Judicial Review and the COVID-19 Pandemic

Historically, the strongest support from Canadian courts for broad delegations of authority to executive officials has come in times of emergency. There may be scope for debate about whether the COVID-19 pandemic qualifies as an emergency, but there is no doubt that it has called for rapid, flexible responses on the part of public officials – exactly the sort of conditions favouring broad delegations of decision-making authority. When considering the lawfulness of government responses to the pandemic, Canadian courts have repeatedly emphasized the importance of deference, often in the context of applications for injunctive relief for allegedly over-inclusive public health measures but also when challengers have complained that public health measures are under-inclusive. Where courts have intervened to interfere with pandemic measures, they have done so at the margins and not called into question governmental policy decisions on how to combat COVID-19.

Challenges to Allegedly Over-Inclusive Public Health Measures

In Monsanto v. Canada (Health),[1] a journalist who had travelled to the United States to cover the presidential election campaign was ordered to quarantine on his return, and unsuccessfully sought injunctive relief. In considering whether the balance of convenience justified an injunction, Little J commented in expansive terms about the public importance of the quarantine requirements, noting the federal government’s “clear and unequivocal statement of the public interest” by invoking the Quarantine Act and the “cogent signal about the nature and severity of the risk to public health of the spread of COVID-19” sent by the imposition of a quarantine requirement on asymptomatic persons”.[2]

Beyond such general statements, Canadian courts have shown significant deference to political judgement and the expertise of medical officials when adjudicating on the merits of challenges to pandemic restrictions.

A striking example is Hudson’s Bay Company ULC v. Ontario (Attorney General).[3] This was a challenge to lockdown measures introduced in Ontario, in the city of Toronto and surrounding areas, in response to rising COVID cases in late 2020. “The Bay” is a department store quite like the American Macy’s or British John Lewis. The Bay argued that the regulations made arbitrary distinctions between department stores, which had to close, and ‘bigbox’ stores like Walmart and Costco, which could remain open. Moreover, The Bay suggested, the regulations had to “evidence-based” and, in the absence of any evidence identifying virus transmission in HBC stores or equivalent outlets, are accordingly invalid.

The challenge was unsuccessful: the overall objective of the empowering legislation was “to provide a flexible approach to balancing the health and safety of Ontarians during the pandemic against the province’s economic and business interests”; even if the measure was imperfectly designed, it was beyond the role of the courts to consider the “wisdom or efficacy” of the difficult policy choices made by the government.[4] The evidence relating to transmission in The Bay’s stores was, accordingly, neither here nor there.[5] As it went to the wisdom or efficacy of the measure, it was not relevant to determining whether the regulation fell within the broad statutory objective of balancing health and safety against economic and business interests.

Another example is provided by Taylor v. Newfoundland and Labrador, a case about an interprovincial travel ban. The Maritime provinces of New Brunswick, Nova Scotia, Newfoundland and Labrador and Prince Edward Island have followed a variety of zero-COVID policies, which have included strict travel bans. One of these bans was the subject of litigation in Taylor. Ms Taylor’s mother passed away. Ms Taylor was born in Newfoundland but had since become a resident of Nova Scotia. But she could not return for the funeral, because Newfoundland’s chief medical officer of health had instituted a travel ban: only provincial residents, asymptomatic essential workers and those with extenuating circumstances could enter. Two issues arose, one of federalism, one of fundamental rights. In terms of rights, the travel ban infringed s. 6 of the Charter of Rights and Freedoms, which guarantees mobility rights. However, the ban was justified under s. 1 of the Charter, which permits legislatures to impose proportionate limitations on Charter rights. In concluding that the ban sought to achieve a pressing and substantial objective and was narrowly tailored to meet the objective, the specialized expertise of the chief medical officer of health weighed heavily in the balance. Indeed, Burrage J commented very firmly:

[I]t is not an abdication of the court’s responsibility to afford the CMOH an appropriate measure of deference in recognition of (1) the expertise of her office and (2) the sudden emergence of COVID-19 as a novel and deadly disease.  It is also not an abdication of responsibility to give due recognition to the fact that the CMOH, and those in support of that office, face a formidable challenge under difficult circumstances.[6]

Having regard to these considerations, the province was entitled to institute a travel ban rather than relying on contact tracing or other alternatives. As in the non-constitutional challenges considered earlier, the courts showed significant deference to political and medical judgement. 

