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PUBLIC HEALTH - Infection disease control measures - Courts - Jurisdiction

Friday, June 18, 2021 @ 1:32 PM  


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Application by Daneshvar for judicial review. Daneshvar was 28 years old. He arrived in Canada in 2013 as a refugee from Iran, where he was a soldier with the military for eight years. He experienced torture in that context. Because of the torture and a recent car accident, Daneshvar had several serious physical and mental health medical issues that affected his mobility, vision, and other aspects of his daily life. His first language was not English. Daneshvar was concerned that, once he was eligible for a COVID-19 vaccine, he would not be able to obtain a vaccine due to various barriers he faced. Besides his own circumstances, Daneshvar put forward affidavits sworn by three affiants who provided opinions on how, in their view, Ontario was failing to distribute COVID-19 vaccines equitably to vulnerable populations throughout the province. Daneshvar asked the Court to make several broad declarations, including a declaration that the respondents were responsible for the delivery of vaccines to people in the province and were thereby responsible for ensuring that vaccines were distributed equitably in accordance with the Canadian Charter of Rights and Freedoms and the Human Rights Code. The respondent Ontario argued that the application had no merit. Ontario submitted that Daneshvar failed to identify the exercise of a statutory power or the refusal to exercise a statutory power that gave rise to the application for judicial review. Ontario further submitted that the failure to do so meant that this Court did not have jurisdiction over the issues raised.

HELD: Application dismissed. There were at least two preconditions before the Divisional Court could grant a declaration on an application for judicial review. First, the declaratory relief sought had to arise from a statutory power. Second, there had to be an actual exercise, refusal to exercise, or proposed exercise of that statutory power. The Divisional Court did not have jurisdiction to make declarations about abstract questions regarding government action or inaction. For the most part, the relief sought by Daneshvar did not relate to the exercise of any statutory powers. To the extent that it did relate to the exercise of statutory powers, there had been no exercise, refusal to exercise, or proposed exercise of a statutory power. As a result, the Divisional Court had no jurisdiction to grant the requested relief.

Daneshvar v. Ontario (Minister of Health), [2021] O.J. No. 2438, Ontario Superior Court of Justice - Divisional Court, H.E. Sachs, N.L. Backhouse and L.G. Favreau JJ., May 5, 2021. Digest No. TLD-June142021009