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COVID - Vaccination
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. J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal reviewed the evidentiary onus that lies on someone resisting COVID measures for children, as it interrelates with judicial notice:Did the motion judge err by placing the onus on the appellant to show that the children should be vaccinated?
[37] For the reasons that follow, I would give effect to this ground of appeal.
[38] As mentioned, most family court decisions related to the pandemic, at least to this point, have deferred to the government recommendation that people, including children, get vaccinated against COVID-19. These decisions have been made in relation to decision-making, parenting time, travel, and education. In Chase v. Chase, 2020 ONSC 5083, 151 O.R. (3d) 422, Zinati v. Spence, 2020 ONSC 5231 and A.C. v. L.L., 2021 ONSC 6530 – all decided at a time when the Ontario government deemed in-person classes safe – the court held that the parent who did not want a child to attend was required to explain why, and to offer evidence in support. In a travel context – when the federal government recommended against unnecessary travel – courts have consistently held that the party seeking to travel with the child had the onus to establish that it was necessary: Yohannes v. Boni, 2020 ONSC 4756; Gillespie v. Jones, 2020 ONSC 2558.
[39] Courts have also found that parents must, as a condition to exercising parenting time, abide by government guidelines designed to slow the spread of COVID-19, and that the failure to do so will have consequences: A.T. v. V.S., 2020 ONSC 4198.
[40] In Dyquiango, the court held that vaccination itself was in the child’s best interests (absent compelling reasons to the contrary), which placed the burden squarely on the objecting parent and not the one defending a public health measure.
[41] While the motion judge acknowledges many of these decisions, he clearly viewed them as neither binding nor persuasive. While he was not obliged to adopt the reasoning in a court of coordinate jurisdiction, it was important for the motion judge to cogently explain why he was departing from decisions that had already addressed health-related parenting decisions in this same context.
[42] Instead of the cases listed above, the motion judge relied on the case of R.S.P. v. H.L.C., 2021 ONSC 8362. The court in that case, in a passage relied on by the motion judge, noted, at para. 58, that “[j]udicial notice cannot be taken of expert opinion evidence”, citing R. v. Find, 2001 SCC 32 (CanLII), 2001 S.C.C. 32, [2001] 1 S.C.R. 863, at para. 49.
[43] In my view, this statement, while generally accurate, is inapposite in this case, where the “expert opinion” in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness. In O.M.S v. E.J.S., 2023 SKCA 8, the Saskatchewan Court of Appeal, at para. 48, writes that:[I]n a family dispute, it is both unnecessary and, in most cases, unhelpful, for the parties and court to look for more than the approval of a drug, such as the Pfizer vaccine, together with any medical advice that may reasonably be required as to the risks and benefits to the child at issue, as the basis to conclude that it is in the child’s best interests to administer the drug. It is unnecessary because a parent is not obliged to prove, and a court is not obliged to consider or decide, that an approved drug is safe or efficacious when used in accordance with and to the extent specified in the approval – just as they need not consider whether medical advice from the family doctor meets that mark. In most cases at least, additional evidence is unhelpful because, absent sufficient evidence to the contrary, parents and courts are entitled to decide that a child should be treated with approved medications in accordance with the approval, subject, of course, to any child-specific medical concerns that may be in play, or other relevant factors. [44] Recall the two primary rationales for the public documents exception to the hearsay rule: the impracticality of traditional modes of proof, and the expectation that public servants perform their duties with a degree of diligence and care. It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. Requiring that opinion to be tendered viva voce in every case via live, human experts would be – especially in family court – unnecessarily burdensome.
[45] Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. That being the case, where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.
[46] The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal considered the 'public documents' hearsay exception and Evidence Act (Ontario) s.25 ['Copies of statutes, etc.']:[24] ... Moreover, the motion judge failed to consider whether the appellant’s information was admissible under either Ontario’s Evidence Act, R.S.O. 1990, c. E.23, or as a public document exception to the hearsay rule, nor did he apply the test for internet reliability, which he cited authority for when addressing the respondent’s materials.
[25] Section 25 of the Evidence Act provides that:Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be published by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession with the Queen’s dominions, shall be admitted in evidence to prove the contents thereof. [26] Under the public document exception to the hearsay rule, reports of public officials are admissible for the truth of their contents: R. v. P.(A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 (Ont. C.A.); A.C. v. L.L., 2021 ONSC 6530. While this speaks only to admissibility, and not to what weight a judge must ultimately assign to it, it is important to understand why s. 25 exists and why there is a common-law exception, which speaks not only to the inherent reliability and trustworthiness of records and reports generated by public officials, but also to avoid the inconvenience of public officials having to be present in court to prove them. Consider this passage from P.(A.), where Laskin J.A. wrote, at pp. 389-390, that:At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is “founded upon the belief that public officers will perform their tasks properly, carefully, and honestly”: Sopinka et al. The Law of Evidence in Canada (1992), p. 231. [27] Rand J. explained the rationale in Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93 (S.C.C.), at p. 95:The grounds for this exception to the hearsay rule are the inconvenience of the ordinary modes of proof and the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy [Emphasis added]. [28] Again, this does not compel a judge to give the evidence any weight, but given the purpose behind s. 25 and the public document exception, there is at least an obligation to explain why materials like those filed by the appellant are not trustworthy, which the motion judge’s reference to some of Canada’s historical misdeeds – all false equivalencies – fails to achieve.
