The Ontario Government brought a motion in Toronto to ask that an Ottawa litigant be required to have his vaccine mandate Charter challenge case heard in Toronto, where an existing (and similar) case was already before the court, and slated to be heard in July, 2022.
The Government’s motion was denied. As such, the Ottawa litigant is free to pursue his case in Ottawa, in the normal course of events, and separate from the Toronto litigation.
Normally the courts are very willing to join similar cases for the sake of expediency and consistency in rulings, but this judge reminds us that it is still important to join apples with apples. Although broad brushing the two cases as Vaccine Mandate Charter challenges, the judge pointed out that the two cases had some unique differences that made it improper to lump them into the same basket. Primarily, these were:
- A) the Ottawa claimant also had claim that the vaccine mandates violated the Ontario Human Rights Code. This was not an argument raised in the Toronto case. As such, there was questionable savings in shifting the Ottawa case from venue-to-venue. For example, if the Charter challenge didn’t invalidate the mandates, the Ottawa claimant would then still have to argue his case in Ottawa under the Human Rights Code; and
- B) the manner in which the two cases were started were significantly different. The Toronto case was started by way of a Notice of Application. The Ottawa case was started by way of a Statement of Claim. Applications are generally more expeditious, and have less onerous production and discovery processes. Claims on the other hand, tend to be lengthier, and have more onerous production and discovery processes. The import of this is that by forcing the Ottawa claimant to join into a Toronto Application case, the government in essence would be forcing the Ottawa claimant to forego the more fulsome discovery rights that come with his Claim. It is arguably not proper to deny the Ottawa claimant of this right.
From a practical perspective, it appears that the Toronto litigant(s) chose expediency over fulsome discovery rights, whereas the Ottawa litigant chose fulsome discovery/disclosure opportunities over expediency. Both have their pros and cons. The Toronto litigants may get redress quicker, but it potentially comes at the risk that they won’t “discover” all the warts in the governments case. The Ottawa litigant, on the other hand, may discover more of the government’s warts, but the redress may come too late.
But we cannot lose sight of the fact that litigants can have different needs: some may desperately need a law changed or struck (to gain access to a loved one, for example), while other litigants may simply want to make a point, and are not in a desperate need for a law or mandate to be struck.
This case also helps to confirm that the courts are indeed dealing with Vaccine Mandate Charter challenge cases. Often we hear commentary questioning “why is no one taking the government to court” on the vaccine mandates, and for whatever it is worth, this case unequivocally confirms that these challenges are being advanced, and in different cities.
Chowdhury v. Her Majesty the Queen in right of Ontario, 2022 ONSC 991
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc991/2022onsc991.html