Challenges to Allegedly Under-Inclusive Public Health Measures

In this context, deference has cut both ways. The cases above involve challenges to governmental action on the basis that it imposed restrictions which were too severe. By contrast, in Trest v. British Columbia (Minister of Health), litigation was initiated in order to ensure more restrictive governmental action.[7] Here, two fathers with underlying health conditions applied for judicial review and injunctive relief requiring the Minister to: (1) refrain from transitioning from Stage 3 in the provinces “Restart Plan” where masks are not mandatory in classrooms or require the respondents implement a mandatory marks policy in classrooms, and (2) make an order compelling maintenance of physical distancing amongst students in same classrooms. They also made a Charter s.7 claim to support granting the interlocutory injunction. Both petitioners had school-age children and were concerned about in-class learning.  Basran J rejected the petition because the petitioners did not identify what authority either the Minister of Health or Education could make the orders they sought and the petitioners did not establish a strong prima facie case or that they would suffer irreparable harm if the injunction was not granted. Notably, the balance of convenience did not favour an injunction, as the petitioners did not adduce sufficient evidence to rebut the presumption that the Restart Plan served the public interest.[8]

Similarly, in Fédération autonome de l’enseignement c Dubé,[9] the Fédération autonome de l’enseignment (FAE) applied for provisional injunction requiring the Minister of Health, Dubé, and others, to offer quicker and priority access to COVID-19 testing. The FAE advanced the argument that the government’s return to school plan was inadequate and unsafe, notably with regards to mask removal and ventilation in classrooms.[10] The Court found that the government’s decision to re-open schools, and forcing teachers to offer their services in a school without rapid COVID-19 testing, is an unjustified violation of section 7 of the Canadian Charter of Rights and Freedoms, as well as of section 1 of the Charte québécoise. In applying the test for granting provisional injunctions (urgency, serious question, and irreparable/ serious prejudice if injunction is not granted), the Court rejected the FAE’s application. While the situation was urgent, there was a serious question at play, and the possibility of serious prejudice, the criteria of the balance of convenience was not satisfied.[11] 

Judicial Review At the Margins

This is not to say that Canadian courts have been entirely absent. The following decisions demonstrate that the courts have played an important role at the margins, not invalidating pandemic policy wholesale but nonetheless mitigating its impact in some areas.

In Conseil des juifs hassidiques du Québec c. Procureur général du Québec,[12] the Court clarified the rules relating to attendance in houses of worship, preferring the Conseil’s interpretation of the capacity limits in rooms with doors accessing the street to that which had been advanced by municipal enforcement officials. Although the injunction was refused, the Court’s analysis of the application for declaratory relief nonetheless gave the applicants much of what they were looking for.[13]

In a similar vein are the directions provided by the Federal Court of Appeal on the consequences of emergency federal legislation extending time limits in legal proceedings to take account of the disruption caused by the first wave of the COVID-19 pandemic: Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA).[14] Parliament passed An Act Respecting Further COVID-19 Measures,[15] but a question arose as to the effect of section 6 of the legislation. In the government’s view, the effect was to suspend retroactively all “time limits…established by or under an Act of Parliament” during the March 13-September 13 period and that “orders and directives issued” by the courts, concerning time limits or setting deadlines for procedural steps were ousted by section 6.[16] Whilst Noel CJ accepted that the legislation modified legislative time limits (so, for example, the time to seek judicial review or to appeal from the Federal Court to the Federal Court of Appeal was modified[17]), he could not accept that the legislation modified judicially imposed procedural steps in litigation:

Were it otherwise, confusion and potential harm—surely not desired by Parliament—would result. For example, orders requiring a proceeding to be prosecuted urgently on shortened time limits to further the public interest and to avert some harm or prejudice would be invalidated with retroactive effect. The invalidation of the Court order would often leave a vacuum in the regulation of the proceeding resulting in uncertainty, with prejudicial effect on the parties and the public interest. A proceeding that might be ready for hearing and decision in a week or so might, at the behest of a party desiring delay, have to be rewound by several months. To bring about that sort of result, section 6 would have to contain the clearest of legislative language. Section 6 does not use such language.[18]

Indeed, the Attorney General’s interpretation would infringe upon the separation of powers by interfering with core judicial functions – for that reason, the legislation had to be given a narrow interpretation.[19]

In these cases, judicial decisions clarified the scope of pandemic measures. Beyond this, there are examples of pandemic measures being invalidated in whole or in part.

