Court File and Parties

COURT FILE NO.: CV-21-00087967-00OT

DATE: 20220211

ONTARIO SUPERIOR COURT OF JUSTICE

RE: PRANOY CHOWDHURY, Plaintiff

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendant

BEFORE: FL Myers J

COUNSEL: Pranoy Chowdhury, on his own behalf

Sean Hanley and Emily Owens, for the Defendant

HEARD: February 9, 2022

ENDORSEMENT

[1] This motion was delegated to me by the Regional Senior Justice of the Toronto Region before whom it was brought.

[2] Mr. Chowdhury has sued the government in Ottawa. He seeks to invalidate mandatory vaccination laws under the Charter of Rights and the Ontario Human Rights Code.

[3] The government asks for an order to move this action from Ottawa to Toronto Region. It then asks for directions that the Charter of Rights issues in the action be heard with a two-day application that is already scheduled to be heard in Toronto in July for much the same relief under the Charter of Rights.

[4] For the brief reasons that follow, the motion is dismissed.

[5] Mr. Chowdhury has brought this lawsuit by way of the “action” procedure. That is the familiar manner by which the bulk of lawsuits are commenced. It involves three distinct procedural stages – pleadings. discovery, and a trial. A trial involves the judge hearing live witness testimony.

[6] Mr. Chowdhury hopes to prove to the court that the law that bars him from attending restaurants, gyms, and other publicly-available places in Ottawa because he does not have a COVID-19 vaccine, violates his rights under ss. 2 (a), 7, 8, and 15 of the Charter of Rights. He claims that he is discriminated against based on his age and race. He also asserts rights under the Ontario Human Rights Code based on discrimination and adverse effect discrimination. He is looking for discovery of documents from the province to supplement and localize broader statistics and information that he has already obtained from the federal government.

[7] Another applicant or applicants have commenced a Charter challenge to the same vaccine law in Toronto. This legal proceeding is brought using the “application” procedure under Rule 14.05 of the Rules of Civil Procedure, RRO 1990, Reg. 194. The Toronto applicants do not make any claim under the Ontario Human Rights Code in their application.

[8] An application proceeds on written affidavit evidence of the parties and their witnesses. There can be examinations and cross-examinations of witnesses out of court to produce transcripts of their evidence. Then, there is a hearing before a judge on the affidavits and transcripts that make up a written evidentiary record. There is no live witness testimony or trial in an application.

[9] Parties can ask witnesses to produce relevant documents on an application. But there are important differences between cross-examinations in an application and examinations for discovery in an action. Similarly, asking a witness to produce documents is not the same as obtaining an affidavit (or list) of documents from the other party to an action.

[10] The Toronto application has been scheduled to be heard in July for two days. With the consent of the Toronto applicants, the government has left time in that schedule for Mr. Chowdhury to participate in the hearing to make his Charter arguments (but not the Ontario Human Rights Code arguments).

[11] There is a superficial attractiveness to having the Charter issues all heard together. But the desirability to avoid duplication and multiplicity requires more thorough consideration.

[12] Mr. Chowdhury says that his Charter arguments are based on allegations that he is being discriminated against based on his age and race. He believes the Toronto applicants are alleging that the unconstitutional discrimination is based on the applicants’ status as being unvaccinated. While his personal facts may be fairly straightforward, his social science facts may be quite different from those being put forward by the Toronto applicants.

[13] The facts on which Mr. Chowdhury relies under the Ontario Human Rights Code will likely be the same as the facts on which he relies for his Charter claims.

[14] If the Charter challenge succeeds, both cases will be over. But if it does not succeed, Mr. Chowdhury will be left to pursue his Ontario Human Rights Code claims in Toronto unless the case is then transferred back to Ottawa.

[15] Wherever it is heard, there will be a substantial duplication of evidence and risk of inconsistent verdicts as between the Charter and Ontario Human Rights Code cases. Of course, the outcome of the two need not be the same. But there is no telling now if the two judges would approach the same or similar issues the same way. There will always be two decisions being made on duplicated evidence.

