On April 9, 2020, the Divisional Court virtually heard an application for judicial review challenging the validity of a no-visitor policy enacted by North York General Hospital in response to the COVID-19 pandemic in Sprague v Her Majesty the Queen in Right of Ontario.
The applicant, in his capacity as a substitute decision maker for his father, who was a patient at North York General Hospital, commenced an application for judicial review of the Hospital’s “no visitor” policy instituted March 20, 2020 in response to the COVID-19 crisis (the “Policy”). The Policy afforded the Hospital discretion to grant exceptions in certain categories (none of which the applicant or his father fell into). The applicant challenged the Policy alleging that this limitation on his ability to visit his father in-person violated his father’s rights under ss. 7, 12, and 15 of the Charter, and sought a declaration that the Policy be of no force or effect, or alternatively an order that the Hospital grant him full and unfettered access to visit his father in-person.
In addition to challenging the Policy, the applicant also challenged the March 19, 2020, Memorandum prepared by the Chief Medical Officer for Health for Ontario (the “CMOH Memorandum”), which was distributed to Ontario’s hospitals recommending that the hospitals only allow essential visitors and contained guidelines on what “essential” visitors contains. The applicant argued that the CMOH Memorandum violated his father’s rights under s. 15 of the Charter.
The Policy and CMOH Memorandum are Not Subject to Judicial Review
The Divisional Court explained that whether a decision of a public authority is subject to judicial review is governed by the Judicial Review Procedures Act (“the JRPA”). In order to be judicially reviewed, a statutory power of decision “must be a specific power or right to make the very decision in issue.”
The court noted that the applicant had not identified a statutory power that was relied upon in the exercise of the Policy to restrict access to its premises. The court reiterated that judicial review is only available where the decision is also “the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied.” The court considered the factors to determine whether a decision has a sufficient public character as set out by the Federal Court of Appeal in Air Canada v Toronto Port Authority and Porter Airlines Inc., and concluded that the Policy did not involve the exercise of a statutory authority nor was it of sufficient “public” character to meet the test for judicial review.
As for the Memorandum, the court noted, “The CMOH Memorandum does not constitute an exercise or purported exercise of a statutory power, nor was such authority necessary. The CMOH Memorandum has no legal force. It does not statutorily compel any person or party to take or refrain from any action. The CMOH Memorandum instead merely provides the CMOH’s recommendation that the hospital limit visitors to “essential visitors” in order to prevent the spread of COVID-19. While it is expected that hospitals will follow the CMOH’s recommendation, they are not statutorily compelled to do so.”
Accordingly, neither the Policy nor the CMOH Memorandum were subject to judicial review.
No Charter Violations
The Divisional Court also considered whether any Charter rights were violated. The applicant argued that the Policy, by identifying some visitors as “essential” and others “non-essential,” made a distinction which placed an undue burden on the elderly and those with mental disabilities. Similarly, the applicant argued that the CMOH Memorandum, by recommending that Ontario’s hospitals impose visitor restrictions, discriminated against his father on the basis of his age and disability contrary to s. 15.
Section 15 of the Charter is engaged when: (1) on its face or in effect, the impugned law or state action creates a distinction based on enumerated or analogous grounds; and (2) the distinction creates a burden upon or denies a benefit to the rights claimant in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. However, as the Supreme Court of Canada held in Eaton v Brant County Board of Education, “not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability.” The Divisional Court found neither aspect of the test was satisfied as the Policy did not create a distinction on the basis of an enumerated ground nor did it reinforce, perpetuate or exacerbate a disadvantage.
The court then noted that the CMOH Memorandum had no legal force and did not statutorily compel any health care provider or health care entities to make or refrain from making any particular decision with respect to visitors. Further, to the extent the CMOH Memorandum’s distinguishing between “essential” versus “non-essential” was held not to be a distinction that fell within the list of enumerated grounds under s. 15(1) or qualify as an analogous ground. The court concluded that the CMOH Memorandum did not confer or deny any benefit in a discriminatory way and dismissed the claim that the CMOH Memorandum violated s. 15 of the Charter. 
The court briefly considered and dismissed the further arguments that the Policy infringed the father’s s. 7 and s. 12 Charter rights. The applicant failed to establish the Policy was not in accordance with principles of fundamental justice as it was not arbitrary, overboard, or a grossly disproportionate response to the pandemic. Finally, the Divisional Court found that s. 12 was not engaged as the Policy was not a sanction imposed by virtue of a conviction or anything akin to a conviction, and neither the applicant nor his father, were subject to active state control of any kind.
In rejecting the applicant’s request for judicial review the court noted:
Finally, I would observe that the applicant’s criticisms of the Visitor Policy, and its alleged inconsistencies and logical flaws, are really an attempt to engage the Court in a re-weighing of the complex and often difficult factors, considerations and choices that must be evaluated by a hospital administration during a pandemic. This is not the Court’s role. The Hospital has enormous expertise and specialized knowledge available to it in exercising its discretion around hospital administration issues during a pandemic, only one of which is visitor policy. Significant deference must be afforded to the Hospital in the circumstances. There is ample evidence to support the conclusion that the Visitor Policy to limit visitors was founded on sound medical, scientific and epidemiological evidence, not on presumed characteristics of persons suffering historical disadvantage.
Overall, the case provides helpful insight into when judicial review may be appropriate and how the court will evaluate accompanying constitutional challenges. Notably, this application proceeded virtually and on an urgent basis before the Divisional Court on April 9, 2020 with reasons released shortly thereafter on April 17, 2020. While the decision does not comment on virtual hearings or their procedure, the case demonstrates that important and timely matters will be heard by the Divisional Court during this time.
 Sprague v Her Majesty the Queen in right of Ontario, 2020 ONSC 2335.
 Ibid at para 3.
 Ibid at para 4
 Ibid at para 21.
 Ibid at para 22.
 Ibid at para 23 citing to Air Canada v Toronto Port Authority and Porter Airlines Inc., 2011 FCA 347 at para 60.
 Ibid at para 24.
 Ibid at para 31.
 Ibid at para 34.
 Ibid at para 35.
 Ibid at paras 35-36, citing Eaton v Brant County Board of Education,  1 SCR 241 at para 66..
 Ibid at para 37.
 Ibid at para 60.
 Ibid at paras 62 - 63.
 Ibid at para 65.
 Ibid at para 48 - 50.
 Ibid at pars 52 – 54.
 Ibid at para 45.