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August 27, 2021

Notable pandemic public law cases

For some Canadians, the responses of public authorities to the COVID-19 pandemic are seen as tests of their constitutional rights. The oldest debate in public law — how to balance the interests of the community against the interests of the person — continues in Canadian courts with the pandemic as its focus. A few of the more noteworthy decisions are summarized here.

In Hudson's Bay Co. ULC v. Ontario (Attorney General), the court was presented with the issue of whether or not the pandemic restrictions are “irrational.” The Hudson’s Bay Company (HBC) took exception to a distinction in Ontario law permitting big-box stores that sold groceries to remain open but requiring those that did not to close or restrict public access. HBC claimed this distinction was untenable and prejudicial; Ontario considered it to be a policy choice well within the province’s discretion and that the court should not assess whether this policy is effective or not.

The court took a somewhat surprising road to get to their answer in favour of the Ontario government. Rather than following the reasonableness review as suggested by landmark administrative law case Vavilov, the court grounded its decision in the very deferential vires standard from Katz Group Canada Inc v Ontario (Health and Long-Term Care). This initiated a two-step test of first determining the purpose and scope of the authority under the enabling statute, and secondly assessing whether or not the regulation was authorized by a statute — both matters of statutory interpretation.

By design, this is a quite deferential standard and as such, legislation is generally only struck down when irrelevant or completely egregious. The court held that lawmakers are given wide latitude to make policy choices, and that the court’s role on judicial review is not to make determinations about the wisdom or efficacy of policies within the scope of a province’s executive authority. 

The application was dismissed and Ontario’s restrictions were allowed to stand. Of interest is how the court chose to decide this case: the court may have inadvertently reopened a thread of administrative law and review standards thought to be closed by the Supreme Court of Canada in Vavilov. Implications from this remain to be seen but could be the source of more confusion than clarity when deciding how to evaluate laws.

In Ingram v. Alberta, the court dealt with a legal challenge by churches and individuals claiming that restrictions against gatherings in religious settings had violated the Charter. They sought an injunction to stay the legislation and allow for gatherings. Pouring over the facts, the court ran through the test for an interlocutory or interim injunction — that is, an order preventing the legislation from being in force before the issue is conclusively examined by the court.

The court used the standard legal test for an injunction from RJR MacDonald Inc. v Canada, which requires a serious issue to be tried; the potential for or actuality of irreparable harm not compensable by damages; and whether the balance of convenience or inconvenience favours granting the injunction.

At the first stage, the court readily found that there was a serious issue to be tried given that there was an alleged Charter breach at hand, while also recognizing that this step is not a high bar to reach. At the second stage, the court moved on to look at whether or not there was irreparable harm in play.

The court in Ingram held that a finding of harm requires an evidentiary basis, as posed by a contemporaneous similar decision in Manitoba (Springs of Living Water Centre Inc. v The Government of Manitoba). Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal ruled against the church’s application to hold drive-in services.

While the Ingram court did in fact find a partial notion of irreparable harm in this case whereas the Springs’ court did not, they both found that for the most part, irreparable harm was not present where the religious leaders and organizations could proffer ways for their congregations to reasonably adapt.

To consider the balance of convenience, the court looked at how the public interest was affected, reviewing the role of the Chief Medical Officer of Health to create public health policies on behalf of the elected government with a view to protecting and promoting the general health of the public. Ingram also requested that the court look at whether the rule is effective, which the court declined to do. Though the court acknowledged the public interest of the exercise of religious freedom, they were not convinced this interest alone outweighs the harm to the health and well-being of the larger public — especially in light of how COVID-19 spreads — that suspending the restrictions would do.

As noted, this decision drew from, and reinforced, the earlier decision of the Manitoba Court of Queen’s Bench in Springs. All these decisions demonstrate that the onus remains on applicants to demonstrate that a particular government restriction is harming the public interest. It is a difficult challenge to make; the court remains reticent to act a parallel parliament. Despite this obstacle, a number of similar cases are before the Courts as of the date of this article. The slow decline of the pandemic has encouraged potential litigants to believe that the decision to retain restrictions, rather than the imposition of them, has a prejudicial effect on groups seeking to gather, such as religious practitioners. The outcome of those cases is unlikely to be any different.  

With vaccine passports and mandatory vaccination policies on the rise, the debate over whether COVID-19 vaccination mandates violate the Charter will continue in and out of courtrooms.

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Resource posted August 27, 2021, with reports from Michael Badejo.