Consider first Clinique juridique itinérante c Procureur général du Québec.[20] Here, the applicant, representing the interests of homeless individuals, challenged an order by the provincial government enacting a curfew requiring individuals to be outside of their residences between 8pm and 5am. The penalty for violating the curfew order was a fine between $1000 and $6000.

The Court granted an injunction suspending the application of the curfew order only with regards to homeless individuals. In other words, the measure could not be enforced against homeless individuals. The Court found that individuals facing homelessness suffered or would suffer irreparable harm from the measure. The Court took many factors into account, including that these individuals do not have a residence to return to, the possibility of contracting COVID-19 in shelters, the lack of access to shelters, and the need for many of these individuals to have to leave shelters at any point during the curfew hours due to mental health and alcohol/substance use issues. The Attorney General of Quebec even took the position that the contested provisions do not apply to homeless individuals.  The judge also noted that there are more than 3000 homeless individuals in Montréal alone. As such, the Court found that the balance of convenience was in favour of the partial suspension of the targeted measure. The government did not appeal this decision.[21]

Another example of judicial invalidation of pandemic measures at the margins is Bertrand v. Acho Dene Koe First Nation.[22] At issue here was the legality of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases).[23] Articles 2, 3 and 4 of the Regulations provided in respect of elections held under the Indian Act, the First Nations Elections Act and custom for unilateral extension of officeholders’ terms of office:

…if the extension is necessary to prevent, mitigate or control the spread of diseases on the reserve, the council of a First Nation whose chief and councillors are elected under that Act may, within 90 days before the day on which a tenure of office of the chief and councillors ends, extend that tenure.

These Regulations were made under ss. 73 and 76(1) of the Indian Act and s. 41 of the First Nations Elections Act. As the Federal Court observed, these enabling provisions were “not boundless”.[24] They did not encompass powers to unilaterally extend terms of office, especially in view of the fundamental importance of elections:

Parliament cannot have intended that a regulatory power that applies only to reserves would encompass governance issues, in particular elections. The scope of most of the powers granted by section 73(1), including the power to take measures to prevent, mitigate and control the spread of diseases in section 73(1)(f), is limited to reserves. This indicates that Parliament viewed these powers in terms of land management, not governance…[T]he territorial dimension of the powers enumerated in section 73 is an indication of Parliament’s will to grant regulatory powers over topics typically assigned to local authorities, such as the regulation of traffic or inspection of buildings…[But] the Regulations deal solely with elections. Most importantly, they directly regulate one of the basic parameters of democracy, the length of term of elected officials. Parliament cannot have contemplated that such a crucial feature could be changed by an incidental effect of regulations made for an entirely different purpose or regarding an entirely different subject matter.[25]

Again, however, the judicial interventions in these cases took place very much at the margins. Clarifying the scope of public health orders or legislation does not strike at the heart of governments’ pandemic policies. Invalidating orders to the extent they interfere with the rights of the homeless, or invalidating regulations permitting the postponement of elections, whilst important to the litigants, do not call into question pandemic policy generally.

[1]  2020 FC 1053.

[2] Monsanto,at paras. 109-110. See also Ingram v Alberta (Chief Medical Officer of Health), 2020 ABQB 806, where multiple applicants, including churches, sought an interlocutory injunction for temporary relief of portions of Chief Medical Officer of Health (“CMOH”) Order 42-2020 (“Order 42”) which prohibited persons from attending social gatherings at indoor and outdoor spaces and orders mandatory masks in all public indoor spaces. Kirker J commented at para 81:

I am bound by Supreme Court of Canada authority to assume that the Restrictions serve the public good; here, that they protect public health. I also have evidence from

[the chief medical officer]

explaining how, left unchecked, the virus is anticipated to spread, threatening people’s lives and the capacity of the health care system to provide patient care for Albertans who need it, whether as a result of COVID-19 or otherwise.

In Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185, the church Springs of Living Water Centre applied for urgent relief to enable its congregants to worship at the church, in their vehicles, in a “drive-in” mannerafter they received $1,296.13 in fines for “church in our cars”. At para 38, Joyal CJ observed:

I am of the view that there is a strong public interest in maintaining the integrity of the PHOs during a public health emergency.  This Court like all courts should be extremely cautious prior to granting a stay that risks undermining the respect for and the benefits of public health orders absent a full constitutional review on the merits.  The fact that these PHOs restrict rights cannot be denied.  For that reason, courts will purposefully take their place and assume their institutional role as an essential service and do their duty to ensure that these infringements are demonstrably justified.  That said, any determinations in respect of the application and operation of the impugned law, which has otherwise been duly enacted for the public good, will not be lightly made in advance of a complete constitutional review, which as the Supreme Court said in Harper is “always a complex and difficult matter”.

In Conseil des juifs hassidiques du Québec c. Procureur général du Québec, 2021 QCCS 281, Masse J commented at paras. 188-191

Le pilote aux commandes de l’avion québécois en construction a une tâche extrêmement difficile et complexe. Savoir quand il faut faire preuve de souplesse et quand il faut faire preuve de fermeté n’a rien d’évident. Une multitude de facteurs doivent être pris en considération, les tribunaux le reconnaissent. À mesure que l’avion se construit et plus le temps passe, des contraintes s’ajoutent et l’obligation de faire preuve de cohérence s’accroît. S’il faut retourner en arrière et déconstruire une partie des règles mises en place, parce que l’évolution de la pandémie l’exige, il faut le dire clairement et l’expliquer en temps utile afin que les citoyens à qui s’appliquent soudainement de nouvelles règles comprennent exactement ce qu’ils doivent faire et que les tribunaux puissent les faire respecter. Les tribunaux seront toujours là pour faire respecter la règle de droit. C’est le devoir dont la soussignée a tenté de s’acquitter par le présent jugement dans un contexte difficile et urgent. Encore un peu de courage, c’est mon souhait pour tous.

[3] 2020 ONSC 8046.

[4] Hudson’s Bay, at para. 71.

[5] Hudson’s Bay, at para. 81.

[6] Taylor, at para. 464.

[7] 2020 BCSC 1524.

[8] Trest, at para. 91.

[9] 2020 QCCS 3053.

[10] FAE, at paras. 15-16.

[11] FAE, at paras. 106-108.

[12] 2021 QCCS 281.

[13]  2021 QCCS 281, at paras. 97-101. In Springs of Living Water Centre, the Court clarified the scope of a public health order in the context of an application for injunctive relief, albeit on this occasion against the applicant.Joyal CJQB interpreted the application of the public health orders to the Church’s “church in our cars” initiative. He explained “church in our cars” was not compliant with s.2(1) because it involves persons in a grouping in general proximity to each other assembling for a common purpose or reason (at para. 62). He determined “remote means” in s.15(2) is a reference to technology different from what is used in the context of “church in our cars” and under s.2(2) “church in our cars” was not being used as a social service (at para. 70). Therefore, “church in our cars” was not compliant with the public health orders.

[14] 2020 FCA 137.

[15]  S.C. 2020, c. 11, s. 11.

[16] Section 6 Reference, at para. 4.

[17] Section 6 Reference, at para. 12.

[18] Section 6 Reference, at para. 17.

[19] Section 6 Reference, at para. 19.

[20] 2021 QCCS 182.

[21] Contrast AQPSUD (Association québécoise pour la promotion de la santé des personnes utilisatrices de drogues) c Procureur général du Québec, 2021 QCCS 2048. Here, the applicants were requesting a suspension of the curfew because it violated the rights of individuals that needed to access a supervised injection site. The use of supervised injection sites was one of the exemptions to the curfew, but the applicants advanced the argument that enforcers of the curfew were not permitting users to access the injection sites, and were even using a user’s request for accessing an injection site as a means of searching and seizing drugs, and arresting them for drug-related charges (paras 7-9). The Court found that there was a violation of the users’ rights, but that the curfew was in the best interest of the general public and that its suspension would be detrimental to the protection of public health (para 78). The Court indicated that, at this early stage of the file/case (there was also a judicial review in progress), this was not an extremely clear case that would convince the Court to exercise its discretion and grant the suspension (para 83).

[22] 2021 FC 287.

[23] SOR/2020-84.

[24] Bertrand, at para. 85.

[25] Bertrand, at paras. 91-93.

This content has been updated on December 22, 2021 at 15:52.