[16] To achieve the joint Toronto hearing, the government asks me to transfer the action here, order the Charter issues to be heard on pre-trial evidence under Rule 36, and to stay the Ontario Human Rights Code issues pending the outcome. By trying to invoke Rule 36 (which is generally used to take evidence de bene esse), the government is trying to avoid characterizing the hearing in Toronto as motion for “partial summary

judgment”. It understands full well that partial summary judgment is not available when there is any risk at all of duplication or inconsistent verdicts as between the proposed motion and whatever will be left over for trial. [^1]

[17] The proposed hearing of Mr. Chowdhury’s action in Toronto will not be a trial. Rule 36 is not being used to take evidence before trial. The hearing will either be a motion for partial summary judgment under Rule 20 or a motion to determine a question of law under Rule 21. Neither is appropriate when duplication and a risk of inconsistent verdicts is built right into the procedural proposal.

[18] Moreover, Mr. Chowdhury is concerned that while the Toronto applicants may be well along the road to obtaining affidavits from expert witnesses, he has yet to obtain any documentary discovery from the government that he says he needs to make his fact-based claims. His expert evidence is not due until after the discovery process is completed.

[19] The government is not offering to provide expedited discovery to Mr. Chowdhury. In fact, I would not be at all surprised to see interlocutory disputes between Mr. Chowdhury and the government as to the scope of production to which Mr. Chowdhury is entitled. I heard issues discussed that raised concerns in my mind about the discoverability of some documents for example.

[20] While Charter cases are frequently brought by the application procedure, there is nothing wrong with doing so by action. A plaintiff who takes that route understands it may be slower and more expensive. But it has its advantages – like discovery of documents and oral examinations for discovery. An action is the preferred route if material facts are likely to be strongly disputed so that a trial is required. I am in no position today to find that there is no genuine issue requiring a trial.

[21] Moreover, there is no convenient way under the Rules to convert an action to an application. I cannot just transfer the Charter issues here and leave half the action in Ottawa. So, the government proposes a stay and then possibly a transfer back to Ottawa if the action will continue.

[22] Mr. Chowdhury understands that, at this time, a hearing will likely be conducted virtually. So he is not opposed to his case being heard by a judge sitting in Toronto. But he quite fairly opposes the loss of discovery rights and being squeezed into the time that others have left for him in their application.

[23] No one consulted with Mr. Chowdhury in the scheduling discussions for the Toronto application. He says he expects to need a day or more to argue his distinct Charter issues. He asks that the two day appointment in July be increased to four days if he is forced to participate here.

[24] The Toronto applicants are not before me to see how they feel about sharing more time with Mr. Chowdhury.

[25] Mr. Chowdhury’s action is not a throw-away to be tacked onto the case in Toronto. He has a statement of claim that has not been struck out. He is entitled to discovery and efficient, affordable resolution of his claims. While it might be convenient to the government to force him into the Toronto application, I do not see how it is fair to Mr. Chowdhury or available under the Rules of Civil Procedure.

[26] There is no connection between this application and Toronto Region. None of the factors in Rule 13.1.02 (2)(b) make it desirable in the interests of justice to transfer this action to Toronto Region.

[27] The motion is dismissed. If Mr. Chowdhury seeks costs he may deliver to counsel for the government and to my Judicial Assistant no more than three pages of submissions by February 18, 2022. The defendant may respond with no more than three pages of submissions delivered to Mr. Chowdhury and my Judicial Assistant by February 25, 2022. No case law is to be provided. References to case law shall be made by hyperlinks embedded in the parties’ submissions.

FL Myers J

Date:, February 11, 2022

[^1]: The Court of Appeal expressly rejected the notion that a motion judge has discretion to weight the risks of duplication and inconsistent verdicts against possible benefits of summary disposition in Mason v. Perras Mongenais, 2018 ONCA 978, at paras 40 and 41.