Recently we covered a noteworthy appeal ruling on a contentious COVID-19 case, A Year Later: Kids’ COVID-19 Vaccine Ruling Overturned – Judge Wrong Not to Scrutinize Internet Anti-Vaxx Sources.
The origins of the case featured the divorced parents of two children, aged 10 and 12. Since they could not agree on which of them would have decision-making authority over whether to vaccinate the kids against COVID-19, they asked the court to decide.
The first judge, Justice Pazaratz, gave the mother the final say. He accepted her evidence – based largely on anti-vaccine sources from the internet – that sufficient doubt had been cast on the vaccine’s safety and efficacy. He rejected the father’s evidence on this point, including Health Canada advice to the effect that immunization is safe for children over 5.
On later appeal, the Ontario Court of Appeal roundly criticized Justice Pazaratz’s approach and conclusions, and overturned his ruling entirely.
For one thing, Justice Pazaratz had gone off on a misguided tangent, likening historical decisions by the government to the current-day advice on COVID-19 vaccines. He blatantly concluded that since the government had violated people’s Charter rights in the past, it was not to be trusted on COVID-19 decisions now. The Appeal Court summarized Justice Pazaratz’s rant on this point:
The motion judge refused to take judicial notice of the safety and efficacy of the vaccine because, in his view, the available information about it was a “moving target” and because there was “no consensus or consistency” as to its safety and effectiveness. The motion judge reasoned that because of Canada’s history of forced sterilization of Inuit women, residential schools, Japanese internment camps during World War II, Motherisk, and the Thalidomide tragedy, courts should be reluctant to “take judicial notice that the government is always right”. He was especially critical of the [father’s] characterization of the [mother’s] evidence, disagreeing that her sources had been “debunked”. Then, the motion judge took the opportunity to weigh in on the discord over COVID-19, vaccinations to protect against it, and the resultant fissures in our society, by writing that “it would be helpful if, once and for all, the competing positions and science could be properly explored and tested in a public trial”.
It was also wrong for Justice Pazaratz to specifically ignore the father’s Health Canada evidence, the Appeal Court found. For one thing, prior Ontario courts had routinely taken judicial notice that getting vaccinated against COVID-19 is in the best interests of a child, unless there is a compelling reason not to. Yet Justice Pazaratz concluded that its safety was still up for debate and stated “there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots”.
To this, the Court of Appeal said:
[29] I would also note that there is no question that: 1) there is a COVID-19 pandemic; 2) this disease kills people, including children; and 3) the vaccines available to Canadians, including children ages 5 and older, have received regulatory approval. The problem, apart from the question of judicial notice, is that it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination. …
[31] The motion judge erred in failing to conduct any meaningful review of the [father’s] authorities, or the laws of evidence, in favour of the [mother’s] questionable and unreliable internet printouts with no independent indicia of reliability or expertise. This was a palpable and overriding error.
Justice Pazaratz had also effectively placed the burden on the father to prove the children should be vaccinated. And yet, it was really the opposite burden that should have fallen on the mother, as the Appeal Court explained:
[45] Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. That being the case, where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.
[46] The respondent [mother], as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied.
In the end, the Appeal Court ruled that rather than remit the matter back to the lower court for another hearing (which was one of its options), it should set aside the earlier order and simply grant the father sole decision-making authority with respect to the children’s vaccination against COVID-19.
Full text of the decision:
J.N. v. C.G., 2023 ONCA 77 (CanLII), <https://canlii.ca/t/jv9c5>
Lower court trial and costs decision:
J.N. v. C.G., 2022 ONSC 1198 (CanLII), <https://canlii.ca/t/jmk30>
J.N. v. C.G., 2022 ONSC 2225 (CanLII), <https://canlii.ca/t/jnmlj>
