CITATION: Dorceus v. Ontario et al. 2024 ONSC 7087

COURT FILE NO.: CV-22-00685694

DATE: 20241218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelet Dorceus et al. (See schedule A for complete list of plaintiffs)

Rocco Galati for the plaintiffs other than Beth Ann Dick

R.P. O’Connor for Beth Ann Dick

Plaintiffs

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Ontario Premier Doug Ford, Former Minister of Health Christine Elliot, Current Minister of Health Sylvia Jones, Minister of Long Term Care Paul Calandra, Bayshore Healthcare, Belleville General Hospital, Brant Community Health Care System, Cambridge Memorial Hospital, Centre for Addiction and Mental Health, Chatham-Kent Health Alliance, The Corporation of the County of Essex, Community Living Windsor, Erie Shores HealthCare, Extendicare, Georgian Bay General Hospital, Grand River Hospital. Grey Bruce Health Services, Halton Healthcare Services Corporation, Hamilton Health Services Sciences, Home and Community Care Support Services (Toronto Central Local Health Integration Network, Mississauga Halton Local Health Integration Network, Erie St. Clair Local Health Integration Network, Hamilton Niagara Haldimand Brant Local Health Integration Network, South West Local Health Integration Network), Hospital for Sick Children, Hotel Dieu Grace Healthcare, Humber River Hospital, Huron Lodge Long Term Care Home The Corporation of the City of Windsor, Joseph Brant Hospital, Lakeridge Health, London Health Services, Niagara Health System, North Bay Regional Health Centre, Ontario Shores Centre for Mental Health Sciences, Orillia Soldiers Memorial Hospital, The Ottawa Hospital, Peterborough Regional Health Centre, Quinte Health Care Quinte Healthcare Corporation, Riverview Gardens Long Term Care Chatham-Kent The Corporation of the Municipality of Chatham-Kent, Royal Ottawa Health Care Group, Royal Victoria Regional Heath Care, Saint Elizabeth Health Care, Scarborough Health Network, Schlegel Village, Southlake Regional Health Centre, St. Joseph's Care Group, St. Joseph's Health Care London, St. Joseph's Health System, St. Mary's General Hospital, Thunder Bay Regional Health Sciences Centre, Timmins and District Hospital, Trillium Health Partners, Unity Health Toronto, University Health Network, Waypoint Centre for Mental Health Care, William Osler Health System, Windsor Regional Hospital, Woodstock Hospital

Defendants

Frank Cesario, Shivani Chopra for the Non-Government Defendants

Emily Owens, Sean Kissick for HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Ontario Premier Doug Ford, Former Minister of Health Christine Elliot, Current Minister of Health Sylvia Jones, Minister of Long-Term Care Paul Calandra,

HEARD: August 13-14, 2024

KOEHNEN J.

REASONS FOR JUDGMENT

Contents

Overview.. 4

I. Lack Of Jurisdiction.. 5

A. No Jurisdiction Over Unionized Employees. 6

B. No Jurisdiction Over Privilege Claims under the Public Hospitals Act 13

II. Abuse of Process. 19

A. Prejudicial Scope of the Action.. 19

B. Frivolous and Vexatious Pleadings. 22

C. Unnamed and Improperly Listed Plaintiffs. 28

III. No Reasonable Cause of Action.. 28

A. The Test to Strike A Statement of Claim.. 28

B. Conspiracy. 30

C. Intimidation.. 33

D. Intentional Infliction of Mental Anguish. 34

E. Charter Claim Against Non-Governmental Defendants. 35

F. Charter Claims Against Government Defendants. 42

G. No Tenable Challenge to Declaration of Emergency. 58

H. No Feasible Claim for Misfeasance of Public Office. 63

I. Miscellaneous Claims. 65

IV. Leave to Amend. 66

V. Costs. 68

Schedule “A” 71

Overview

[1] This is a motion to strike out the Amended Statement of Claim (“Amended Claim” or “Amended Statement of Claim”) the in this action. The motion is brought by two groups of Defendants. The first group consists of 54 Non-Governmental Defendants. The second group consists of His Majesty the King in Right of Ontario, Ontario Premier Doug Ford, former Minister of Health Christine Elliot, current Minister of Health Sylvia Jones, and Minister of Long-Term Care Paul Calandra.

[2] The action against the governmental entities was presumptively stayed due to the application of s. 17(2) of the Crown Liability and Proceedings Act (“CLPA”).[^1] Ontario waived the presumptive stay.

[3] The action is brought by 473 plaintiffs. The plaintiffs complain that a directive issued by the government of Ontario to healthcare facilities in Ontario in response to the Covid-19 pandemic led to the suspension or termination of their employment because they refused to be vaccinated against the Covid-19 virus. In addition, the plaintiffs object more generally to measures the government of Ontario took in response to the Covid-19 pandemic. The plaintiffs say that the directive and other measures breach their Charter rights, breach various forms of legislation, amount to misfeasance of public office, conspiracy, intimidation, and intentional infliction of mental anguish.

[4] The Defendants move to strike the Claim for want of jurisdiction, abuse of process and failing to disclose a reasonable cause of action. For the reasons set out below, I strike the Amended Statement of Claim in its entirety for each of those grounds with leave to amend in accordance with these reasons. In addition, I grant the Plaintiff Beth Ann Dick leave to amend her statement of claim in the form attached as Exhibit “B” to her affidavit sworn August 7, 2024.

I. Lack Of Jurisdiction

[5] A defendant may move under Rule 21.01(3)(a) to have an action dismissed on the ground that the Court has no jurisdiction over the subject matter of the action.[^2]

[6] The Defendants submit that the court has no jurisdiction over the claims of 387 Plaintiffs because they are unionized employees who are subject to the exclusive jurisdiction of the grievance and arbitration procedures set out in their collective agreements.

[7] In addition, the Defendants submit that the court lacks jurisdiction over the claims of eight additional plaintiffs whose claims relate to hospital privileges because such claims are subject to the exclusive jurisdiction of the arbitral regime set out in the Public Hospitals Act.[^3]

A. No Jurisdiction Over Unionized Employees

[8] Section 48 (1) of the Ontario Labour Relations Act[^4] provides that:

48(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.[^5]

[9] Courts have interpreted that provision, and its counterparts in other provinces, broadly to preclude court actions relating to claims that arise under a collective agreement and to restrict the remedies available in such cases to those that the collective agreement contains.[^6]

[10] The Supreme Court of Canada has made clear on numerous occasions that provisions like s. 48(1) give labour arbitrators “exclusive jurisdiction” over disputes that expressly or inferentially arise out of a collective agreement. When determining whether a particular dispute falls within section 48 (1) the Supreme Court of Canada has stated that the decision-maker must examine the factual context of the dispute and determine whether “its essential character concerns the subject matter that is covered by the collective agreement”:[^7]

If the essential character of the dispute arises either explicitly or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.[^8]

[11] The Supreme Court of Canada has similarly emphasized that in conducting this analysis, the court ought not to be tied to the legal characterization that the plaintiffs have placed on their claims. Rather, it is the “essential” character of the dispute that matters:

The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one arising under the collective agreement. Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.[^9]

[12] As a result, the simple fact that a claim is pleaded in tort does not mean that a court will have jurisdiction if its essential character arises out of the employment relationship. Thus, in New Brunswick v O’Leary, the Supreme Court of Canada held unanimously that the labour arbitrator had jurisdiction over tort claims if they arise out of the collective agreement:

It follows from this that the Court of Appeal erred in stating without qualification that “[n]egligence can be the subject of an action independent of the collective agreement” (p. 160). In fact, negligence can be the subject of an action only if the dispute does not arise from the collective agreement. …

Here the agreement does not expressly refer to employee negligence in the course of work. However, such negligence impliedly falls under the collective agreement. Again, it must be underscored that it is the essential character of the difference between the parties, not the legal framework in which the dispute is cast, which will be determinative of the appropriate forum for settlement of the issue.[^10]

[13] The plaintiffs’ core complaint is that their employment was suspended or terminated as a result of their employer’s COVID-19 vaccination policy. Suspension and termination are core elements within the jurisdiction of labour arbitrators under the labour relations regime. The fact that the plaintiffs also go on to characterize their claims as ones for conspiracy, intimidation, intentional infliction of mental anguish and breach of the Charter does not change the analysis. All of those complaints remain rooted in the employment relationship and its suspension and termination.[^11]

[14] In National Organized Workers Union v. Sinai Health System,[^12] the Ontario Court of Appeal made clear that alleged harms inflicted on employees by their employers’ Covid-19 policies are properly the subject of grievance proceedings:

At its core, the harm at issue was the potential for being placed on leave without pay or terminated under the Policy, if an employee chose to remain unvaccinated. The appellant’s members were not being forced to be vaccinated, denied bodily autonomy, or denied the right to give informed consent to vaccination. They could choose to be vaccinated or not. If they chose not to be vaccinated, they faced being placed on unpaid leave or having their employment terminated. This potential harm is fundamentally related to employment. It is harm which an arbitrator has the tools to remedy.[^13]

[15] That the claims of the unionized employees belong in the grievance regime under the Labour Relations Act is further demonstrated by the fact that 270 policy, group, or individual grievances have been filed on behalf of the unionized Plaintiffs.

[16] In addition, the collective agreements at issue here, like most collective agreements, contain provisions that are known as management rights clauses. Management rights clauses give management the right to establish, alter and enforce reasonable rules and regulations to be observed by employees provided that such rules and regulations are not inconsistent with the provisions of the collective agreement. This provides further support for the fact that the implementation of Directive 6 by the Defendants arises out of the collective agreement because it relates to the management rights clause in each agreement.

[17] In my view, the Amended Claim clearly arises out of the “interpretation, application, administration or alleged violation of” the collective agreements at issue. The fundamental issue in the Amended Claim against the 54 Non-Governmental Defendants is whether they had the right to suspend or terminate the unionized Plaintiffs. Rights to suspend or terminate employment or not to have one’s employment suspended or terminated go to the very heart of the employment relationship and the collective agreement. The adjudication of those rights belongs before an arbitrator, not a court, other than on judicial review.

[18] The Plaintiffs represented by Mr. Galati[^14] raise a number of responses to this.

[19] First, they argue that that they need access to the courts because they are seeking relief under the Charter, including a declaration, which the Plaintiffs say arbitrators have no jurisdiction to grant. I am unable to accept that submission. The Supreme Court of Canada stated clearly in Weber v. Ontario Hydro,[^15] that arbitrators do have the power to grant declarations, under the Charter.[^16]

[20] Next, the plaintiffs argue that the courts have never excluded tort actions simply because there was a collective agreement. I agree. That is not, however, what the Defendants are saying. A collective agreement does not exclude tort actions if the tort does not arise out of the “interpretation, application, administration or alleged violation” of the collective agreement. Here again the issue is not how the Plaintiffs characterize their claim but what the essential character of the claim is.

[21] Next, the Plaintiffs argue in their factum:

In the same way that an employee could not raise this basis for an employer (sexually) assaulting an employee in the context of employment, the coercive and intimidation measures to violate bodily and psychological integrity contrary to s.7 of the Charter, and from common-law, is not a bar to this action.

[22] This misses the point. A sexual assault does not arise out of the “interpretation, application, administration or alleged violation” of the collective agreement. The essential character of a claim for sexual assault is just that, a claim for sexual assault. Its essential character has nothing to do with the employment relationship. As the Supreme Court noted in Weber:

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts.[^17]

[23] Finally, on this point, the Plaintiffs say that the gravamen of their case is not about wrongful dismissal but about a violation of Charter rights as a result of a government directive. The directive at issue is known as Directive # 6 (“Directive 6”).

[24] Directive 6 was issued by the Ministry of Health on August 17, 2021 and was revoked on March 14, 2022. It required health organizations, including the Non-Governmental Defendants, to develop and implement COVID-19 vaccination policies. Directive 6 did not set out consequences for refusing to be vaccinated.

[25] The simple answer to characterizing the claim as being about Directive 6 is that it does not matter. That would still mean that the issue arises out of the employment relationship because the policies promulgated under Directive 6 are workplace policies. Moreover, the Court of Appeal for Ontario has already determined that issues arising under Directive 6 are issues that arise out of a collective agreement and are subject to the grievance procedure of the labour relations regime rather than to actions in court.[^18]

B. No Jurisdiction Over Privilege Claims under the Public Hospitals Act

[26] Eight Plaintiffs,[^19] seven physicians and one midwife, bring claims related to their privileges to work at certain hospitals. The Non-Governmental Defendants submit that the court has no jurisdiction to hear those claims because they are subject to the exclusive jurisdiction of the governing body of the respective hospitals and the Health Professionals Appeal and Review Board (“HPARB”) as set out in the Public Hospitals Act.[^20]

[27] The Public Hospitals Act sets out a comprehensive code for granting and revoking hospital privileges.[^21] The Act requires the Board of each hospital to create a Medical Advisory Committee. The Medical Advisory Committee is charged with making recommendations to the hospital Board about granting and revoking hospital privileges.[^22] The person subject to any such recommendation is entitled to notice of the recommendation and can request written reasons for it. The person subject to any such recommendation is also entitled to a hearing before the hospital Board with respect to any such recommendation and Board decision.

