ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Marcus Bowen, Bruce Da Silva, Shirley Dorsch, Zorka Milovanov, Paul Lawson, Peter Locs, Brent Peltier, Nick Piedigrossi, Melissa Shields, Julie Tiessen and Aneta Zaszkowska
I. Perry, for the Applicants/Responding Parties
Applicants/ Responding Parties
- and -
City of Hamilton
D. Jeffries and D. Search, for the Respondent/Moving Party
Respondent/Moving Party
HEARD: at Hamilton on September 26, 2022
The Honourable Mr. Justice J. R. Henderson
REASONS FOR DECISION
The Mandatory COVID-19 Vaccination Verification Policy (“the vaccination policy”) of the City of Hamilton (“the City”) requires all employees of the City to provide proof that they have been fully vaccinated against COVID-19 or provide proof of a valid medical exemption.
The initial vaccination policy was implemented on August 26, 2021, but the policy has since been the subject of amendments. One of the amendments included provisions that any employee who failed to comply with the vaccination policy on or before a specific date would be terminated from their employment with the City (“the termination provisions”).
The applicants are 11 non-unionized employees of the City, all of whom are subject to the vaccination policy. In this application, the applicants request, inter alia, declarations that the termination provisions of the vaccination policy constitute a violation of the applicants’ human rights, their rights to privacy, and their rights to bodily integrity, contrary to s.7 and s.12 of the Canadian Charter of Rights and Freedoms. The applicants request that the court quash the vaccination policy and declare that the termination provisions are of no force and effect.
The application record was served on August 3, 2022. On August 12, 2022, the City amended the vaccination policy by suspending certain sections of the policy, including the termination provisions.
The City now brings this motion for an order that the application be dismissed on the basis that it is moot. The City submits that there is no longer any live controversy between the parties as the contentious sections of the vaccination policy are not in effect.
In the alternative, the City requests that the application be dismissed pursuant to rule 21.01 and rule 25.11 on the basis that it is frivolous, or an abuse of process, or has no reasonable prospect of success. In the further alternative, if the application is not dismissed, the City requests that the application be converted into an action pursuant to rule 38.10.
The applicants submit that the application is not moot. Although the termination provisions are currently suspended, the applicants submit that the provisions continue to exist and could be reinstated at any time in the future. In the alternative, if the application is moot, the applicants request that the court exercise its discretion to hear the case. The applicants also contest the alternative requests of the City.
THE FACTUAL BACKGROUND
On August 26, 2021, the City passed the initial vaccination policy, known as Policy No. HR-66-21, which was entitled “Mandatory COVID-19 Vaccination Verification Policy”.
The purpose of the initial vaccination policy is set out on its first page as follows: “The purpose of this policy is to outline the City of Hamilton’s requirement with regard to COVID-19 vaccination and provide direction to employees on the requirement to receive the COVID-19 vaccination, provide proof of vaccination or a bona fide exemption and conditions for attending work without vaccination.”
In summary, the initial vaccination policy directed all employees to provide proof that they had received all required doses of a COVID-19 vaccine approved by Health Canada, or proof of a medical exemption. Compliance with the policy was mandatory and non-compliance was subject to possible discipline. The initial vaccination policy did not provide a date for compliance with the policy, nor did it provide any termination provisions.
On January 12, 2022, the initial vaccination policy was amended to provide that all employees must comply with the policy by May 31, 2022. That amendment included the termination provisions that stated that any employee who failed to provide proof of being fully vaccinated, or an approved exemption, by the compliance date would be terminated from their employment with the City. The compliance date was later amended to September 30, 2022.
After the application record in this proceeding was delivered, on August 12, 2022, the City amended the vaccination policy to indefinitely suspend some sections of the policy including the termination provisions.
THE LAW REGARDING MOOTNESS
The leading case on the doctrine of mootness is Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] S.C.J. No. 14, 1 S.C.R. 342. In that case the Supreme Court of Canada dealt with the question of whether the court should hear the appellant’s appeal of his unsuccessful request for a declaration that s.251 of the Criminal Code constituted a violation of the Charter, considering that all of s.251 had been struck out in another proceeding.
At paras. 15-16 of the Borowski decision, Sopinka J. wrote the following:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. … Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. ….
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case…. I consider that a case is moot if it fails the “live controversy” test…
At paras. 31-40, Sopinka J. set out three factors for the court to consider in determining whether it should exercise its discretion to hear a moot case. Those three factors are: (a) the ongoing presence of an adversarial context, (b) the concern for judicial economy, and (c) the court’s traditional role as the adjudicative branch in our political system.
IS THE APPLICATION MOOT?
The test at the first step of the analysis is to determine whether there is a live controversy. There is no live controversy where a decision on the merits would have no practical effect on the parties’ rights. Further, the court will not decide an abstract proposition of law in the absence of a real controversy. It must be remembered that courts exist to resolve tangible and concrete disputes; courts do not provide opinions in response to hypothetical problems. See the decision in Stewart v. Office of the Independent Police Review Director, 2013 ONSC 7907 at paras 18-19.