[29] I would also note that there is no question that: 1) there is a COVID-19 pandemic; 2) this disease kills people, including children; and 3) the vaccines available to Canadians, including children ages 5 and older, have received regulatory approval. The problem, apart from the question of judicial notice, is that it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.
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[44] Recall the two primary rationales for the public documents exception to the hearsay rule: the impracticality of traditional modes of proof, and the expectation that public servants perform their duties with a degree of diligence and care. It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. Requiring that opinion to be tendered viva voce in every case via live, human experts would be – especially in family court – unnecessarily burdensome. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal allowed an appeal in part due to the trial court's evidentiary treatment of federal COVID government publications, particularly as judicial notice:Did the motion judge err by finding that the appellant’s evidence (from public health authorities and other well-known sources) was credibly disputed?
[20] I turn now to the motion judge’s treatment of the appellant’s evidence. The appellant filed, among other things, Government of Canada materials which speak to the importance of paediatric vaccination against COVID-19, possible side effects, and the testing and development of COVID-19 vaccines. While taking judicial notice of a fact is highly discretionary, I note that several courts have already taken notice of the safety, efficacy and importance of paediatric COVID-19 vaccines: I.S. v. J.W., 2021 ONSC 1194; A.B.S. v. S.S., 2022 ONSC 1368; Warren v. Charlton, 2022 ONSC 1088; Campbell v. Heffern, 2021 ONSC 5870. Some have even taken judicial notice of the fact that being vaccinated against COVID-19 is in the best interests of a child, unless there is a compelling reason not to: Dyquiangco Jr. v. Tipay, 2022 ONSC 1441; Rashid v. Ayanesov, 2022 ONSC 3401; Davies v. Todd, 2022 ONCJ 178.
[21] In this case, the motion judge declined to do so, taking the position that the safety and effectiveness of the vaccine is not a notorious, well-known fact, and is the subject of debate among reasonable people. I need not decide whether judicial notice should be taken of the public health and government information adduced by the appellant, as the motion judge fell into error in other respects, including by treating government approval of the vaccine as irrelevant.
[22] As Hackland J. wrote in A.M. v. C.D., 2022 ONSC 1516, at para. 27:If we exclude Health Canada advisories from the assessment of whether vaccines are safe, the court will be left in most cases with whatever random information the parties are able to download from the internet. The court often lacks the expertise or the resources to assess this information. In JN, the court was reassured that the mother’s downloads included qualified and reputable sources. Dr. Robert Malone was the primary example referred to. A Google search will, however, disclose that Dr. Malone was barred by Twitter for violating the platform’s coronavirus misinformation policy and includes a recent Washington Post article stating that Dr. Malone’s “claims and suggestions have been discredited and denounced by medical professionals as not only wrong, but also dangerous”. The point being that internet downloads are simply not reliable in many instances, particularly when contrasted with public health advisories. [23] Instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events – such as residential schools and internment camps, as well as the fact that courts across the country routinely find that the government (i.e., police) violates people’s Charter rights – as a reason to not place reliance on government sources generally. He wrote, at para. 67 of his reasons:Why should we be so reluctant to take judicial notice that the government is always right?
a) Did the Motherisk inquiry teach us nothing about blind deference to “experts”? Thousands of child protection cases were tainted – and lives potentially ruined – because year after year courts routinely accepted and acted upon substance abuse testing which turned out to be incompetent.
b) What about the Residential School system? For decades the government assured us that taking Indigenous children away – and being wilfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies.
c) How about sterilizing [Inuit] women? The same thing. The government knew best.
d) Japanese and Chinese internment camps during World War Two? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.
e) Few people remember Thalidomide. It was an experimental drug approved by Canada and countries throughout the world in the late 1950’s. It was supposed to treat cancer and some skin conditions. Instead, it caused thousands of birth defects and dead bodies before it was withdrawn from the market. But for a period of time government experts said it was perfectly safe.
