Background
In August 2021, Ontario’s Chief Medical Officer of Health issued Directive 6 under the Health Protection and Promotion Act, requiring healthcare organizations to implement COVID-19 vaccination policies for their staff. The directive permitted alternatives — documented medical exemptions with regular testing, or an educational session with regular testing — but left disciplinary decisions entirely to individual employers. Directive 6 was revoked in March 2022.
More than 473 current and former healthcare workers, most of them unionized and employed across 54 organizations, brought a single omnibus action against the provincial Crown, four government officials, and 54 healthcare entities. Their Amended Statement of Claim alleged, among other things, that the pandemic was fabricated, that PCR testing was fraudulent, that vaccines constituted crimes against humanity, that lockdown measures amounted to martial law, and that government officials committed criminal acts. The claim also advanced Charter and tort claims seeking damages and declarations arising from the suspensions or terminations that followed employees’ refusal to comply with their employers’ vaccination policies.
Justice Koehnen of the Superior Court struck the claim in its entirety under Rules 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure, finding it both an abuse of process and a pleading disclosing no reasonable cause of action. He granted limited leave to amend for non-unionized workers without hospital privileges to bring focused, fact-specific wrongful dismissal claims against their direct employers. The appellants appealed on grounds of abuse of process, Charter and tort viability, judicial notice, jurisdiction, procedural fairness, and costs.
The Court’s Holding
Chief Justice Tulloch, writing for a unanimous panel, dismissed the appeal in full. On abuse of process, the court affirmed that courts are not political institutions and do not serve as proxies for public inquiries into government policy. The claim — which sought judicial determinations that the pandemic was fabricated and that vaccines constituted crimes against humanity — was not directed at resolving the appellants’ individual employment disputes but at mounting a political challenge to Ontario’s entire pandemic response. Because those broad allegations lacked any individualized factual foundation and asked the court to second-guess complex scientific and policy judgments entrusted to the political branches, the proceeding was properly struck as abusive.
On the merits, the court upheld the striking of all Charter claims. The Charter did not apply to the 47 private healthcare respondents because their decisions to suspend or terminate employees were internal management acts with no direct, precisely-defined connection to Directive 6, which itself imposed no obligation to dismiss anyone. Even as against government respondents, the s. 7 claim failed because Directive 6 did not compel medical treatment — the appellants’ complaint was about employment consequences, and s. 7 does not protect the right to pursue a particular occupation. The s. 15 claim failed because vaccination status is neither an enumerated nor an analogous ground of discrimination, as it is not immutable. The remaining Charter claims under ss. 2, 6, and 9 lacked any pleaded material facts. The tort claims — conspiracy, misfeasance in public office, intimidation, and intentional infliction of mental anguish — were also struck for want of particularized allegations of intent or malice.
The court further upheld the jurisdictional rulings: unionized appellants must pursue their claims through labour arbitration, which has exclusive jurisdiction over disputes whose essential character arises from a collective agreement, regardless of how they are legally labelled; and the eight privileged hospital staff appellants must exhaust the statutory process under the Public Hospitals Act — including appeal to the Health Professionals Appeal and Review Board and judicial review — before commencing a court action. Limited leave to amend remained available to non-unionized employees without hospital privileges to bring individualized, properly pleaded claims against their direct employers.
Key Takeaways
- Courts are not political forums: a pleading that seeks a sweeping judicial inquiry into the wisdom or scientific basis of government pandemic policy, rather than the resolution of specific legal disputes, constitutes an abuse of process regardless of the sincerity of the litigants’ grievances.
- The Charter does not apply to private healthcare employers’ employment decisions, even where those decisions are influenced by a government directive, unless the employer is governmental in nature or the specific act in question implements a governmental program or exercises statutory compulsion — and employer-driven suspension or termination satisfies neither branch.
- Vaccination status is not a protected ground under s. 15 of the Charter: it is not enumerated, and because the choice to vaccinate is not immutable, it does not qualify as an analogous ground.
- Unionized workers cannot escape the exclusive jurisdiction of labour arbitration over disputes whose essential character arises from the collective agreement merely by framing claims as Charter breaches or intentional torts.
- Early disposition of legally untenable claims through motions to strike promotes access to justice and judicial efficiency; courts should not defer that analysis to allow defective pleadings to consume years of litigation resources.
Why It Matters
This decision provides authoritative appellate guidance on the limits of mass civil litigation as a vehicle for challenging public health policy. By firmly distinguishing between justiciable employment disputes and non-justiciable political or scientific controversies, the court reinforces the separation of powers principle and the institutional boundaries of judicial review. Employers, labour counsel, and public health lawyers can rely on the ruling’s confirmation that COVID-19 vaccination directives did not transform private employment decisions into government action for Charter purposes, and that the applicable forums — arbitration for unionized workers, statutory panels for credentialed hospital staff — must be exhausted before courts will entertain such claims.
The decision also has broader implications for how courts should handle omnibus claims that aggregate the grievances of hundreds of plaintiffs against dozens of defendants under a common political narrative. The court’s insistence on individualized material facts as a precondition for justiciability sends a clear signal that constitutional and tort claims cannot survive a motion to strike simply because they invoke important rights; they must be anchored in concrete, particularized allegations connecting each defendant’s conduct to each plaintiff’s harm.