[28] If the subject of a Board decision is not satisfied with it, they have a right of appeal to the Health Professionals Appeal and Review Board (“HPARB”), an independent administrative tribunal. Decisions of HPARB are then subject to judicial review to the Divisional Court.[^23]

[29] In Beiko v Hotel Dieu Hospital St Catherine’s, Morawetz J. (as he then was) conducted a detailed review of these procedures and their relationship to court proceedings:

[53] It seems to me that in establishing such a comprehensive code to deal with issues of privilege, it is not open for this Court to usurp the statutory regime by conducting a hearing independent from the process as set out in the Act. This Court lacks the jurisdiction to do so. In my view, parties do not have access to the Court to determine issues of privilege in the absence of following the statutory route.

[54] The bringing of an action for damages is not inconsistent with determining a privilege issue in accordance with the statutory process. However, it is incumbent upon any party who wishes to bring an action for damages, arising out of a privilege issue, to first proceed by way of the statutory route to establish the basis for sustaining the claim in damages. There may very well be situations in which an applicant, by following the statutory process, will succeed in establishing the basis for a remedy in damages. But it is only after establishing the basis through the statutory process that it is open for the applicant to then bring an action for damages in the ordinary courts. To permit applicants to commence actions for damages on a privilege issue without following the statutory process would result in a system whereby a dissatisfied party would be able to bypass the specialized tribunal, a result that, in my view, is not permitted under the Act.[^24]

[30] The Plaintiffs’ principal response to the issue of jurisdiction in relation to the health professionals is that the Supreme Court of Canada held in Canada (Attorney General) v. TeleZone Inc.[^25] that judicial review does not preclude an action for damages.

[31] On my reading, TeleZone is more nuanced than that. The essence of the analysis in TeleZone was that the simple existence of a judicial review regime did not automatically preclude actions for damages but that:

… There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. Generally speaking the fundamental issue will always be whether the claimant has pleaded a reasonable private cause of action for damages. If so, he or she should generally be allowed to get on with it.[^26] (Emphasis added)

[32] The legislature has established a detailed scheme to accord and revoke hospital privileges. There is good reason for that. Those decisions involve technical, scientific evaluations of an individual’s skill set as well as strategic considerations within a particular hospital. Courts are less well-equipped to deal with those issues than are hospital Boards and the HPARB.

[33] TeleZone is further distinguishable on its facts. In TeleZone, the plaintiff had applied for a personal communication services license in response to a statement by Industry Canada that it would issue up to six licenses on the basis of certain criteria. TeleZone submitted an application which met all of the criteria. Industry Canada then issued only four licenses from which TeleZone was excluded. TeleZone commenced an action in the Ontario Superior Court of Justice for breach of contract, negligence and unjust enrichment claiming losses of $250 million. It claimed that it was an express or implied term of Industry Canada’s policy statement that it would issue fewer than six licenses only if fewer than six applications met the criteria. The Federal Government challenged the jurisdiction of the Superior Court on the ground that the claim constituted a collateral attack on the decision which was barred by s. 18 of the Federal Courts Act which grants the Federal Court exclusive jurisdiction for judicial review of decisions of federal boards, commissions, or tribunals. The Superior Court dismissed the objection. The Court of Appeal and the Supreme Court of Canada upheld. The Supreme Court focused on the fact that s. 17 of the Federal Courts Act granted concurrent jurisdiction to the provincial superior courts with respect to claims against the Federal Crown. The Supreme Court interpreted the grant of exclusive jurisdiction to judicially review federal decision-makers in s. 18 of the Federal Courts Act as an exception to the more comprehensive grant of concurrent jurisdiction which should therefore be strictly construed. The Court also noted that judicial reviews before the Federal Court had to be brought within 30 days but that actions of the sort that TeleZone brought could not necessarily be commenced within 30 days because the civil cause of action may not have emerged within that short time frame. The court analysed the plaintiff’s pleading and concluded that it pleaded all of the elements of a private cause of action and was dominated by private law considerations. Finally, the Court concluded that TeleZone’s action was not attempting to nullify or set aside a decision, nor did it try to remove the legal effect of the decision.

[34] The Plaintiffs’ action here is not subject to any of those considerations. It does not involve the interpretation of concurrent jurisdiction of courts. It does not involve a private cause of action. There is no private right to have or retain hospital privileges. That is a public right governed by a particular statutory regime. On the face of the Amended Statement of Claim, the claims of these eight individuals are clearly based on the revocation of their privileges and their request that those privileges be reinstated.[^27] In doing so, the Plaintiffs are asking the court to nullify a decision that is subject to a well-thought-out regulatory regime. That, to use the language of the Supreme Court in Telezone, is “a claim for judicial review with only a thin pretence to a private wrong.” Indeed, given the nature of the regulatory regime, the Plaintiffs can never get to damages for the revocation of privileges until the revocation is set aside on judicial review.

[35] The Plaintiffs further rely on Solgi v College of Physicians and Surgeons of Saskatchewan,[^28] where the Saskatchewan Court of Appeal allowed a claim by a physician for the allegedly wrongful suspension of his licensing process. In doing so, the Court noted that Solgi was not seeking to set aside the decision of the College of Physicians and Surgeons. Rather, he was content to let the decision stand but was suing for damages. The Court of Appeal went on to note that

If a claimant is seeking to set aside or vary that order, they generally must proceed by judicial review, or avail themselves of the appeal mechanisms provided by the administrative structure’s enabling statute. However, if the claimant is “content to let the order stand” and is instead seeking damages by pursuing a recognized cause of action because of the harm they have suffered from that order, then their claim is generally one that is recoverable in a civil action. Indeed, their claim is such that it would typically be impossible for them to achieve the recovery they seek on an appeal from, or judicial review of, the order.

[36] As noted above, the claim of the eight healthcare professionals is different. They want to nullify the decision that was made and want to have their privileges reinstated. That is a matter for judicial review.

[37] To the extent that the Plaintiffs argue that the regime created by the Public Hospital Act does not address their Charter rights, I disagree. In Gill v. Health Professions Appeal and Review Board,[^29] the Divisional Court reviewed a decision of the HPARB which expressly considered the applicant’s Charter rights and in which the Divisional Court affirmed the correctness of the Board’s analysis of those Charter rights.

II. Abuse of Process

[38] The Defendants submit that the action constitutes an abuse of process because:

(a) The scope of the action is prejudicial;

(b) The pleadings are frivolous and vexatious

(c) The Amended Claim contains unnamed and improperly listed plaintiffs.

[39] I find in favour of the Defendants on each of these submissions.

A. Prejudicial Scope of the Action

[40] This is a claim by 473 different plaintiffs against 59 separate healthcare and government entities.

[41] Although actions can be consolidated when doing so would lead to greater efficiency in the use of the Court’s time and resources, this is generally done where the actions appear to have questions of law or fact in common or where they claim relief arising out of the same transaction or series of transactions or occurrences.[^30] An overarching principle in determining whether to consolidate is to determine whether consolidation would achieve the just, most expeditious and least expensive determination of the proceedings in accordance with Rule 1.04.

[42] In my view, this case does not meet any of those tests. As pleaded, the action would allow what are effectively 473 individual actions to proceed as one claim. Even if the unionized employees and healthcare professionals are removed, that would still leave 78 separate claims being heard together.

[43] The claims are essentially wrongful dismissal claims arising out of the suspension and/or termination of the Plaintiffs’ employment for refusing to adhere to their employer’s vaccine policies. Determining whether an employer was within its rights in dismissing an individual employee will require the court to analyse and balance the facts of each case. By way of example, in each individual case the court may have to consider:

i. Each Plaintiff’s reasons for not becoming vaccinated.

ii. The grounds for which each Plaintiff requested an exemption from the employer’s Covid-19 policies.

iii. The response of each employer to each Plaintiff.

iv. The context, content, and manner in which each employer’s Covid-19 policies were implemented. Those factors are specific to each employer. The Non-Governmental Defendants are institutions of widely varying size and scope and are located in different geographic areas. A policy and a decision to suspend or terminate may make sense in one context but not in another. By way of example, the defendant, Bayshore Healthcare alone enforces four different COVID-19 policies for various staff members.[^31]

[44] Aggregating 473 such cases together does not make trying them easier but makes doing so entirely impractical.

[45] Geography is a further factor militating against consolidation. Although the Action was commenced in Toronto, the vast majority of the Plaintiffs and Non-Governmental Defendants are located outside of Toronto. Locations range from Thunder Bay to Windsor and from Windsor to Kingston. Here too, consolidation will hinder the convenient administration of justice.

B. Frivolous and Vexatious Pleadings

[46] In Action4Canada v British Columbia (Attorney General),[^32] the British Columbia Supreme Court dealt with a similar (albeit 391 page) statement of claim prepared by the Plaintiffs’ lawyer in this case in relation to Covid-19 measures which it struck out in its entirety stating:

On the first issue, whether the NOCC [Notice of Civil Claim] is prolix, I agree with the Defendants’ submission: the NOCC, in its current form, is not a pleading that can properly be answered by a responsive pleading. It describes wide-ranging global conspiracies that may, or may not, have influenced either the federal or the provincial governments. It seeks rulings of the court on issues of science. In addition, it includes improper allegations, including criminal conduct and “crimes against humanity”. In my opinion, it is “bad beyond argument”.

[47] Similarly, in Adelberg v. Canada,[^33] the Federal Court struck out another statement of claim drafted by the Plaintiffs’ lawyer in this case in relation to federal covid policies saying:

The Statement of Claim in this proceeding is almost 50 pages long. Nine pages are devoted to the remedies sought. There are allegations of constitutional invalidity and criminal culpability, broad assertions of scientific knowledge regarding the COVID-19 pandemic, and a claim that some of the public health measures instituted by the Government of Canada amounted to crimes against humanity. Some of the requested remedies are unavailable in a civil action, including administrative declarations and injunctive relief.[^34]

[48] The Amended Statement of Claim is characterized by the same problems. It is 58 pages long, and contains a nine page prayer for relief. It makes allegations of conspiracy, seeks rulings on issues of science and alleges criminal conduct, including crimes against humanity. For example, it asks the court to declare that the policies of the Ontario government in response to Covid-19:

i. “violate international treaty norms”;

ii. are unconstitutional;

iii. are “based on a false and fraudulent use of PCR testing;

iv. “are forms of Martial law outside of the Province’s jurisdiction”,

v. amount to “coerced de facto … Covid vaccines , PCR and other mRNA and RNA testing” and “constitute a Crime Against Humanity under international treaty and customary law thereby making such coerced and mandatory testing an offence under the War Crimes and Crimes Against Humanity Act in Canada.

In addition, they ask the court to declare that:

vi. there is no rational connection between being vaccinated and not being vaccinated in terms of avoiding or preventing transmission of the Covid virus; and that

vii. the Covid-19 vaccines are not vaccines but are medical experimentation.

[49] The Amended Statement of Claim is, at best, unusually drafted. A statement of claim is supposed to contain material facts on which the action is based. The Amended Statement of Claim contains few material facts about the employment of any of the 473 plaintiffs or the circumstances of their suspension or termination. Mr. Galati explained in oral argument that if the claim contained such facts, it would run into the hundreds of pages and would be challenged as unwieldly. That perhaps speaks to the advisability of pleading this as a consolidated claim.

