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JUDICIAL REVIEW OR STATUTORY APPEAL - Matters not subject to review

Monday, May 25, 2020 @ 9:33 AM  

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Application by Sprague for judicial review of the respondent Hospital’s no visitor policy imposed because of the COVID-19 pandemic on the basis that it infringed his rights under ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The applicant also argued that the Chief Medical Officer of Health’s Memorandum recommending that the hospitals allow only essential visitors and containing guidance on what essential visitors might mean also violated his father’s rights under s. 15 of the Charter. The applicant’s elderly and incapacitated father was hospitalized in March 2020. The applicant was his substitute decision maker. Because of the new hospital policy, the applicant had been unable to visit his father. 

HELD: Application dismissed. The Visitor Policy to restrict visitors during the COVID-19 pandemic did not involve the exercise of a statutory authority nor was it of a sufficiently public character to meet the test for judicial review. No Charter breach had occurred. The Memorandum was not a binding directive under s. 77.7(1) of the Hospital Protection and Promotion Act. The Memorandum did not constitute an exercise or purported exercise of a statutory power and was not subject to judicial review. It was not issued pursuant to statutory authority, nor was such authority necessary. The Memorandum had no legal force. It did not statutorily compel any person or party to take or refrain from taking any action. The Visitor Policy did not create a distinction based on an enumerated or analogous ground nor did it reinforce, perpetuate, or exacerbate a disadvantage. The Visitor Policy was not, in its intent or impact, based on presumed characteristics of those who were over a certain age or who have mental disabilities. The decision to restrict visitors to the Hospital was a valid medical concern relevant to protecting patient safety. The Visitor Policy was not arbitrary but based on medical knowledge and expert judgment. It was therefore not discriminatory but a responsive medical determination. The applicant was able to fulfil his statutory obligations as statutory decision maker with or without physical access to his father. The Visitor Policy was neither arbitrary nor overbroad. It was not a grossly disproportionate response to the pandemic and did not thus breach s. 7. The Visitor Policy was not a sanction imposed by a conviction or anything akin to a conviction. Neither his father nor the applicant was subject to active state control of any kind. Section 12 was not engaged in the circumstances of this case.

Sprague (Litigation guardian of) v. Ontario (Minister of Health), [2020] O.J. No. 1699, Ontario Superior Court of Justice - Divisional Court, N.L. Backhouse, T.R. Lederer and M.A. Penny JJ., April 17, 2020. Digest No. TLD-May252020001