In my view, in the present case there is no current tangible and concrete dispute between the applicants and the City. The only dispute is a hypothetical one that may or may not occur at some future date if the City chooses to reinstate the termination provisions of the vaccination policy.
In argument, counsel for the applicants submitted that the vaccination policy remains in effect, but for the termination provisions, and therefore there remains a dispute between the parties. However, I find that the applicants did not challenge the vaccination policy as a whole in the application record; rather, the applicants challenged the termination provisions of the vaccination policy, which are no longer in effect.
Further, there is no evidence that any of the applicants have suffered any adverse consequences arising out of the vaccination policy. None of the applicants have been wronged and there is no immediate threat or expectation that any of the applicants will be wronged. In summary, the applicants’ position is that they will be wronged in the future if the City does something to reinstate the termination provisions.
Thus, I find that there is no live controversy between the parties.
The only other point raised by the applicants on this issue is that the termination provisions have not been revoked, but only suspended. Therefore, counsel for the applicants submits that there remains a threat that the City may choose to reinstate the termination provisions. In my view, this argument reinforces the hypothetical nature of the dispute. The applicants may be worried or concerned that the City may do something in the future that would be harmful to them. However, the future is uncertain. The courts do not offer opinions based upon speculation as to what one party might do in the future.
For all of these reasons, I find that the application is moot.
SHOULD THE COURT EXERCISE ITS DISCRETION?
Generally, a court will not hear a matter that is moot. The onus is on the applicants in this case to demonstrate why the court should exercise its discretion to hear this moot application.
The court in Borowski set out three factors for the court to consider in determining whether it should exercise its discretion. I find that all three factors favour the City in this case.
Regarding the presence of an adversarial context, I find that the City’s suspension of the termination provisions has substantially reduced the adversarial tension between the parties. I accept that there remains a general distrust of the City by the applicants, but that does not mean that the parties are adversaries. Moreover, if a court were to force the parties to litigate the validity of a suspended policy, the court would in fact be forcing the parties into an unnecessary adversarial battle. Therefore, this factor clearly weighs against the court hearing this moot case and favours a dismissal of the application.
The second factor, judicial economy, also clearly favours the dismissal of the application. I find that if the application were to continue it would be complex and it would involve controversial evidence with respect to scientific knowledge, the nature of the pandemic, and the efficacy of vaccinations. Such a case would be a strain on judicial resources.
Regarding the third factor, the court’s role as an adjudicative body, I find that in the context of labour relations, the court should be resolving concrete disputes rather than attempting to write or legislate conditions of employment. The court’s usual role is to resolve controversial conditions of employment only when a party alleges that they have suffered damages as a consequence of those conditions.
On this issue I have also considered the applicants’ submission that the court’s opinion regarding the validity of the vaccination policy in this case would be important and beneficial to the public. Given the ongoing state of the COVID-19 pandemic and the likelihood that many organizations have, or will have, COVID-19 vaccination policies, the applicants urge me to allow the application to proceed.
I acknowledge that there may be public interest in the court’s view on vaccination policies. I accept that COVID-19 vaccination policies are recent inventions and that there is little caselaw on point. However, I repeat my earlier comment that any opinion given by this court on the suspended termination provisions would be a hypothetical opinion.
I find that there are several future scenarios that would render any hypothetical opinion ineffective or of little value. Specifically, I find that the suspended termination provisions may never be reinstated by the City, and therefore any decision today would be of no effect. Further, even if the City decided to reinstate the termination provisions, the City may choose to do so using different wording or different conditions or different exemptions for both the termination provisions and the vaccination policy itself. In those circumstances any decision today on the current suspended provisions would be of no use to the public.
Still further, if and when the City reinstated the termination provisions it might choose to do so several months or years into the future. At that point, the policy would have to be considered in the context of the circumstances at that time. Any vaccination policy must be interpreted in light of the scientific knowledge and the state of the pandemic at the time it is assessed. Thus, again, any decision today would likely be of no use to the public at a future date.
For all these reasons, I will not exercise my discretion to hear this moot application.
CONCLUSION
I find that the application before the court is moot, and I decline to exercise my discretion to hear the moot application. Accordingly, the application is hereby dismissed.
Given my decision regarding mootness, I will not decide the other issues raised in the City’s motion.
If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at Hamilton within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.
J. R. Henderson J.
Released: October 21, 2022
COURT FILE NO.: CV-22-79373
DATE: 2022-10-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marcus Bowen, Bruce Da Silva, Shirley Dorsch, Zorka Milovanov, Paul Lawson, Peter Locs, Brent Peltier, Nick Piedigrossi, Melissa Shields, Julie Tiessen and Aneta Zaszkowska
Applicants/ Responding Parties
and
City of Hamilton
Respondent/Moving Party
REASONS FOR DECISION
J. R. Henderson J.
Released: October 21, 2022