[50] As set out in greater detail below, the allegations of conspiracy in relation to what the plaintiffs say was a manufactured pandemic are untenable. Numerous courts in Ontario have taken judicial notice of the Covid-19 pandemic. In R v Morgan, the Ontario Court of Appeal stated:

We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

[51] Similarly, in R v Rajan, the Court stated that “proof with respect to many COVID-19 factual issues, including the importance of physical distancing, is quintessentially a matter for judicial notice. No evidence need be tendered”.[^35]

[52] The Ontario Court of Appeal has noted that the doctrine of abuse of process is, among other things, aimed at preventing legal proceedings from being misused for improper purposes.[^36] In doing so it quoted from Blair J.A. in dissent in Foy v. Foy (No. 2), saying:

The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant’s legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes their image in the administration of justice. (emphasis added)

The doctrine of abuse of process has been utilized by the courts in various ways in order to maintain the integrity of the adjudicative function. In particular, it has been invoked in civil proceedings in circumstances where the court’s procedure has been misused in such a way that the administration of justice would be brought into disrepute.[^37]

[53] I have the distinct impression from reading the Amended Claim as a whole that its object is not to vindicate the employment rights of the plaintiffs so much as it is to mount a political crusade in which the court will be used as a grandstand to conduct an inquiry into the effectiveness of vaccines and the effectiveness of government measures in response to the Covid-19 pandemic by opponents of those measures. Although there may well be room for that sort of inquiry in the appropriate case, in circumstances where a worldwide pandemic was declared by the World Health Organization and in which governments of all stripes around world took draconian public health measures to prevent the spread of Covid-19, this is not a case in which it would be appropriate for the court to wade in and determine for itself whether, and if so, what, public health measures were necessary. Public health measures are a matter of policy. They depend not only on the science of a particular disease and its spread but also on the resources of the health system and its ability to treat certain levels of illness. Public health policy is generally for the government to determine unless there is some credible argument to the effect that the government was misusing public health measures. Had Ontario taken steps that were fundamentally out of line with what other jurisdictions around the world were doing, the plaintiffs might have a more credible argument in this regard. Given that Ontario reflected a mainstream of scientific thought, it does seem frivolous and vexatious to be embarking on an inquiry that focuses not on the individual circumstances facing the plaintiffs but that focusses on whether public health measures were based on fraudulent testing and amounted to crimes against humanity.

[54] In oral argument Mr. Galati responded to this critique of his approach by saying: “Today’s science is tomorrow’s disproved theory.” While that is no doubt often the case and while there may be a legitimate debate about whether public health measures could have been more effective; that inquiry is better conducted in the form of a “lessons learned” inquiry by responsible scientists and public health authorities than it is in this action.

[55] A further indicator of the frivolous and vexatious nature of the action as pleaded is the difficulty of discerning which allegations are made against which Defendants. By way of example, paragraph 37 of the Amended Statement of Claim states:

The Defendants and their officials falsely claim that Canada’s death rate from Covid-19, being no higher than the complications of the annual flu, is because of the measures taken. This is wild speculation and incantation which could only be proven by comparison of jurisdictions (states and countries) which have taken no or little Covid measures against countries, such as Canada, including Ontario, who have taken severe measures.

[56] Does this mean that each of the 50 to Non-Governmental Defendants is alleged to have made such a claim and to have made it falsely? The Amended Statement of Claim is replete with broad statements of that nature from which no one defendant could determine whether it is the subject of that allegation or not.

C. Unnamed and Improperly Listed Plaintiffs

[57] The Amended Claim names one Jane Doe and two John Does as Plaintiffs. They are said to have been employed by Hotel Dieu Grace, Quinte Healthcare and Unity Healthcare Toronto. Given the specifics of the employer, one would think that those employees could be identified. There is no basis advanced in the Amended Statement of Claim for identifying those plaintiffs by a pseudonym.

[58] Unidentified Plaintiffs cause particular concern here because a number of the identified Plaintiffs do not appear to have been employed by the Defendants at the relevant time. The Plaintiffs Jennifer Correia, Clayton Lewis, and Jacqueline Watson are identified as having been employees of the William Osler Health System. Jennifer Correia and Clayton Lewis do not appear to have ever been employed by that organization. Jacqueline Watson was has not been employed by the William Osler Health System since 2007. Any claims by those Plaintiffs against the William Osler Health System must therefore be struck out.

[59] Given the absence of any pleaded grounds for using pseudonyms rather than real names, I also strike out the claims of Jane Doe and the two John Does.

III. No Reasonable Cause of Action

A. The Test to Strike A Statement of Claim

[60] The principles surrounding the striking of a statement of claim for disclosing no reasonable cause of action are well known and are not in dispute on this motion:

(d) Evidence is not admissible on a motion to strike.[^38]

(e) The facts alleged in the statement of claim are taken to be true for the purposes of this motion. That does not, however, apply to, assumptions, speculation, or to bald conclusory statements of fact that are not supported by material facts.[^39]

(f) The statement of claim will be struck out only if it is “plain and obvious” that the pleading fails to disclose a reasonable cause of action.[^40]

(g) A statement of claim should not be struck just because it is “novel.”[^41]

(h) Matters that are not fully settled by the jurisprudence should not be disposed of by striking out a statement of claim.[^42]

[61] By way of summary, I am satisfied that the Amended Claim should be struck out in its entirety. It does not plead material facts to support its various causes of action. It pleads bald allegations without material facts. Critical elements of many of the alleged torts are not pleaded. The Amended Statement of Claim alleges a number of intentional torts. Plaintiffs must provide full particulars in support of allegations involving malice or intent.[^43] The Ontario Court of Appeal has held that claims involving malice must “meet a stringent standard of particularity.”[^44] Despite these requirements, the claim provides no material facts to support these claims, let alone the full particulars required to establish liability in tort. I turn then to the particular causes of action that have been pleaded.

B. Conspiracy

[62] In Normart Management Ltd. v. West Hill redevelopment Co. Ltd.,[^45] the Court of Appeal for Ontario adopted the following test to plead conspiracy:

The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the Defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.[^46] [emphasis added.]

[63] This test has been and continues to be widely followed.[^47]

[64] Paragraph 54 of the Amended Statement of Claim alleges that the Defendants “are engaging in the tort of conspiracy”. It continues stating:

The Defendants do so through the declaration of a false pandemic and implementation of coercive and damaging measures including the infliction of a violation of their constitutional rights as set out above in the within statement of claim, which has caused the Plaintiffs damages…

[65] The claim continues in paragraph 55 to demonstrate the conspiracy by stating:

55. The Plaintiffs state, and the fact is, that this conspiracy, between the named, and unnamed Johns and Janes Doe administrators, is borne out, by the fact that:

(a) It is not a power of the Constitution Act, 1867 grants the Provincial nor Federal Government, absent legislation and declaration of the Federal Emergencies Act, subject to constitutional constraints, as set out and as redundantly noted in the Emergencies Act itself;

(b) Such coercive mandates and measures violate ss.2, 7, and 15, of the Charter;

(c) Such coercive measures violate the Genetic Non-Discrimination Act;

(d) Such coercive measures violate international (treaty) norms and rights, which norms and rights are read into s. 7 of the Charter;

(e) Such coercive measures in ignoring the statutory prohibitions, further constitute offences under the Criminal Code of Canada, including: disobeying a statute (s. 126) Extortion (s. 346);

(f) That such coercive measures were planned, executed, and implemented knowingly and perpetual statements (sic) and threats by the Defendants that, "not vaccinating will carry consequences".

[66] That paragraph is illogical. The bald allegation that certain measures allegedly breach the Charter and a number of statutes does not establish a the conspiracy and is not a substitute for pleading the particulars of a conspiracy.

[67] The claim does not describe the relationship of the alleged conspirators to each other, does not refer to any alleged agreement between the parties, does not refer to the acts that led to such an agreement and does not refer to the acts of each alleged conspirator in furtherance of the conspiracy.

[68] Paragraph 54 of the claim states:

whether the means used by the Defendants are lawful or unlawful, the predominant purpose of the Defendants’ conduct is to cause injury to the Plaintiffs;

[69] It strains all credulity to accept that the Premier of Ontario, a number cabinet ministers and 54 Non-Governmental Defendants somehow conspired to concoct a plan to declare a “false pandemic” all for the predominant purpose of harming the plaintiffs. The outlandish nature of that allegation becomes even more obvious when one considers that the World Health Organization declared the COVID-19 outbreak a to be a pandemic on March 11, 2020, and Ontario declared an emergency on March 17, 2020 as did governments of a variety of political stripes in a large number of industrial democracies.

[70] For the conspiracy allegation to succeed, the plaintiffs would have to prove that the predominant purpose of any Covid measures the Ontario government took was not to protect public health and safety but to harm the Plaintiffs in this action. The allegation becomes still more impossible to establish given that a number of courts have taken judicial notice of the Covid-19 pandemic.[^48]

C. Intimidation

[71] To assert a successful claim for intimidation, the Plaintiffs must prove that:

(a) the Defendants coerced them to do or refrain from doing an act;

(b) the Defendants used a threat as a means of compulsion;

(c) the Defendants’ threat must have involved some form of unlawful conduct;

(d) the Plaintiff must have complied with the Defendants’ demand;

(e) the Defendants must have intended to injure the Plaintiffs; and

(f) the Plaintiffs suffered damages as a result.[^49]

[72] The Plaintiffs’ claim does not allege that the Plaintiffs complied with the Defendants’ demands. Indeed, the whole basis of the Plaintiffs’ claim is that they did not comply with public health measures and therefore suffered harm. In that light the Plaintiffs could not have been intimidated. As a result of that alone the claims for intimidation must be struck out.

[73] In addition, the Plaintiffs have not pled any facts regarding the Defendants’ intent to injure the Plaintiffs. I accept that those facts may sometimes be difficult to ascertain given that a plaintiff is not always privy to evidence of intention. On the facts of this case, however, it is important to plead facts surrounding intention for the same reason that it is important to plead specific facts to demonstrate a predominant purpose to injure for the conspiracy claims. It is simply so unlikely on the facts of this case that the Defendants had any intention to harm the Plaintiffs as opposed to having an intention to safeguard public health and safety that the claim should be struck out in the absence of pleaded facts.

D. Intentional Infliction of Mental Anguish

[74] The tort of intentional infliction of mental suffering comprises three elements which a plaintiff must plead:

(a) the Defendant committed a reckless act or made a knowingly false or reckless statement;

(b) the Defendant did so for the purpose of injuring the Plaintiff; and

(c) the Plaintiff was injured as a result.[^50]

[75] Here too the claim must fail because of the lack of material facts to demonstrate that the Defendants acted for the purpose of harming the Plaintiffs as opposed to acting to protect public health and welfare.

[76] In addition, the Plaintiffs’ claim for intentional infliction of mental anguish is based on the allegation that:

The Defendants, through their illegal and unconstitutional “vaccine” mandates and “passports”, have knowingly inflicted mental anguish on the Plaintiffs, as one of the “consequences” of exercising their constitutionally protected right(s) to decline any medical treatment and/or procedure based on the constitutionally protected right to informed, voluntary, consent.

[77] The allegedly reckless act is therefore the imposition of “illegal and unconstitutional vaccine mandates and passports.” As noted later in these reasons, those mandates have been held to be legal and constitutional.

[78] As a result to the foregoing, I am satisfied that it is plain and obvious that the allegations concerning conspiracy, intimidation and intentional infliction of mental anguish do not disclose a reasonable cause of action and must be struck out.

E. Charter Claim Against Non-Governmental Defendants

[79] The Non-Governmental Defendants submit that the Charter applies to only 7 of their 54 members.[^51] The remaining 47 Defendants are private entities. The issue arises because s. 32 of the Charter provides that it applies to the Parliament and government of Canada[^52] and to the legislature and government of each province in respect of all matters within the authority of Parliament or the legislature of each province respectively. The question then becomes: What constitutes government?

[80] In Eldridge v. British Columbia (Attorney General)[^53] the Supreme Court of Canada confirmed that the Charter can apply to an entity in one of two ways. In the first category, the Charter applies because the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity is government “either by its very nature or in virtue of the degree of governmental control exercised over it”.[^54] If so, all of the activities of the entity will be subject to the Charter.

[81] The second category applies to entities that are not themselves “government.” In those cases the Charter applies where the entity carries on a particular activity that can be ascribed to government. The focus is not on the nature of the entity but on the nature of the activity. As the Supreme Court explained,

If the act is truly “governmental” in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.[^55]

[82] An examination of two Supreme Court of Canada decisions helps clarify the distinction.

[83] In the first decision, Stoffman v. Vancouver General Hospital,[^56] a hospital passed a regulation that required all physicians to retire at age 65 unless it could be shown that they had something unique to offer the Hospital. The Regulation was approved by the hospital's Board and was subsequently approved by the provincial Minister of Health as required by statute. Although the hospital was run by a Board, the government had power to appoint 14 of its 16 members. The Minister's power with respect to the by-laws of the hospital extended beyond the power of veto and included the positive power to require the Board to adopt new or amend existing by-laws. When the Board decided not to renew the admitting privileges of a number of physicians, they challenged the regulation on the basis that it violated s. 15 of the Charter.

[84] A majority of the Court held that the Charter did not apply because the requirement for ministerial approval was supervisory in nature to ensure that the hospital's actions did not contravene the government's power to prescribe standards for hospital administration. The Court highlighted that the regulation was initiated by the Board and did not reflect government policy with respect to hospital privileges.

[85] In addition, the responsibility for hospital privileges lay with the Board and was not subject to government control, except in unusual circumstances. The simple fact that the Minister could require the hospital to adopt or amend by‑laws did not undermine the hospital's responsibility for rules that it adopted on its own initiative.

