the enumerated criteria. The fact that the advice, recommendations and instructions in the Instruction Letter led Mr. Hayward to his decision to close The Fit Effect, thereby reducing the availability of physical therapy options to persons with disabilities in Brant is lamentable. The impact of this on persons with autism spectrum disorder, in particular, has been forcefully and articulately expressed by Mr. Perry in his Factum and oral submissions. However, the existence of these effects does not, in my view, confer on the Applicants the legal right to rely upon harm suffered by others to support their own claim of irreparable harm in the context of their claim for interlocutory injunctive relief.

[77] In my view, the Applicants have not shown that they will suffer irreparable harm that is not compensable in damages should the injunction not be granted.

Does the balance of convenience favour the granting of the injunction?

[78] The third branch of the test for injunctive relief calls for a determination of which of the two parties will suffer the greater harm from the granting of a refusal to grant interim and interlocutory injunctive relief pending a decision on the merits: see RJR-MacDonald, at P. 406.

[79] The Court in RJR-MacDonald, at p. 407, with specific reference to interlocutory Charter cases, stated that it is open to both parties to rely upon considerations of the public interest. In addition to making the court aware of the damage it may suffer prior to a decision on the merits, either party is entitled to seek to tip the scales of convenience in its favour by demonstrating compelling public interest in the granting or refusal of the relief sought. “Public interest” can include both the concerns of society generally and the particular interests of identifiable groups: see RJR-MacDonald, at p. 408.

[80] At p. 409, the Court gave special recognition to public authorities in reference to the proof of irreparable harm:

In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

[81] The Court commented as follows by way of summary at p. 411:

When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

[82] Both sides in the case at bar maintain that consideration of the public interest tips the scale of convenience in their favour. The Applicants characterize the harm to the public with respect to the possible spread of COVID-19 in the community relied upon by the Respondents as speculative, whereas the removal of access of disabled clients to the Applicants’ fitness facility will result in very real harm to their health and well-being.

[83] In support of their claim that the balance of convenience favours the granting of an injunction, the Applicants also submit that the Instruction Letter was issued as result of a misunderstanding on the part of Dr. Lock with respect to the capacity limits imposed on businesses, organizations and services legally operating during the pandemic. They point out that s. 3(1) of Schedule 1 to O. Reg. 82/20 provides for a capacity limit in respect of facilities that are open to the public of 50%, distanced at 2 meters according to the formula at subsection 3(2). The Applicants submit that it was presumably a matter of regulatory design that an indoor fitness facility serving the therapeutic needs of persons with disabilities would have the same capacity restrictions as other settings in which health is promoted or healthcare provided.

[84] The Respondents point out that the Province issued interpretive guidance in respect of O. Reg. 82/20 on its webpage entitled “Guidance for facilities for sports and recreational fitness activities during COVID-19 provincewide shutdown for persons with disabilities”. This publication, after reciting that a person with a disability who has written instruction would be permitted to engage in physical therapies in indoor and outdoor facilities, specifically provided that such persons and facilities would be required to follow all public health instructions. The publication went on to specify that public and private facilities for indoor and/or outdoor sports and recreational fitness activities must operate in compliance with the advice, recommendations, and instructions of local and provincial public health officials, “including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting, masking, screening, and capacity limits” [emphasis added].

[85] The entitlement of the court to consider such extrinsic evidence in interpreting subordinate legislation was made clear by the decision of the Alberta Court of Appeal in Heppner v. Alberta (Ministry of Environment) (1977), 1977 ALTASCAD 206, 80 D.L.R. (3d) 112 (Alta. C.A.), at pp. 118–19, citing LaRush v. Metropolitan Toronto & Region Conservation Authority (1968), 1967 CanLII 333 (ON CA), 1 O.R. 300 (C.A.).

[86] It is evident from the foregoing that the Province, in promulgating O. Reg. 82/20, anticipated that local and provincial public health officials may impose instructions respecting capacity limits on facilities offering indoor and/or outdoor sports and recreational fitness activities which are more stringent than the 50% capacity limit having application to legally-operating businesses, organizations and services which are open to the public.

[87] The Respondents submit that it cannot be contested that the Instruction Letter was created to protect the health and safety of the people of Brant County and the City of Brantford and the decision to issue the temporary instructions to these facilities was made in light of the risks posed by physical exercise, the high rate of community transmission of VOCs and the potential impact of any further increase in the COVID-19 rates on public health and hospital capacity.

[88] The Divisional Court in Sprague observed at para. 45 that it is not the court’s role to re-weigh complex and often difficult factors, considerations and choices that must be evaluated by a hospital administration during a pandemic. The Court noted that the hospital in that case has enormous expertise and specialized knowledge, and significant deference must be afforded to the hospital in the circumstances. In my view, the same observations may be made with respect to health units and medical officers of health.

[89] In Schuyler Farms Limited, the Divisional Court stated the following at para. 114:

It is important to note that while the pandemic is having a widespread financial impact, neither the MOH nor any level of government has caused this public health crisis or its financial impact. Rather, the MOH is fulfilling his statutory mandate to protect public health in the face of an unprecedented worldwide health crisis,

[90] In my view, these comments are equally applicable to the case at bar.

[91] In considering where the balance of convenience lies, it is important to recognize that the advice, recommendations and instructions issued by Dr. Lock are temporary, and will be of no force or effect once the province wide lockdown is lifted.

Conclusion

[92] In weighing the three branches of the applicable test – strong prima facie case, irreparable harm and balance of convenience – with the strength of the case being the predominant consideration, I find that the motion for an interlocutory injunction must be dismissed.

[93] As noted in my brief Endorsement of May 17, 2021, the Respondents reserved their right, if successful, to seek costs of the motion at the completion of the application.

[94] Costs of the motion, as between the Applicants and the Respondents, are therefore reserved to the judge hearing the application.

[95] I wish to thank and commend all counsel for their very thorough preparation of materials under very tight timelines and for their very helpful submissions.

D.A. Broad, J.

Date: May 20, 2021

[^1]: RJR-MacDonald herein cited to DLR