f) On social issues the government has fared no better. For more than a century, courts took judicial notice of that fact that it was ridiculous to think two people of the same sex could get married. At any given moment, how many active complaints are before the courts across the Country, alleging government breaches of Charter Rights? These are vitally important debates which need to be fully canvassed.
g) The list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.
h) And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
i) When our government serially pays out billions of dollars to apologize for unthinkable historic violations of human rights and security – how can we possibly presume that today’s government “experts” are infallible?
j) Nobody is infallible.
k) And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review. [24] The motion judge then reinforced these inapt comparisons by characterizing the appellant’s evidence as “somewhat narrow and repetitive” and by indicating that the appellant’s attack upon the respondent’s position was “misguided and inaccurate”. ... . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal allowed an appeal from a media-notorious family law application where the trial judge allowed admission of, and gave weight to, internet COVID literature without qualifying it as expert opinion:Did the motion judge err by accepting and relying on the respondent’s online resources as expert evidence and by finding that they raised legitimate concerns about the safety, efficacy and need for the COVID-19 vaccine?
[11] While the parties consented to the motion judge receiving their unsworn online materials, he was not bound to admit or give it any weight. In his reasons, the motion judge writes that “at the very least, [this evidence] informs me as to the type and quality of research each parent conducted in formulating their respective positions”. In the end, he gave little weight to the materials presented by the appellant noting that “I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere.” He further asked, “How can you take judicial notice of a moving target?” However, he gave considerable weight to the respondent’s appended materials which he treated as “expert” evidence in support of the respondent’s position that there were too many unanswered questions about the vaccine.
[12] The appellant’s chief complaint is that the motion judge did not properly scrutinize the respondent’s evidence and did not consider whether any of it satisfied the threshold criteria governing the admission of expert evidence – including whether the experts were qualified, independent and unbiased: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The motion judge did cite and rely on two cases: ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, 29 C.P.R. (4th) 182, and Sutton v. Sutton, 2017 ONSC 3181, which apply a common law test for the admission of online materials. They stand for the proposition that information obtained from the Internet can be admissible if it is accompanied by indicia of reliability, including, but not limited to:a) whether the information comes from an official website from a well-known organization;
b) whether the information is capable of being verified; and
c) whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed. [13] This guidance, however, is not a substitute test for the admissibility of expert evidence, and the motion judge did not refer to any of the leading cases on the topic, including White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. Few of the materials presented by the respondent even meet the criteria set out in the internet reliability cases cited by the motion judge. Indeed, the Federal Court in ITV Technologies stressed, at para. 18, that “little or no weight should be given” to information found online without “careful assessment of its sources, independent corroboration … and assessment of the objectivity of the person placing the information on-line”. The motion judge did not adequately heed this warning.
[14] For example, among the documents filed by the respondent were articles from ‘Total Health’ and ‘Contagion Live’, both of which purport to be medical journals. One document is titled, “Are people getting full facts on COVID vaccine risks” which quotes one Dr. Robert Malone, who claims to have invented the mRNA vaccine. Dr. Malone is, in fact, quoted several times; the motion judge concluding that “[w]ith [Dr. Malone’s] credentials, he can hardly be dismissed as a crackpot or fringe author”. Other people cited in this article are described by the motion judge as “well known leaders in their fields” and as “qualified and reputable sources”. The difficulty is, it is not entirely clear how anyone could conclude, from what the respondent filed, that Dr. Malone actually invented the mRNA vaccine or that any of those cited in the article are “well known leaders” in their respective fields. There was no basis to draw either of these conclusions.
[15] As the appellant points out, one author in particular, Dr. Tess Lawrie, simply penned an open letter posted on a website called ‘The Evidence-Based Medicine Consultancy Ltd.’, which appears to be a self-publication. The motion judge’s description of Dr. Malone, Dr. Lawrie and the other authors cited by the respondent – as leaders in their fields – seems to be based on nothing more than their ability to either create a website or be quoted in one. There is no apparent or verifiable expertise.
[16] While the motion judge did not expressly conclude that these people are experts, his reasons make it clear that he relied on them as such. For example, while ultimately concluding that there is no clear expert opinion on the benefits of vaccination, he proceeded to refer to Dr. Malone as an “equally competent and credible medical professional”. In fact, he went one step further by writing, at para. 79, that the “professional materials filed by the mother [are] actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father”.
[17] In my view, the motion judge fell into error by not assessing whether each document presented by the respondent was reliable, independent, unbiased and authorized by someone with expertise in the area. Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.