[86] In the second decision, Eldridge, two deaf patients challenged a hospital’s decision not to provide sign language interpreters for its patients. The Court found that the legislative regime governing hospitals provides for the delivery of a comprehensive social program and that hospitals were the mechanism through which the legislature had decided to deliver this social program. In that light, when providing medical services, hospitals were carrying out a specific governmental objective and were therefore subject to the Charter. The Court summarized its analysis and distinguished Stoffman as follows:

Unlike Stoffman, then, in the present case there is a “direct and . . . precisely-defined connection” between a specific government policy and the hospital’s impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.[^57]

[87] Here the alleged government policy is Directive 6. Directive 6 was issued by Ontario’s Chief Medical Officer of Health. It has four material paragraphs. They read as follows:

1. All Covered Organizations must establish, implement and ensure compliance with a COVID-19 vaccination policy that requires its employees, staff, contractors, volunteers and students to provide:

a. proof of full vaccination against COVID-19; or

b. written proof of a medical reason provided by a physician or registered nurse in the extended class that sets out:

(i) a documented medical reason for not being fully vaccinated against COVID-19, and

(ii) the effective time period for the medical reason;

2. All Covered Organizations must also make available an educational session about the benefits of COVID-19 vaccination which addresses:

a. how COVID-19 vaccines work;

b. vaccine safety related to the development of the COVID-19 vaccines;

c. the benefits of vaccination against COVID-19;

d. risks of not being vaccinated against COVID-19; and

e. possible side effects of COVID-19 vaccination.

3. Despite paragraph 1, a Covered Organization’s vaccine policy may allow for an employee, staff, contractor, volunteer or student to provide proof of completing the educational session described in paragraph 2, as an alternative to the requirements of paragraph 1 (a) or (b), and must comply with the requirements set out in paragraph 4.

4. Every Covered Organization’s vaccination policy shall require that where an employee, staff, contractor, volunteer or student does not provide proof of being fully vaccinated against COVID-19 in accordance with paragraph 1(a), but instead relies upon the medical reason described at paragraph 1(b) or, if applicable, the educational session described at paragraph 3, the employee, staff, contractor, volunteer or student shall:

a. submit to regular antigen point of care testing for COVID-19 and demonstrate a negative result, at intervals to be determined by the Covered Organization which must be at a minimum once every seven days.

b. Provide verification of the negative test result in a manner determined by the Covered Organization that enables the Covered Organization to confirm the result at its discretion.

[88] What is clear from the Directive is that each health organization has the discretion to make its own decision about what the consequences for non-compliance with the policy should be. This was not a directive from the provincial government directing health organizations to terminate the employment of unvaccinated employees. Had it been that, the policy might be subject to Charter scrutiny under Eldridge as a category two case. The Directive is silent on that point. There could be a wide variety of consequences possible for non-compliance. These might include assigning unvaccinated employees to virtual work environments, having them work in person but not in front facing roles, having them work in environments with reduced exposure to others, or having them work together in a segregated space. I am not saying that any of these options would necessarily be appropriate. I list them merely to demonstrate that termination is not necessarily a foregone conclusion depending on the circumstances.

[89] Directive 6 also contains a sample, minimum requirements policy. Under the heading “non-compliance with the policy” it states:

In accordance with ABC Covered Organization’s human resources policies, collective agreements and applicable legislation, directives, and policies _________________.

[90] There again, the minimum requirements policy does not require termination or any other particular form of sanction. It leaves it entirely to the individual health organization to determine how best to respond. It is worth reiterating here that the Directive contemplates an unvaccinated person being in compliance with the directive provided they have taken the educational sessions and comply with weekly testing requirements.

[91] The Plaintiffs’ complaint is that their employment was suspended or terminated. That decision is not subject to Charter scrutiny under Directive 6 because it has not been directed by a governmental authority. The decisions taken with respect to the employment of the Plaintiffs were independent decisions made by healthcare organizations exercising their own judgment and discretion in how best to conduct the daily operations of their facilities.

[92] In this regard it is also worth noting that each of the Non-Governmental Defendants was obliged to protect employees from health and safety dangers by the Occupational Health and Safety Act. The policy required by Directive 6 is not conceptually different from the requirement that each employer develop a written occupational health and safety policy and a program to implement that policy under s. 25(2)(j) of the Occupational Health and Safety Act.[^58] That does not mean that every private employer’s Occupational Health & Safety policy is now subject to Charter scrutiny.

F. Charter Claims Against Government Defendants

i. Mootness

[93] As noted earlier, the Defendants include His Majesty the King in Right of Ontario (“Ontario”), Ontario Premier Doug Ford, Former Minister of Health Christine Elliot, Current Minister of Health Sylvia Jones, and Minister of Long-Term Care Paul Calandra (collectively, the “Government Defendants”).

[94] The Government Defendants submit that all allegations against them should be struck out because they are based on pandemic precautions that have not been in force for over two years. They describe this as a “classic example of mootness”,[^59] which has eliminated the live controversy between the plaintiffs and the Government Defendants[^60] or has rendered it academic.[^61] They rely in particular on the Ontario Court of Appeal’s decision in Harjee v. Ontario,[^62] where the Court of Appeal dismissed a challenge to COVID-19 public health measures as moot.

[95] I do not accept that argument. In Harjee, the appellants were challenging public health measures that required proof of vaccination to enter a restaurant, bar, sporting arena, movie theatre, fitness facility and certain other businesses. The appellants were seeking a declaration in this regard. In circumstances where the appellants were seeking only a declaration with respect to a regulation that was no longer in force, the issue was indeed moot. In this case, however, the Plaintiffs seek more than declarations. They also seek damages which they say they suffered as a result of the allegedly unconstitutional measures. To the extent that the right to damages turns on a finding of unconstitutionality, the issue is not moot or academic but remains very much alive.

ii. Merits of Charter Claims Against Government Defendants

[96] The claim first alleges that Directive 6 was unconstitutional[^63] because it required de facto mandatory vaccines which the Plaintiffs allege violate sections 2, 7, and 15 of the Charter. The Claim also alleges that all steps taken pursuant to Directive 6 are unconstitutional because the Constitution Act, 1867 does not give any jurisdiction to decree any medical treatment and because forcing such medical treatment would violate s. 7 of the Charter and its right to bodily and psychological integrity.

[97] In my view, all such pleadings must be struck out as disclosing no reasonable cause of action.

[98] The only thing the government did in issuing Directive 6 was require health authorities to implement a Covid-19 vaccine policy. It left it to each local health authority to determine what the consequences of noncompliance with the policy should be. There can be nothing unconstitutional about a government, during a medical emergency, requiring health authorities to have policies in place which address that medical emergency.

[99] Moreover, although the Amended Statement of Claim alleges that Directive 6 breached s. 2 of the Charter. That section encompasses four rights: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. The claim does not indicate which of those four rights Directive 6 allegedly breached nor does it plead any material facts to demonstrate how Directive 6 allegedly breached any of those rights.

[100] The second broad allegation in the Amended Statement of Claim is that:

… promoting, and executing, PCR testing constitutes a criminal act under sections 3-5 and s.7 of the Genetic Non-Discrimination Act (S.C. 2017, c. 3), and counselling and aiding and abetting a criminal act as well as an offence under s. 126 of the Criminal Code of Canada, to wit, disobeying a statute;

[101] Those allegations must also be struck out. The Amended Statement of Claim does not contain any description of what PCR testing is, nor does it allege that the antigen testing referred to in paragraph four of Directive 6 is in fact PCR testing. There is no allegation in the claim that any of the Plaintiffs were required to undergo PCR testing; what, if any, harm they suffered as a result; or how PCR testing breaches the Genetic Non-Discrimination Act.

[102] The third broad allegation of unconstitutionality involves the request for:

a further declaration that the introduction of “vaccine passports”, and their compulsory use to obtain goods and services, as well as travel on trans-provincial routes by air, train, and water vehicles, is unconstitutional and of no force and effect in violating: [ss. 6, 7, and 9 of the Charter and pre-Charter rights]

[103] All allegations relating to that claim must also be struck out. Recall that the Governmental Defendants are all related to Ontario. There is no allegation in the Amended Statement of Claim that Ontario enacted any requirement for “travel on trans-provincial routes”. Indeed, that would be for the federal government, not for a province, to regulate. In addition, there is no allegation that any of the Plaintiffs were subject to the requirement of a vaccine passport to obtain a particular service. Moreover, what the Plaintiffs referred to as “vaccine passports” have been abolished for well over two years. In the absence of any specific claim for damages arising out of “vaccine passports” the claim in this regard is moot and should be struck out for the reasons articulated by the Court of Appeal in Harjee.

[104] In my view the constitutional challenges to Directive 6 and the other measures challenged in the Amended Statement of Claim should also be struck out. As the Court of Appeal for Ontario noted in Harjee:

Further, courts across the country have provided guidance on the constitutionality of government public health measures in response to the pandemic – in each case finding that public health restrictions either did not breach Charter rights or were justified under s. 1 of the Charter.[^64]

[105] In support of this statement the Court cited to, among other things, cases that upheld proof of vaccination and masking requirements;[^65] self-isolation requirements;[^66] hospital visitation restrictions;[^67] restrictions on religious and other in-person gatherings;[^68] and restrictions on inter- provincial travel.[^69]

[106] In Ontario (Attorney General) v. Trinity Bible Chapel, 2023[^70] the Court of Appeal gave the following additional guidance applicable to the consideration of constitutional challenges to Covid-19 restrictions:

(a) The Court cited with approval of the Motions Court Judge’s statement that it was not her role to choose between dueling experts on the science of Covid-19. The question was whether it was reasonable for Ontario to do what it did on the basis available to it at the relevant time.[^71]

(b) Hindsight is not the lens through which to assess government action. Historical measures must be understood against the backdrop of historical knowledge.[^72]

(c) The absence of definitive scientific knowledge, particularly in the early stages of Covid, is an important contextual element in understanding the constitutionality of the restrictions. It cited with approval of the statement of the British Columbia Court of Appeal in Beaudoin v. British Columbia (Attorney General)[^73] to the effect that:

The prospect of the exponential growth of COVID-19 cases was very real. Failing to act in a timely and reasonable way to prevent transmission in settings identified as high-risk could lead to the imposition of more extreme measures at a future date to curb the spread of the virus.[^74]

(d) Regulations were regularly revisited and modified in response to changing circumstances, and ultimately repealed.[^75]

(e) The government had a pressing and substantial objective in passing Covid-19 regulations “to reduce COVID-19 transmission, hospitalization, and death, and to mitigate threats to the integrity of the health care system.”[^76]

(f) When addressing rational connection, the Court noted that Ontario was not required to scientifically prove that the challenged regulations in fact reduced the spread of COVID-19.[^77]

(g) When addressing minimal impairment, the Court noted that “in areas of complex social and public health policy making, the debate regarding the appropriate degree of deference owed by courts to government takes center stage”[^78].

(h) It approved the motion court judge’s statement to the effect that the precautionary principle “is a key factor in matters of public health. It recognizes that, where there are threats of serious, irreversible damage, lack of full scientific certainty is not a reason to postpone harm reduction strategies. To wait for certainty is to wait too long. Clearly, Ontario was not required to wait for scientific unanimity on the properties of the pandemic before taking steps to prevent illness and death. We would still be waiting for that chimeric marker were it the catalyst for action.”[^79]

[107] This guidance largely disposes of the Plaintiffs’ claim. The Amended Claim asks the court to choose between potentially competing theories about public health measures. As the court noted in Trinity Bible Chapel, that is not the court's role. The role is to determine whether Ontario did what was reasonable at the time. The fact that the Plaintiffs might introduce information to challenge what Ontario did is irrelevant because Ontario's actions are not assessed with the benefit of hindsight but against the knowledge that existed at the time.

[108] None of this is to say that a government’s reaction to something like the Covid-19 pandemic is immune from Charter scrutiny. It is simply to say that the standard is not perfection, the regulations must be interpreted and judged against the context of the time in which they were enacted and that the courts have developed a well-thought-out analytical framework in which those regulations should be assessed and in which they have almost invariably been approved.

[109] A number of the cases to which the Court of Appeal cited in the passage quoted in paragraph 104 above are of particular relevance here. Examining some of those cases briefly helps demonstrate how impossible the plaintiffs’ Charter challenges are.

[110] In Toronto District School Board v. CUPE, Local 4400,[^80] a labour arbitrator addressed a challenge to a policy of the Toronto District School Board that required all employees to provide evidence of up‑to‑date vaccinations or proof of a valid medical exemption in order to return to work, failing which they would be put on an unpaid leave of absence. In finding that the policy did not violate section 7 of the Charter, Arbitrator Kaplan stated:

Section 7 of the Charter protects an individual’s right to decide: whether or not to be vaccinated. The Policy does not require mandatory vaccination. The Policy does not violate anyone’s life, liberty or security of the person. It does not mandate a medical procedure or seek to impose one without consent. If it did, the outcome of this case would certainly be different. The Policy had an impact on TDSB employees who decided not to attest and/or get vaccinated, but there is no basis to conclude that life, liberty or security of the person is in any manner impaired by the Policy and by the choices individuals make. Employees are not prevented in any way from making a fundamental life choice.

