In Chowdhury v. Her Majesty the Queen in Right of Ontario, 2022 ONSC 991, the plaintiff commenced a civil action in Ottawa against Her Majesty the Queen in Right of Ontario (“Her Majesty”) seeking to invalidate mandatory COVID-19 vaccination laws pursuant to the Charter of Rights and Freedoms (“the Charter”) and the Ontario Human Rights Code (“the Human Rights Code”).
Her Majesty brought a motion, which was heard before Justice Myers, Regional Senior Justice of the Toronto Region, to move the action from Ottawa to Toronto. Further, Her Majesty sought direction for the Charter issues to be heard with another application that is scheduled to be heard in Toronto in July 2022, seeking the same relief.
Justice Myers dismissed the motion.
The plaintiff commenced his action with the intention of establishing that the laws barring him from attending restaurants, gyms, and other publicly available spaces in Ottawa because of his vaccine status violated his Charter rights (specifically, ss. 2(a), 7, 8 and 15 of the Charter). He claims that he is facing discrimination based on his age and race.
A separate application has been commenced in Toronto by different applicants, which also challenges the vaccine laws. The applicants claim that these laws violate the Charter. The Toronto applicants do not make claims pursuant to the Human Rights Code.
According to Her Majesty, the Toronto applicants had left time in their schedule to allow the plaintiff to participate in the application hearing to make his Charter arguments (but not the Human Rights Code arguments) when that application is heard in July.
The Toronto applicants did not attend the hearing before Justice Myers, and the plaintiff advised that he was not consulted in the scheduling discussions for the Toronto application. The plaintiff was of the position that, should he be forced to join the hearing of the application, it would need to be increased in length from two to four days, as his Charter claims were distinct from that of the Toronto applicants.
The plaintiff argued that his Charter arguments were based on allegations that he was being discriminated against on the basis of his age and race, which he believed differed from that of the Toronto applicants, who alleged that their discrimination arose from their status as unvaccinated individuals.
Her Majesty sought to transfer the action from Toronto to Ottawa, and for an order that the Charter issues be heard on the basis of pre-trial evidence obtained pursuant to Rule 36 of the Rules of Civil Procedure. Her Majesty sought to stay the Human Rights Code issues pending the outcome of the application.
In relying on Rule 36, Her Majesty sought to avoid characterizing the hearing in Toronto as a motion for partial summary judgment, which would not be available where there is a risk of inconsistent findings (and in consideration that a motion judge does not have discretion to weigh the risks of duplication and inconsistent verdicts against possible benefits of summary disposition. See: Mason v. Perras Mongenais, 2018 ONCA 987).
Justice Myers noted that there are important differences between an application and an action. An application proceeds on written affidavit evidence together with transcripts from examinations of witnesses out of court. There is no live witness testimony or a trial in an application.
Justice Myers stated that while there is a superficial attractiveness to having the plaintiff’s Charter issues heard together with the Toronto applicants, the desirability to avoid duplication and multiplicity required more thorough consideration.
He considered that the facts on which the plaintiff relies for his Human Rights Code violations would be the same as for his Charter claims. If the plaintiff’s Charter challenge was successful, both his Human Rights Code and Charter challenges would be over. Otherwise, the plaintiff would be left to pursue his Human Rights Code claims in Toronto, unless the matter was transferred back to Ottawa.
Justice Myers considered that there would inevitably be substantial duplication of evidence and a risk of inconsistent findings between the Charter and Human Rights Code cases, if these claims are heard separately. He noted that the outcome of the two matters did not need to be the same. Regardless, His Honour opined that there would be two judges approaching the same or similar issues, and was no telling if they would do so the same way.
His Honour also noted that there is no convenient way under the Rules to convert an action to an application, and that he could not transfer the Charter issues only, and leave the other half of the plaintiff’s action in Ottawa.
While it may be convenient to Her Majesty to force the plaintiff into the Toronto application, Justice Myers reasoned that it was not fair to the plaintiff to tack his case onto the application in Toronto. The plaintiff had a Statement of Claim that had not been struck, and he was entitled to discovery and an efficient resolution of his claims.
Justice Myers also noted that none of the connecting factors outlined in Rule 13.1.02(2)(b) made it desirable in the interests of justice to transfer the action to Toronto. As a result, the motion was dismissed, and Justice Myers invited the parties to deliver submissions on costs.
While Her Majesty put forward some unique arguments regarding the procedural benefits of hearing aspects of an action together with similar issues in a separate application, it is evident that the Court was not prepared to sacrifice a plaintiff’s rights under the Rules that are afforded in an action and not an application. With the current loosening of mandates and changing requirements surrounding proof of vaccination, it will be interesting to see how these Charter challenges develop.