[18] The motion judge also ignored the fact that, notwithstanding the well-known side effects (which are detailed in the Pfizer Fact Sheet filed by the respondent), the vaccine has been approved for children ages 5 and older by all regulatory health agencies, including Health Canada and the Center for Disease Control and Prevention. The motion judge seemed to find justification for the respondent’s position that the children should not be vaccinated (either because the vaccine is unsafe, or because not enough is known about it) because of Pfizer’s knowledge about potential side effects, which it is required to disclose by law. By doing so the motion judge treated the respondent as an expert in assessing pharmaceutical disclosure, while essentially dismissing those who are best positioned to interpret this information, public health authorities, who know how to factor the possibility of side effects into the approval process.
[19] The information relied upon by the respondent was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all. This was a palpable and overriding error and I would, therefore, give effect to this ground of appeal. . National Organized Workers Union v. Sinai Health System
In National Organized Workers Union v. Sinai Health System (Ont CA, 2022) the Court of Appeal heard (and dismissed) an appeal from a denial of a union's application seeking an interlocutory injunction against a hospital's COVID vaccination policy, pending the outcome of a grievance. The quotes below only set out the history of the case for COVID interest:Background and decision of the application judge
[4] The appellant, a labour union, is the certified bargaining agent for over 500 employees at the respondent hospital. The majority of members of the appellant have jobs with direct patient interaction, including as porters, dietary aides, operating room attendants, and housekeeping attendants.
[5] The respondent is a hospital providing healthcare to members of the public through three campuses: Mount Sinai Hospital, Hennick Bridgepoint Hospital, and the Lunenfeld-Tanenbaum Research Institute.
[6] Ontario’s healthcare sector has faced an array of risks during the pandemic. Between February 16, 2020 and June 12, 2021, 568 COVID-19 outbreaks were reported to have originated from within hospitals. When the application was heard, there had been 24,722 COVID-19 cases among Ontario health sector workers.
[7] Health Canada approved the use of COVID-19 vaccines in December 2020. The respondent thereafter sought to have its eligible workforce vaccinated by providing vaccine access and educating its workers on the efficacy and safety of the vaccine.
[8] Ontario’s Chief Medical Officer of Health introduced Directive #6 on August 17, 2021. The Directive mandated every healthcare sector employer to develop and implement a policy that required hospital employees to provide their vaccination status to their employer and, if not fully vaccinated, to submit to regular testing and reporting. In response to the Directive, the respondent implemented a “vaccinate or test” policy, which required employees to report their vaccination status and, if not fully vaccinated, to report two test results every week to Occupational Health. The respondent responded to non-compliant employees with an expedited progressive discipline approach.
[9] On October 26, 2021, the respondent implemented a mandatory vaccination policy (the “Policy”). This is the Policy which underlies the injunctive relief sought in this appeal. The Policy required employees to be fully vaccinated against COVID-19 by December 9, 2021 or their employment would be terminated, subject to medical or non-medical exemptions. To be fully vaccinated by December 9, 2021, an employee would need to have had their first dose administered by November 11, 2021.
[10] The respondent’s Executive Vice President, People & Culture, and Chief Human Resources Officer outlined several reasons for the mandatory policy. These included: (1) the unreliability of rapid antigen testing; (2) problematic compliance rates among staff under the “vaccine or test” approach; (3) specific incidents of the respondent’s staff being denied access to partner hospitals because they could not show proof of vaccination, which jeopardized urgent patient care; (4) the Ontario COVID-19 Science Advisory Table’s strong support for a vaccine mandate for hospital workers; (5) the Ontario Hospital Association’s recommendation for a vaccine mandate; and (6) the conclusion of an operational risk assessment undertaken by the respondent. Although the provincial government declined to impose a province-wide vaccine mandate on healthcare workers, the Minister of Health indicated the province’s support for hospitals to make their own decisions on vaccine mandates.
[11] On November 3 and 4, 2021, the appellant filed a number of grievances against the Policy. The grievances allege that the Policy is unreasonable, and that it violates various articles of the collective agreement as well as various pieces of legislation.
[12] On November 5, 2021, the appellant commenced an urgent motion (later converted to an application) seeking an injunction to enjoin the respondent from enforcing the Policy pending the arbitration of the grievances.
[13] As of November 11, 2021, approximately 20 NOWU members had failed to submit proof of receipt of their first vaccine dose. I address in more detail the evidentiary basis for the application as it relates to the grounds of appeal in the course of the analysis below.
[14] The respondent raised a preliminary issue before the application judge, whether she should exercise the Superior Court’s residual jurisdiction in labour relations matters to grant injunctive relief pending the arbitration of the grievances in the circumstances of this case.
[15] The application judge dismissed the application for an interlocutory injunction. ... . Thirlwell v. College of Physicians and Surgeons of Ontario
In Thirlwell v. College of Physicians and Surgeons of Ontario (Div Ct, 2022) the Divisional Court considered, and dismissed, a judicial review of interim requirements placed on a psychiatrist by the College when issuing COVID vaccination exemptions.
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