The law is settled: Section 7 does not insulate a person who has chosen not to be vaccinated from the economic consequences of that decision. Simply put, and as the union acknowledged in its FAQs made available to its members, Section 7 does not protect economic interests. Individuals have no Charter right to pursue or maintain a chosen profession. Nothing about the Policy interferes with anyone’s right to make a decision of fundamental importance: to be vaccinated or not.[^81]

[111] In Syndicat des métallos, section locale 2008 c. Procureur général du Canada,[^82] a group of employees challenged a ministerial order that required those working on trains, ships, and planes to be vaccinated. The plaintiffs alleged that the requirement that they be vaccinated violated their s. 7 right to liberty and security of the person, as it amounted to government influence regarding a deeply personal decision falling within the scope of s.7.[^83]

[112] Section 7 provides that

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[113] The court held that the order did infringe on s.7 rights, because the potential loss of employment introduced an element of coercion into the decision to become vaccinated[^84] but concluded that the employees were deprived of s. 7 rights in accordance with principles of fundamental justice. In doing so the court first identified the objective of the order as being to prevent the spread of COVID, to prevent those who were already sick from being exposed to variants of the virus, and to protect the operational integrity of the provincial supply chain.[^85] Although the consequences of the policy were wide-reaching and severe, given the expansive nature of the underlying objective, there were no demonstrated effects of the policy that were not rationally connected to the accepted objective.[^86] Similarly, while the court recognized that the personal consequences of the policy for the plaintiffs were important, they were no more important than the underlying objectives of protecting public health and critical infrastructure. [^87]

[114] The court also found that the infringement of the right was justified under s.1 of the Charter. In conducting that analysis the court concluded that the objective of protecting the travel and supply chain industries and the health of those working in them was pressing and substantial.[^88] The scientific evidence about the effectiveness of vaccination at preventing illness was sufficient to establish a rational connection between the objective and the means used to achieve it.[^89] Given the lack of available alternatives to reduce the spread of the virus, and the various exceptions to the policy on grounds such as religious beliefs and medical exemption, the policy, although wide reaching, was nevertheless minimally impairing.[^90] Finally the court held that any potential health risks or side effects of the vaccine were exceedingly rare. Although side effects they were serious when they did occur, that minimal risk was outweighed by the proven effectiveness of the vaccine at reducing the spread of the virus, and protecting the integrity of the Canadian transportation industry.[^91]

[115] In Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology,[^92] the applicants challenged the College’s regulation requiring students to be vaccinated before returning to campus, including on the grounds that it allegedly violated sections 2 (a), 7 and 15 of the Charter.

[116] The court rejected the applicants’ request for an interlocutory injunction. The court found that s.2(a) was not breached because the applicants could not establish a particular religious code or moral value system under which vaccination would be "wrong".[^93] Section 7 was not breached because the applicants made a choice not to become vaccinated. As a result, the policy did not coerce them to violate their bodily integrity. Section 15 was not violated because vaccination status was not an analogous ground of discrimination.[^94]

[117] In Banas v. HMTQ,[^95] a restaurant owner objected to requirements for restaurant patrons to be masked and vaccinated.[^96] The court held that s. 2 was not engaged because the law did not infringe on the plaintiff's ability to hold a conscientious objection to the regulation. Nor did it prevent her from expressing those views, peacefully assembling to express those views, or associating with others who shared them.[^97]

[118] In Sprague v. Her Majesty the Queen in right of Ontario,[^98] the applicant challenged regulations that restricted visitors to hospitals during the pandemic. The court ruled that the regulation did not breach s. 7 of the Charter because the policy was not overly broad, arbitrary, or grossly disproportionate. There was a legitimate connection between preventing the spread of Covid-19 to and from those that are already sick, and the policy restricting visitors. The restriction was not an absolute one, and was rooted in the prevailing science at the time.[^99]

[119] The plaintiffs have not pleaded any facts that could lead a Court to come to a different conclusion in this case than in those cited above. The plaintiffs do not plead any facts to support a claim that their right under any section of the Charter were infringed. They plead only bald conclusory statements. Where a person challenging a law’s constitutionality fails to provide an adequate factual basis to decide the challenge, the challenge fails. Charter cases cannot be considered in a factual vacuum. The absence of a factual base is not a mere technicality but is fatal.[^100]

[120] Section 7 does not protect the right to practice a profession.[^101] Although s. 7 does protect the right to make fundamental personal decisions like refusing medical treatment or making “reasonable medical choices” without threat of criminal prosecution,[^102] the plaintiffs do not allege that they were required to undergo any form of medical procedure under threat of criminal prosecution. They in fact remained unvaccinated and free of any such medical procedures.[^103]

[121] If courts have regularly upheld vaccine requirements for travel, school attendance, or restaurant visits where the populations involved are relatively healthy, they are all the more supportable in health facilities where the populations are more vulnerable.

[122] The Plaintiffs point to a number of cases that they say indicate that courts have found Covid-19 measures to be unwarranted. The cases the Plaintiffs rely on in support of their position are not helpful. They rely primarily on a number of American cases and a case from the Supreme Court of India. Given the ample law from Canadian courts on the issue, I do not find it necessary to address decisions from the United States or from India given that they deal with different legal regimes and do not bind me.

[123] The Plaintiffs do refer to several Canadian decisions which are easily distinguishable.

[124] The plaintiffs first refer to Sgt. Julie Evans et al. v. AG Ontario et al. and M.A. v. De Villa,[^104] both of which are short decisions which decline to dismiss an action under rule 2.1 which addresses dismissal of claims that are on their face frivolous and vexatious. A dismissal under rule 2.1 is substantially more difficult to obtain than are orders to strike under rule 21.

[125] The Plaintiffs then refer to J.N. v. C.G.,[^105] a decision involving a dispute between separated parents about whether their children should receive the Covid vaccine. The father was self represented. The judge dismissed his application because it was not based on evidence but “focussed extensively on labelling and discrediting the mother as a person.”

[126] Teamsters Local Union No. 31 v Purolator Canada Inc.[^106], is a labour arbitration case challenging an employer's vaccine policy. The arbitrator upheld the challenge on the particular facts of that case, principally that after June of 2022 and the lifting of the Federal vaccine mandate, banning unvaccinated workers from the workplace did not contribute to workplace safety and was no longer a reasonable or proportionate workplace safety measure.

[127] R. v. Fernando,[^107] was an appeal from a fine imposed for refusing to comply with a random covid screening under the Quarantine Act after entering Canada. The appeal was ultimately granted on the basis that the Act expressly did not authorise any form of insertion into the body as apart of the test, and the nasal swab test the enforcement officer requested was such an insertion.

[128] Canadian Constitution Foundation v. Canada (Attorney General),[^108] is simply the formal judgment of a judicial review striking a regulation. There are no reasons provided and no details of the nature of the regulation.

[129] The Canadian Charter cases the plaintiffs relies on are beside the point. For example, they rely on cases that hold that medical treatment without informed, voluntary, consent violates s.7 of the Charter and not saved by s.1.[^109] There is, however, no treatment here without consent.

[130] In light of the overwhelming trend of the case law upholding Covid-19 regulations as constitutional in a wide variety of contexts and the Plaintiffs’ failure to plead any new facts that would distinguish this case from those already decided, it is plain and obvious that the Plaintiffs’ charter challenge does not disclose a reasonable cause of action and must be struck out.

G. No Tenable Challenge to Declaration of Emergency

[131] Paragraph 1 (e) (i) of the claim seeks a declaration that the Covid measures and the declaration of an emergency invoked by the Defendants do not meet the prerequisite criteria of an “emergency” as prescribed by s.7.0.1(3) of the Emergency Management Civil Protection Act, and further contravenes s.7.0.2(1) and (3) of that Act.

[132] Section s.7.0.1(3) of the Emergency Management Civil Protection Act provides:

(3) An order declaring that an emergency exists throughout Ontario or any part of it may be made under this section if, in the opinion of the Lieutenant Governor in Council or the Premier, as the case may be, the following criteria are satisfied:

1. There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.

2. One of the following circumstances exists:

i. The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay.

ii. The resources referred to in subparagraph i may be insufficiently effective to address the emergency.

iii. It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph i can be relied upon.

[133] Sections 7.02(1) and (3) of the Act which the Plaintiffs say Ontario breached require that the purpose of making orders is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Charter and that the orders under the Act: shall be exercised in a manner that limits their intrusiveness; shall apply only in the areas of the province where necessary and shall be effective only for as long as necessary.

[134] The Plaintiffs have pleaded no facts to support their allegation that the prerequisites of s. 7.0.1(3) of the Act have not been met or that s. 7.0.2(1) and (3) of the Act were breached.

[135] A number of courts have taken judicial notice of the severity of the Covid pandemic which put it beyond doubt that Ontario had reasonable grounds at the time for believing that an emergency existed. Statements of that sort include the following:

(a) The COVID-19 pandemic will be recorded as a major event in human history. No one in our lifetime has been through anything like it. Although thankfully not on the scale of the Spanish flu of 1917-1918, it has left a trail of profound destruction and devastation. Some estimates put the eventual death toll in the millions.[^110]

(b) I take judicial notice of the following information released by the Government of Ontario describing the state of COVID-19 in Ontario as of April 3, 2020:

1. It is estimated that had no preventative action been taken, the number of COVID-19 cases would have risen to 300,000 infections with 6,000 deaths;

2. Public health and safety measures have avoided an estimated 220,000 infections and 4,400 deaths to date;

3. With the current public health measures in place, Ontario predicts between 3,000 and 15,000 deaths related to COVID-19. Without these measures, 100,000 deaths are projected; and

4. By implementing public health measures, Ontario estimates that the number of COVID-19 cases can be reduced to an additional 12,500 infections and 200 deaths by the end of April 2020.[^111]

(c) In the context of COVID-19, this Court and other courts have taken judicial notice that COVID-19 is a potentially deadly virus that is easily transmissible. Symptoms of the virus may vary from person to person according to age, health, and other comorbidity factors. The virus can mutate. Asymptomatic carriers of the virus can infect others. There is no known immunity to contracting the virus and no verifiable evidence of natural immunity to contracting it, or a known mutation, a second or more time.[^112]

(d) So what are the notorious or "accepted" facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:

(a) The Covid virus kills;

(b) The virus is transmissible;

(c) The virus can, and has, mutated;

(d) Variants of the virus are more transmissible than others;

(e) Asymptomatic carriers of the virus can infect other people;

(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;

(g) The virus does not discriminate;

(h) There is no known immunity to contracting the virus;

(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;

(j) Vaccines work;

(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children;

(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes…[^113]

(e) At times when community risk was elevated, the health care system was sufficiently fragile that even a small number of infections could have dire consequences.[^114]

The decisions made by public officials were supported by sound medical opinion, it was imperative to take meaningful and timely steps to protect the public from a deadly and unpredictable virus, and the measures were an “eminently reasonable” means of achieving public protection during the throes of a deadly pandemic.[^115]

[136] In light of that broad judicial consensus and in the absence of any pleaded facts to challenge the declaration of the state of emergency I am satisfied that it is plain and obvious that the Plaintiffs’ request for a declaration that Ontario had not met the prerequisites for the declaration of an emergency has no reasonable chance of success.

[137] As noted earlier, in Trinity Bible Chapel, the Court of Appeal noted, among other things, that:

a. Regulations were regularly revisited and modified in response to changing circumstances, and ultimately repealed.[^116]

b. The government had a pressing and substantial objective in passing Covid-19 regulations “to reduce COVID-19 transmission, hospitalization, and death, and to mitigate threats to the integrity of the health care system” and that the regulations must be “understood as operating within a comprehensive regulatory framework.”[^117]

[138] In light of those findings and the consistent findings that Covid-19 regulations did not breach the Charter, there can be no doubt that there was no violation of s. 7.0.2 (1) and (3) of the Act.

H. No Feasible Claim for Misfeasance of Public Office

[139] Justice Perell usefully summarized the elements of misfeasance in public office in Muirhead v. York Regional Police Services Board,[^118] as follows:

The tort of misfeasance in public office requires deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff; the defendant must know what he or she is doing is wrongful and have a conscious disregard for the interests of those who will be affected by the misconduct in question. Misfeasance in public office is an intentional tort; it is not directed at a public officer who inadvertently or negligently fails adequately to discharge the obligations of his or her office. As an intentional tort, it requires proof of subjective awareness that harm to the plaintiff is a likely consequence of the alleged misconduct or reckless disregard to the possibility that harm was a likely consequence of the alleged misconduct. (Citations omitted)[^119]

[140] The Amended Claim contains no factual allegations to make out any of the foregoing requirements for misfeasance of public office. In light of the statements courts have made about the pandemic and in light of the fact that Ontario’s measures were not out of line with measures taken by other democratically elected governments, it is plain and obvious that the allegations that Ontario and its ministers were disregarding their official duties when enacting Covid -19 measures have no reasonable chance of success. Nor is there any reasonable chance of success for allegations that Ontario and its ministers knew that what they were doing was wrongful.

[141] Finally, in their prayer for relief, the Plaintiffs allege in para. 1 (i) (iii) that the Government Defendants engaged in

The tort of abuse of process and malicious prosecution in charging those who refused such PCR tests with quasi-criminal offences and fines;

[142] There is no further reference to either tort in the Amended Statement of Claim nor are there any material facts pleaded in respect of either claim. There is no reference to which, if any, of the plaintiffs were charged with any offence, which, if any, of the Government Defendants had any involvement in those charges or any facts to support malice in respect of any such charges. Those claims must therefore also be struck out.

I. Miscellaneous Claims

[143] The pleading also advances a variety of miscellaneous claims in relation to various pieces of legislation and international treaties which have no chance of success. By way of example, the Plaintiffs assert that “coerced and mandatory testing” amounts to an offence under the War Crimes and Crimes Against Humanity Act; that “promoting, and executing, PCR testing” constitutes a criminal act under the Genetic Non- Discrimination Act; and that COVID-19 vaccines are “medical experimentation” amounting to a “Crime Against Humanity born out of the Nuremberg Code” and “also contrary to the Helsinki Declaration”.

[144] Once again, there are no material facts to support any of these claims. Similar claims were struck out in Action4Canada v. British Columbia.21 I do so hear as well. Those claims have no reasonable chance of success.

IV. Leave to Amend

[145] The general approach of courts when striking a statement of claim is to grant leave to amend unless the defects in the claim are clearly not capable of amendment. In my view the claims of at least the non-unionized employees are capable of amendment.

[146] The plaintiff Beth Ann Dick provides an example of the sorts of considerations at issue here when determining whether leave to amend should be granted. Ms. Dick was initially represented by Mr. Galati. She says that she was not informed about the specific claims that Mr. Galati made on her behalf, did not speak with him, and did not meet him to discuss the individual circumstances of her claim, nor was she aware of the types of legal argument that would be made on her behalf.

[147] She has since retained Mr. R. P. O’Connor who has delivered a more conventional fresh as amended statement of claim. It narrows the claim to solely that of Ms. Dick against her former employer, removes the allegations of Charter breaches, removes outlandish allegations of false pandemics and crimes against humanity, and clearly pleads the necessary facts underlying causes of action in tort, contract, and breach of statute that she advances.

[148] Mr. O’Connor’s proposed amended statement of claim is an example of a pleading that survives a challenge under Rule 21. I grant leave to Ms. Dick to file the amended pleading she proposes.

[149] I note that in the two other cases with statements of claim similar to the one filed here, the courts struck out the statement of claim but nevertheless granted leave to amend in accordance with the overall comments in the reasons to strike.[^120] I do so hear as well.

[150] As in those two other cases, it would serve no useful purpose here to conduct a paragraph-by-paragraph analysis to determine which paragraphs are struck out and which struck out paragraphs may be capable of amendment. I strike out the entire Amended Statement of Claim with leave to amend in accordance with these reasons. The overriding guidepost on amendment is that a claim in the nature of Ms. Dick’s fresh as amended pleading will withstand scrutiny. One that departs from its general tenor is likely to face challenges.

V. Costs

[151] The Non-Governmental Defendants seek costs of $208,456.69 plus disbursements of $27,132.55 for a total of $235,589.24.

[152] Ontario has delivered a bill cost which sets out its partial indemnity costs at $21,425.00 but in respect of which it seeks only $15,000.

[153] The Plaintiffs submit that no costs should be awarded because they are public interest litigants but that if costs were awarded, they should be fixed at an amount no higher than $47,462 which reflects their own partial indemnity costs.

[154] I do not accept that this was legitimate public interest litigation. Although I am prepared to accept that those Plaintiffs with knowledge of the contents of the Amended Statement of Claim may have subjectively believed in its merits, that does not make it in the public interest to advance the claim as drafted. The Amended Statement of Claim is so outlandish and so far outside of the spectrum of what is reasonable that there is no legitimate public interest in its pursuit. If this was not clear from the outset, it should have become clear by the time the British Columbia Supreme Court, the British Columbia Court of Appeal, the Federal Court, and the Federal Court of Appeal struck out similarly drafted statements of claim prepared by the same lawyer. While the interests of a free and democratic society may warrant leeway with respect to the pursuit of unconventional claims at the outset, when such claims continue to be pursued after being struck out by four courts, they amount to an abuse of public resources.

[155] There is no doubt that it would have taken considerable time for the Non-Governmental Defendants to investigate the facts underlying the 473 plaintiffs with respect to issues of jurisdiction. Although plaintiffs’ counsel criticizes the Non-Governmental Defendants for the amount of time they spent on the motion, it is worth noting that the time claimed comes to approximately $500 per plaintiff. No one would think twice about a costs order of $500 on a successful motion to strike out a statement of claim. The simple act of communicating about the particulars of each plaintiff, reviewing, understanding, and absorbing information in response and distilling that information into a motion record and factum would easily come to $500.

[156] It is also relevant to take into account the claim's inflammatory, unfounded, and outlandish allegations of conspiracy and misrepresentation.[^121]

[157] Plaintiffs’ counsel sets up his own partial indemnity costs of $47,462.00 as a proxy for a reasonable costs award. It should be kept in mind, however, that Plaintiffs’ counsel is a sole practitioner with a different cost structure than that of counsel for the Non-Governmental Defendants and that this is the fifth time that Plaintiffs’ counsel has litigated a motion to strike with respect to a claim of this nature. I expect having done this four times before, that there were significant cost efficiencies for Plaintiffs’ counsel, especially with respect to the factum.

[158] I am, however, alive to the likelihood of duplication of time given the number of lawyers the Non-Governmental Defendants had working on the file and would therefore reduce their costs, including disbursements to $175,000.

[159] I fix Ontario’s costs at $15,000 as requested.

[160] The parties have agreed that there will be no costs in respect of the motion of Ms. Dick.

Koehnen J.

Released: December 18, 2024

Schedule “A”

B E T W E E N:

Michelet Dorceus, Amynah Hirani, Oana-Andreea Istoc, Shelly Moore, Carol-Anne Parsons, Anne-Marie Sherk, (Bayshore Healthcare Workers)

-and-

Alexandra Newbold, (Brant Community Healthcare System)

-and-

Melissa Betts, Catherine Frustaglio, (Cambridge Memorial Hospital Workers)

-and-

Cristina Amorim, Lisa Avarino, Chelsea D'Almeida, (Centre for Addiction and Mental Health Workers (CAMH))

-and-

Danielle Cogghe, Sonia Couto, Amber DePass, Lauren Ives, Roxanne Jones, Desirea Lamoureux, Karen Metcalfe, Mary Margaret Raaymakers, Michelle Raaymakers, Erin Robitaille, Karen Roche, Amy Simpson, Erica Sower’s-Rumble, Rebecca Verscheure, Tina Waring, (Chatham Kent Health Alliance Workers)

-and-

Mike Belawetz, Jonathon Croley, Mona Hansen, Ryan Kreeft, Brittany Raymond, (City of Windsor Workers (EMS)) ~~(~~The Corporation of the County of Essex)

-and-

Maria Danho, Jennifer Jarrett, Erika Marrie, Crystal Mclean, Danuta Nogal, Beata Spadafora, Moustafa Yahfoufi, (Community Living Windsor Workers)

-and-

Karen Botham, Melissa Del Greco, Katie Friesen, Connie Grossett, David Sion, Nicole Ward, (Erie Shores HealthCare Workers (Leamington hospital))

-and-

Debra Bugg, Chantal Demera, Crystal Richardson, (Georgian Bay General Hospital Workers)

-and-

Denise Allan, Hafiza Ally, Csilla Ankucza, Brian Beatty, Amy Campbell, Bojan Gagic, Michael Goddard, Jacquie Haugen, Janet Izumi, Danielle Little, Alaa Maloudi, Martin Mueller, Jody Myers, Diane Radisic, Angela Robinson, Wanda Ropp, Sarah Roussy, Sherry Roussy, Sarah Samuel, Tatjana Suserski, Erika Toth, (Grand River Hospital Workers)

-and-

Tammy Algera, Jennifer Lefebvre, Melissa Leitch, Brenda Lowe, Jennifer Miske, Vinod Nair, Nicholas Rourke, Hetty Van Halteren, Jenna Widdes, (Grey Bruce Health Services Workers)

-and-

Sarah (Diane) Acker, Marija Belas, Kathy Cherneske, Sandra Cushing, Ruth Hanusch Leclerc, Laura-Beth Hewer, Laura Holmquist, Janet Nagy, (Halton Healthcare Services Workers)

-and-

Svitlana Alyonkina, Lisa Augustino, Angelika Biljan, Gary Blake, Laura Bosch, Darla Brocklebank, Ilija Bukorovic, Ryan Cino, Alma Cootauco, Susan Davis, Erica Demers, Natalie Djurdjevic, Colleen Gair, Katharine Gamble, Loredana Gheorghe, Mario Gheorghe, Sonja Jankovic, Cheryl Jordan, RosaMaria Jorey, Catherine King, Ashley Loeffen, Denis Madjar, Merima Mahmutovic, Shirley Morin, Calvin Murphy, Kristine Osenenko, Katarina Pavlovic, Andrea Power, Naomi Quiring, Brent Scarisbrick, Jocelyn Scholtens, Sharon Schuur, Rob Shortill, Liza Sibbald, Paola Sivazlian, Bethany Stroh-Gingrich, Lori Swan, Rachel Thibault, Susan Torenvliet, Tiffany-Anne Toulouse-Sauve, Brooke Vandewater, Taylor Vanyo, Benjamin Wencel, Justine Wieczorek, Monika Zawol-Zaprzala (Hamilton Health Sciences Workers)

-and-

Melissa Conley (Erie St.Clair), Janice Fisher (South West), Danielle Nowierski (Mississauga Halton), Daria Poronik (Toronto Central), Chantelle Seguin (Erie St.Clair), Veronica Sloan (Hamilton, Niagara, Haldimand, Brant), Trisha Stansfield (Erie St.Clair), Patricia Weaver (Mississauga Halton), (Home and Community Care Support Services Workers)

-and-

Jennifer Backle, Cheryl Baldwin, Tony Best, Sonia Carneiro, Melissa DeMelo, Susan Iori, Camille Mascowe, Antonietta Mongillo Debbie Oliveira, Kristine Sandoval, Felicia Ing-Tyng Tseng, Melanie Wegera, Nicole Welsh, (Hospital for Sick Children Workers)

-and-

Shauna Carriere, Jessica Clark-Carroll, Helena Feloniuk-Coaton, Bill Gerassimou, Jane Doe #1, Biljana Ignjatic-Ovuka, Biljana Josipovic, Tara Lauzon, Aleah Marton, Mihaela Opris, Salvatore Panzica, Jennifer Pedro, Breanne Poole, Danielle Qawwas, Jonathan Sandor, Michelynne Tremblay, Kattie Westfall, (Hotel Dieu Grace Healthcare Workers)

-and-

Albrecht Schall, (Humber River Hospital Worker)

-and-

Glenda Mendoza, (Huron Lodge & Schlegel Villages Worker (Aspen Lake)) (The Corporation of the City of Windsor)

-and-

Jeanette Bellamy, Odelia DaSilva, Zsuzsanna Kerestely, Wanda MacGrandles, Georgette Marshall, Kristin Matfin, Stevan Price, Shanna Pendakis, Kathleen Stringer, Martina Vulgan, Bailey Webster, (Joseph Brant Hospital Workers)

-and-

Chelsea Graham, Deborah Hogg, Cathy Houthuys, Jacqueline Vande Pol, (Lakeridge Health Workers)

-and-

Andrew Adamyk, Andrej Bosnjak, Laurie Bowman, Olga Collins, Tonia Coyle, Mary Eastman, Chiara Marie Elliot, Cathy Lindsay, Jessica Lindsay, Stephanie Liokossis, Heather MacNally, Maria Dorothy Moore, Georgia Murphy, Anita Murray, Mark Read, Katherine Robichaud, Nancy Sawlor, Christopher Squires, Lisa Starogianie, Allison Walsh, Lisa Wolfs (London Health Sciences Centre Workers)

-and-

Sharon Addison, Maxim Avtonomov, Marlene Brouwer, Cassandra Craig, Tasha Crump, Alex D'Souza, Christine L. Ehgoetz, Alyssia Elias, Chuck Evans, Vanessa Gallant, Dawn Greer, Rachel Lambkin, Christine Pritty, Kaitlyn Raso, Zorica Savanovic, Magen Scholtens, Catherine Seguin, Ada Talbot, Lianne Tessier, Megan Tiersma, Victoria Wright (Niagara Health System Workers)

-and-

Alison Margaret Bourre, Jenny Brown, Kathleen Burns, Lynne M.S. Cheff, Krista Leckie, Susan Mary Marcotte, Kristy Palmer, Charlene Splichen, Kathy Walsh, Sarah Walter, (North Bay Regional Health Centre Workers)

-and-

Sherri Bond, Ronnie Esau, Roman Goldshmidt, Arlene Kalmbach-Pashka, Kelvin Kean, Peter Mason, Kerry Scully, Kevin Snow, Bobbi-Jo Snow, Sheivonn Thompson, Kelly Lynn Woodrow, Goran Zdravkovski, (Ontario Shores Centre for Mental Health Sciences Workers)

-and-

Wendy Baerg, Rachel Blake, Paula Burke, Brianna Grantham, Norma Smith, Andrew Wilgress, (Orillia Soldiers Memorial Hospital Workers)

-and-

Nataliya Burlakov, Gabriele Caporale, Catherine Cox, Shelley Flynn, Sirpa Joyce, Amy McNutt, Shawn Riopelle, Slaven Savic, Robert Voith, Lori Wells, (The Ottawa Hospital Workers)

-and-

Jennifer Dixon, Kim Driver, Alexander Faulkner, Holly McDonald, Mandy Parkes, Katie Jeanette Pattison, Karly Marie Stothart, Breanne Townsend, (Peterborough Regional Health Centre)

-and-

Caseymae (Casey) Brant, Beth Ann Dick, Cynthia June Jordan, Matthew Langdon, Amanda Osbourne, Jonathan Raby, Sarah Rogerson, Rachel Runions, Dr. John Doe #1, Stephanie VanderSpruit, (Quinte Health Care Workers) (Quinte Healthcare Corporation)

-and-

Gabriela Borovicanin, Kristen Garcia, Madison Kristensen-Piens, Robin Millen, Cheryl Payne, Michelle Piens, (Riverview Gardens Long Term Care Chatham-Kent Workers)

(The Corporation of the Municipality of Chatam-Kent)

-and-

Caroline Goulet, Amir Hamed Farahkhiz, ~~(The Royal Ottawa Mental Health Care) ~~(Royal Ottawa Health Care Group)

-and-

Merilyn Gibson, Marcela Kollarova, Bożena Lassak, Gabriela Lassak, Gracjana Lassak Justyna Lassak, Paulina Lassak, Crystal Luchkiw, Sasha McArthur, Nadia Mousseau, Jenny Ramsay, (Royal Victoria Regional Health Centre Workers)

-and-

Cecile Butt, Darlene Crang, Jocelyn Ford, Melissa Idenouye, Lisa Marie Mountney, Jennifer Rands-Grimaldi, Judith Schoutsen, Holly Tucker, (Saint Elizabeth Home Health Care Workers) (Saint Elizabeth Health Care)

-and-

Sheila Daniel, Petrina Mattison, Karleen Smith, Eric Thibodeau, Lucy Thibodeau, (Scarborough Health Network Workers)

-and-

Sean Filbey, Musette Hoeppner, Glenda Mendoza, Janet Neuts, Cindy Sorenson, Cassandra Vaseleniuck Dunbar, (Schlegal Villages Workers)

-and-

Marina Anisimov, Oleg Anisimov, Cari Bradley, James Langille, Tammy Parker, Kelly Richards, Amanda Slik, Sheila Stiles, Mary Todd, Nataliya Veremenko, Anna Zamriga, (Southlake Regional Health Centre Workers)

-and-

Jesse Gratz, Sandra Zurkan, (St. Joseph’s Care Group)

-and-

Lisa Autuchiewicz, Alicia Badger, Carly Bennett, Robin de Groot, Charmaine Dupuis, Nikki Greenhow, Cheri Mitchell, Angela Stacey, Wendy Thornton, Alison Wilson, (St. Joseph's Health Care London Workers)

-and-

Byron Bolton, Michelle Cruz, Renee Daviault, Barb Fisher, Cheryl Jeffrey, Gail Magarrey, Graham Nishikawa, Jennifer Pluck, Rhonda Rohr, Brooke Simpell, Christine Vitez, Stanislaw Wroblewski (St. Joseph's Health Care Hamilton Workers)

-and-

Leigh Carroll, Vincent Cromie, Tammy Foster-Grieco, Donna Glenn, Galina Karataeva, Lorrie Poulin, Jelena Sorgic, (St. Mary's General Hospital Workers)

-and-

Joan Elizabeth Rosen (Extendicare)

-and-

Kyla Balke, Danny Budd, Susan Buob-Corbett, Judith Deschenes, Linda Fieldhouse, Darlene Freeman, Nicholas Kowalczyk, Lorena Legary, Cheri Mantel, Theresa Lynn Noyes, Denise Roy, Rhonda Michelle Rentz, Bryden C. See, Catherine H. See, Cindy Stolz, (Thunder Bay Regional Health Sciences Centre Workers)

-and-

Stephanie Bienias, Angele Bouchard, Tanya Bouvier, Carol Charters, Julie Joanisse-Gillis, Angele Samson, (Timmins and District Hospital Workers)

-and-

Derick Anderson Jr., Joanna Carabetta, Andrea R. DeVries, Juanita Diorio, Rosa Grobanopoulos, Panagiota Patricia Jovanovic, Katarzyna Kobylinski, Vanessa MacLeish, Rosemary Morgan, Veronica Pereira, Karen Rotham, Tianilla Weigert Corredoura, (Trillium Health Partners Workers)

-and-

Imelda Agustin, Jessica Boccadoro, Esther Carter, Diana de Medeiros, Bridget Doukas, LesleyAnn Faltine, Raymond Hogue, Tania Ilkiw, Nathan Le, Vincent Le, Julia Ordonez, Jenny Poon, Amedeo Popescu, Rosa Ramos, Ian Samuda, Fawn Schroeder, Sandra Silva, John Doe #2, Ageliki Tzakis, Yuriy Wankiewicz, Lorraine Welsh, (Unity Health Toronto Workers)

-and-

Cheryl Bamford, Romana Freitas, Danica Dana Jovanovic, Nadiya Kaminska, Joanna Kiwak, Magdalena Kulikowski, Anna Piri, Afrodite Vorvis, Danijela Vukovic, Elaine Walker-Esson, (University Health Network Workers (UHN)

-and-

Sarah Boyington, Corinna Gayle, Sara Hampton, Sheila Jean Mackie, Anna Pavsic, Victoria Tiessen, William Vowels, Josh Wahl, (Waypoint Centre for Mental Health Care Workers)

-and-

(WFCC Niagara Health System)

-and-

Michelle Bowler, Margaret Caminero, Jennifer Correia, Judith Dube, Jennifer Jitta, Joan Knight-Grant, Clayton Lewis, Wetshi Mbotembe, Dolores Peckham, Jolanta Pietrzykowski, Crystal Simm, Malgorzata Skrzypek-Aviles, Crestina Tolfo, Irene Veenstra, Jacqueline Watson, Sharon Yandt, (William Osler Health System Workers)

-and-

Sarah Adams, Ashley Bardsley, Diane Boin, Michelle Bourgoin, Esther Grace Bradt, Ada Chiarot, Dayna Crowder, Tommy Dang, Wendy Douglas, Nicole Faucher, Amanda Foster, Anna Maria Gelinas, Christopher Gignac, Breanne Gillen, Jessica Hebert, Nidia Ingoldsby, Edua Keresztes, Renata Kreeft, Rhonda Lamont, Kelly Loch, Jennifer Macri, Natalie Morrone, Kristina Neufeld, Alexandra Pepin, Clifford Rosen, David Sion, Lisa Trif, Elizabeth (Liz) Vaughan, Deborah Wiebe, (Windsor Regional Hospital Workers)

-and-

Kelly Ciriello, Samantha King, Leah Kittmer, (Woodstock General Hospital Workers)

PLAINTIFFS

-and-

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Ontario Premier Doug Ford, Former Minister of Health Christine Elliot, Current Minister of Health Sylvia Jones, Minister of Long Term Care Paul Calandra, Bayshore Healthcare, Belleville General Hospital, Brant Community Health Care System, Cambridge Memorial Hospital, Centre for Addiction and Mental Health, Chatham Kent Health Alliance, The Corporation of the County of Essex, Community Living Windsor, Erie Shores HealthCare, Extendicare, Georgian Bay General Hospital, Grand River Hospital, Grey Bruce Health Services, Halton Healthcare Services Corporation, Hamilton Health Services Sciences, ~~Home and Community Care Support Services ~~(Toronto Central Local Health Integration Network, Mississauga Halton Local Health Integration Network, Erie St. Clair Local Health Integration Network, Hamilton Niagara Haldimand Brant Local Health Integration Network, South West Local Health Integration Network), Hospital for Sick Children, Hotel Dieu Grace Healthcare, Humber River Hospital, Huron Lodge Long Term Care Home The Corporation of the City of Windsor, Joseph Brant Hospital, Lakeridge Health, London Health Services, Niagara Health System, North Bay Regional Health Centre, Ontario Shores Centre for Mental Health Sciences, Orillia Soldiers Memorial Hospital, The Ottawa Hospital, Peterborough Regional Health Centre, Quinte Health Care Quinte Healthcare Corporation, Riverview Gardens Long Term Care Chatham-Kent The Corporation of the Municipality of Chatham-Kent, Royal Ottawa Health Care Group, Royal Victoria Regional Heath Care, Saint Elizabeth Health Care, Scarborough Health Network, Schlegel Village, Southlake Regional Health Centre, St. Joseph’s Care Group, St. Joseph’s Health Care London, St. Joseph’s Health System, St. Mary’s General Hospital, Thunder Bay Regional Health Sciences Centre, Timmins and District Hospital, Trillium Health Partners, Unity Health Toronto, University Health Network, Waypoint Centre for Mental Health Care, William Osler Health System, Windsor Regional Hospital, Woodstock Hospital

DEFENDANTS

COURT FILE NO.: CV-22-00685694

DATE: 20241218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelet Dorceus et al. (See schedule A for complete list of plaintiffs)

Plaintiffs

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Ontario Premier Doug Ford, Former Minister of Health Christine Elliot, Current Minister of Health Sylvia Jones, Minister of Long Term Care Paul Calandra, Bayshore Healthcare, Belleville General Hospital, Brant Community Health Care System, Cambridge Memorial Hospital, Centre for Addiction and Mental Health, Chatham-Kent Health Alliance, The Corporation of the County of Essex, Community Living Windsor, Erie Shores HealthCare, Extendicare, Georgian Bay General Hospital, Grand River Hospital. Grey Bruce Health Services, Halton Healthcare Services Corporation, Hamilton Health Services Sciences, Home and Community Care Support Services (Toronto Central Local Health Integration Network, Mississauga Halton Local Health Integration Network, Erie St. Clair Local Health Integration Network, Hamilton Niagara Haldimand Brant Local Health Integration Network, South West Local Health Integration Network), Hospital for Sick Children, Hotel Dieu Grace Healthcare, Humber River Hospital, Huron Lodge Long Term Care Home The Corporation of the City of Windsor, Joseph Brant Hospital, Lakeridge Health, London Health Services, Niagara Health System, North Bay Regional Health Centre, Ontario Shores Centre for Mental Health Sciences, Orillia Soldiers Memorial Hospital, The Ottawa Hospital, Peterborough Regional Health Centre, Quinte Health Care Quinte Healthcare Corporation, Riverview Gardens Long Term Care Chatham-Kent The Corporation of the Municipality of Chatham-Kent, Royal Ottawa Health Care Group, Royal Victoria Regional Heath Care, Saint Elizabeth Health Care, Scarborough Health Network, Schlegel Village, Southlake Regional Health Centre, St. Joseph's Care Group, St. Joseph's Health Care London, St. Joseph's Health System, St. Mary's General Hospital, Thunder Bay Regional Health Sciences Centre, Timmins and District Hospital, Trillium Health Partners, Unity Health Toronto, University Health Network, Waypoint Centre for Mental Health Care, William Osler Health System, Windsor Regional Hospital, Woodstock Hospital

Defendants

REASONS FOR JUDGMENT

Koehnen J.

Released: December 18, 2024

[^1]: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 17(2).

[^2]: Rules of Civil Procedure, R.R.O. 1990, Reg 194, Rule 21.01(3)(a) [“Rules”].

[^3]: R.S.O. 1990, C P.40.

[^4]: Labour Relations Act, 1995, s. 48(1), S.O. 1995, c.1, Sched. A.

[^5]: Labour Relations Act, 1995, s. 48(1), S.O. 1995, c.1, Sched. A.

[^6]: St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 SCR 704 at pgs. 718-719, 720-721, (“St. Anne”); Weber, supra, at paras. 50-58; Coleman v. Demers at para. 21, (“Coleman”)

[^7]: Allen v. Alberta, 2003 SCC 13, [2003] 1 SCR 128, at para. 15.

[^8]: Allen v. Alberta, [2003] 1 SCR 128, at para. 15 [emphasis added].

[^9]: Weber, supra, at para. 43.

[^10]: New Brunswick v. O’Leary, at paras. 4 and 6.

[^11]: See paragraphs 4(a) 25, 54(a), 57(b) and (d), 64(a), 66(a), 78(a), of the Amended Claim.

[^12]: National Organized Workers Union v. Sinai Health System, 2022 ONCA 802.

[^13]: National Organized Workers Union v Sinai Health System at para. 38.

[^14]: All but Beth Ann Dick

[^15]: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929.

[^16]: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 at paragraph 55; more recently reaffirmed in Northern Regional Health Authority v. Horrocks, 2021 SCC 4 at para. 19.

[^17]: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 at para. 54.

[^18]: National Organized Workers Union v. Sinai Health System, 2022 ONCA 802.

[^19]: Tommy Dang, Jessica Hebert, Matthew Langdon, Crystal Luchkiw, Vinod Nair, Clifford Rosen, Albrecht Schall, David Sion.

[^20]: R.S.O. 1990, C P.40.

[^21]: Ibid at s. 36

[^22]: Ibid at s. 35 and 37.

[^23]: Ibid at s. 43(1).

[^24]: Beiko v Hotel Dieu Hospital St Catherines at paras. 53-54; aff’d at 2007 ONCA 860 at para. 4.

[^25]: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585.

[^26]: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 at para. 78. See also paras. 76-77.

[^27]: Statement of Claim paras. 1(a), 1)b), 2,4, 10, 21 and 22.

[^28]: Solgi v College of Physicians and Surgeons of Saskatchewan, 2022 SKCA 96.

[^29]: Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588.

[^30]: Riva Plumbing v Ferrari et al., at para. 2.

[^31]: Exhibits 10 – 13 of the Thomson Affidavit, pp. 369-382.

[^32]: Action4Canada v British Columbia (Attorney General), 2022 BCSC 1507; aff’d at Action4Canada v. British Columbia (Attorney General), 2024 BCCA 59.

[^33]: Adelberg v. Canada, 2023 FC 252; varied at Adelberg v. Canada, 2024 FCA 106 to grant leave to amend.

[^34]: Ibid. at para. 45

[^35]: R. v. Rajan, at paras. 36, 64; R. v. Phuntsok, at para. 26. See also: R. v. Phuntsok, 2020 ONSC 2158, at para. 26; O.M.S. v E.J.S., 2021 SKQB 243, at para. 113; Parmar v Tribe Management Inc., 2022 BCSC 1675 at para. 108; Steiner v. Mazzotta, 2022 BCSC 827 at para. 5, citing Dyquiangco Jr. v. Tipay, 2022 ONSC 1441 at para. 22.

[^36]: Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459.

[^37]: Ibid. at paras. 31-32.

[^38]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(2)(b); see also Dafesh v. Amormino, 2017 ONSC 1748 at para 31; Smith v. Her Majesty the Queen in right of Ontario et al., 2016 ONSC 7222 at para 48.

[^39]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 22; Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at paras. 30-31; Miguna v. Toronto Police Services Board, 2008 ONCA 799 at para. 20; Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 SCR. 441 at 455; Amrane v. Abraham, 2020 ONSC 6718 at para. 10.

[^40]: Hunt v. Carey Canada Inc. 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at para. 30.

[^41]: Nash v. Ontario (1995) 27 O.R. (3d) (C.A.); Hanson v. Bank of Nova Scotia (1994) 19 O.R .(3d) 142 (C.A.).

[^42]: R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991) 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778 (C.A.).

[^43]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 25.06(8).

[^44]: Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501 at paras. 88-89.

[^45]: Normart Management Ltd. v. West Hill redevelopment Co. Ltd., 1998 CanLII 2447 (ON CA)

[^46]: Normart Management Ltd. v. West Hill redevelopment Co. Ltd., 1998 CanLII 2447 (ON CA) quoting from Bullen, Leake and Jacob's Precedents of Pleadings, 12th ed. (London: Sweet & Maxwell, 1975), as follows at pp. 646-47.

[^47]: Some more recent examples include: Tran v. University of Western Ontario, 2015 ONCA 2295; Olenga v. British Columbia, 2015 BCSC 1050; Kent v. Translink, 2016 BCSC 224; Segal et al v. Hyperblock Inc. et al., 2022 ONSC 8303.

[^48]: R. v. Morgan, 2020 ONCA 279, at para. 8; R. v. Rajan, 2020 ONSC 2118, at paras. 36, 64; R. v. Phuntsok, 2020 ONSC 2158, at para. 26; O.M.S. v E.J.S., 2021 SKQB 243, at para. 113; Parmar v. Tribe Management Inc., 2022 BCSC 1675 at para. 108; Steiner v. Mazzotta, 2022 BCSC 827 at para. 5, citing Dyquiangco Jr. v. Tipay, 2022 ONSC 1441 at para. 22.

[^49]: Daishowa Inc. v. Friends of the Lubicon, (1996), 1996 CanLII 11767 (ON SC), 27 O.R. (3d) 215 at 12-3 (QL) (Div. Ct.), aff’d April 24, 1996, (unreported ON CA), aff’d (1997), 223 N.R. 157 (S.C.C.).

[^50]: Rahemtulla v. Vanfed Credit Union at paras. 50 - 54.

[^51]: Namely: the Corporation of the County of Essex, Erie St. Clair Local Integration Health Network, Hamilton Niagara Haldimand Brant Local Integration Health Network, Mississauga Halton Local Integration Health Network, Southwest Local Integration Health Network, Toronto Central Integration Health Network, and the Municipality of Chatham Kent (Riverview gardens)

[^52]: Including all matters relating to the Yukon Territory and Northwest Territories.

[^53]: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC).

[^54]: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), at para. 44.

[^55]: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), at para. 44.

[^56]: Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC).

[^57]: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) at para. 51.

[^58]: Occupational Health and Safety Act, R.S.O. 1990, c O.1, as amended.

[^59]: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 354 citing Moir v. The Corporation of the Village of Huntingdon, 1891 CanLII 36 (SCC); Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736 at paras. 5-6.

[^60]: Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736 at paras. 5-6.

[^61]: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353; Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736 at paras. 5-6.

[^62]: Harjee v. Ontario, 2023 ONCA 716.

[^63]: statement of claim paragraph 1(a) – (b).

[^64]: Harjee at para. 6 citing to: See for example: Canadian Constitution Foundation v. Attorney General of Canada, 2021 ONSC 4744; Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111; Banas v. HMTQ, 2022 ONSC 999; Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335 (Div. Ct.); Maddock v. British Columbia, 2022 BCSC 1605 (appeal dismissed as moot, 2023 BCCA 383); Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 1606 (appeal of individual applicant pending, 2023 BCCA 383); Beaudoin v. British Columbia, 2021 BCSC 512 (appeal dismissed, 2022 BCCA 427); Grandel v. Saskatchewan, 2022 SKKB 209; Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219 (appeal dismissed, 2023 MBCA 56); Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455; Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (appeal dismissed as moot, 2023 NLCA 22); Spencer v. Canada (Minister of Health), 2021 FC 621, [2021] F.C.R. 581 (appeal dismissed as moot, 2023 FCA 8).

[^65]: Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111; Banas v. HMTQ, 2022 ONSC 999; Maddock v. British Columbia, 2022 BCSC 1605 (appeal dismissed as moot, Kassian v. British Columbia, 2023 BCCA 383); Chowdhury v. HMTQ, 2023 ONSC 7190; Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 1606; Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455.

[^66]: Canadian Constitution Foundation v. Attorney General of Canada, 2021 ONSC 4744; Spencer v. Canada (Health).

2021 FC 621 (appeal dismissed as moot, Spencer v. Canada (Attorney General), 2023 FCA 8).

[^67]: Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335.

[^68]: Beaudoin v. British Columbia, 2021 BCSC 512 (appeal dismissed, Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427); Grandel v. Saskatchewan, 2022 SKKB 209; Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 218 (appeal dismissed, Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56); Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134.

[^69]: Harjee v. Ontario, 2023 ONCA 716 at para. 6; Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (appeal dismissed as moot, Taylor v. Newfoundland and Labrador, 2023 NLCA 22).

[^70]: Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134.

[^71]: Ibid. at para. 49.

[^72]: Ibid. at para. 52.

[^73]: Beaudoin v. British Columbia (Attorney General), 2022 BCCA 42.

[^74]: Beaudoin v. British Columbia (Attorney General), 2022 BCCA 42 at para. 268.

[^75]: Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134 at para. 57.

[^76]: Ibid. at para. 90.

[^77]: Ibid. at para. 96.

[^78]: Ibid. at para. 97.

[^79]: Ibid. para. 108.

[^80]: Toronto District School Board v. CUPE, Local 4400, 2022 CanLII 22110 (Ont. Arb.); cited with approval in Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111 at para. 84.

[^81]: Toronto District School Board v. CUPE, Local 4400, 2022 CanLII 22110 (Ont. Arb.) at p. 32.

[^82]: Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455.

[^83]: Ibid. at para. 58.

[^84]: Ibid. at para.176.

[^85]: Ibid. at para. 194.

[^86]: Ibid. at para. 102.

[^87]: Ibid. at para. 211.

[^88]: Ibid. at para. 218-227.

[^89]: Ibid. at para. 230.

[^90]: Ibid. at paras. 231-46.

[^91]: Ibid. at paras. 247-250.

[^92]: Costa, Love, Badowich and Mandekic v. Seneca College of Applied Arts and Technology, 2022 ONSC 5111

[^93]: Ibid. at para. 62-63.

[^94]: Ibid. at para. 94.

[^95]: Banas v. HMTQ, 2022 ONSC 999; see also Maddock v. British Columbia, 2022 BCSC 1605 for a similar result.

[^96]: Ibid. at para. 12.

[^97]: Ibid. at para. 27-29.

[^98]: Sprague v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2335

[^99]: Ibid. at paras. 47-51.

[^100]: Ernst v. Alberta Energy Regulator, 2017 SCC 1 at para. 22.

[^101]: Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 at para. 40; Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA) at para 43; Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393 at para. 187.

[^102]: R. v. Smith, 2015 SCC 34 at para. 18.

[^103]: Harjee v. Ontario, 2022 ONSC 7033 at para. 70; Ontario’s MR, Tab 2, pp. 49-50; Lewis v. Alberta Health Services, 2022 ABCA 359 at para. 56; Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 1606 at para. 141.

[^104]: M.A. v. De Villa, 2021 ONSC 3828.

[^105]: J.N. v. C.G., 2022 ONSC 1198.

[^106]: Teamsters Local Union No. 31 v. Purolator Canada Inc., 2023 CanLII 120937 (CA LA).

[^107]: R. v. Fernando, 2024 ONCJ 336 T.

[^108]: Canadian Constitution Foundation v. Canada (Attorney General), 2024 FC 38.

[^109]: Fleming v. Reid (1991), 1991 CanLII 2728 (ON CA), 48 O.A.C. 46 (CA); - Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

[^110]: R. v. Rajan, 2020 ONSC 2118.

[^111]: R. v. Phuntsok, 2020 ONSC 2158 at para. 26.

[^112]: Parmar v. Tribe Management Inc., 2022 BCSC 1675.

[^113]: Dyquiangco Jr. v. Tipay, 2022 ONSC 1441 at para. 22.

[^114]: Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344 at para. 25 quoting and affirming the motions judge.

[^115]: Ibid. at para. 28.

[^116]: Ibid. at para. 57.

[^117]: Ibid. at para. 90.

[^118]: Muirhead v. York Regional Police Services Board, 2014 ONSC 6817.

[^119]: Muirhead v. York Regional Police Services Board, 2014 ONSC 6817 at para. 87.

[^120]: Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507; aff’d 2024 BCCA 59; Adelberg v. Canada, 2023 FC 252, aff’d 2024 FCA 106.

[^121]: Manning v. Herb Ep, 2006 CanLII 35631 (ON SC) at para. 7; 1175777 Ontario Limited v. Magna International Inc., 2007 CanLII 23906 (ON SC) at para. 32, aff’d in 2008 ONCA 406.