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COVID - Vaccinations (5). Dorceus v. Ontario
In Dorceus v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against findings of a motion judge that "concluded that the claim constituted both an abuse of process and a pleading that disclosed no reasonable cause of action", and consequently struck the pleadings. The claim was by "a group of more than 400 current and former healthcare workers" who "allege that a provincial public health directive led to the suspension or termination of their employment because they declined vaccination".
Here the court briefly states the Ontario vaccination reaction to the COVID virus:1. Public Health Context
[6] On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. On March 17, 2020, Ontario declared an emergency pursuant to s 7.0.1 of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (“EMCPA”). Various public health measures followed.
[7] On August 17, 2021, the Chief Medical Officer of Health issued Directive 6 under s. 77.7 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7.[3] This directive required certain healthcare organizations to establish and ensure employee and staff compliance with a vaccination policy. Pursuant to the directive, that policy must require either vaccination, written proof of a medical reason for non-vaccination along with regular COVID-19 testing, or, if an organization so chose, completion of an educational session about the benefits of vaccination together with regular testing. The directive did not mandate dismissal or discipline; those decisions remained within the discretion of individual employers.
[8] Directive 6 was revoked on March 14, 2022. . Dore v. College of Nurses of Ontario
In Dore v. College of Nurses of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, here brought against decisions of the Discipline Committee of the College of Nurses of Ontario where it "found the appellant (a nurse practitioner) had committed professional misconduct" and "was unprofessional, dishonourable and disgraceful, including in that she demonstrated “a serious and persistent disregard for her professional obligations” by issuing COVID vaccination exemptions in the circumstances.
. Hartman v. Canada (Attorney General)
In Hartman v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought where "the motion judge struck the Claim [SS: under R21.01(1)(b)] in its entirety on the basis that it was plain and obvious that the Claim had no reasonable prospect of success, even if supplemented with amendments proposed by the appellant".
Here the court reviews the history of, and the Canadian response to, the COVID crisis in respect of vaccinations:A. The COVID-19 pandemic and Canada’s initial response
[5] The health and societal impacts of the COVID-19 pandemic are well known and not in dispute in this proceeding. Moreover, this court has previously taken judicial notice of basic facts relating to the pandemic: see e.g. R. v. Morgan, 2020 ONCA 279, at para. 8.
[6] COVID-19 is a disease caused by a coronavirus known as SARS-CoV-2. It was first detected in China in December 2019 and subsequently spread across the globe, leading to the World Health Organization declaring it a pandemic in March 2020. In the ensuing year, COVID-19 was reported to have infected more than 118 million people worldwide and to have been associated with 2.6 million deaths. In that same period, there were approximately 900,000 infections and over 22,000 deaths resulting from COVID-19 in Canada. See Spencer v. Canada (Health), 2021 FC 621, [2021] 3 F.C.R. 581, at paras. 19-27; Lavergne-Poitras v. Canada (Attorney General), 2021 FC 1232, at paras. 17-22.
[7] In the first few months of the pandemic, the response of governments in Canada and elsewhere was focused on public health measures designed to reduce the risk of COVID-19 transmission in the community, such as physical separation or social distancing, the testing of exposed or symptomatic individuals, and school and business closures. At the same time, an overriding priority was the development of safe and effective vaccines to more effectively address the significant threat to public health posed by COVID-19.
[8] New vaccines in Canada are ordinarily reviewed and approved by the Minister of Health (the “Minister”), based on a detailed submission from the manufacturer sufficient to enable the Minister to assess its safety and effectiveness: see Food and Drug Regulations, C.R.C., c. 870, C.08.001 (the “New Drugs Regulation”). Section 30.1 of the Food and Drugs Act, R.S.C. 1985, c. F-27 (FDA) authorizes the Minister to make interim orders where the Minister believes that “immediate action is required to deal with a significant risk, direct or indirect, to health, safety or the environment”.
[9] Pursuant to that authority, on September 16, 2020, the Minister issued an interim order creating a new regulatory pathway for the approval of COVID-19 drugs: see Interim Order Respecting the Importation, Sale and Advertising of Drugs for Use in Relation to COVID-19, (2020) C. Gaz. I, 2542-56 (Food and Drugs Act) (the “Interim Order”). The Interim Order stated that the Minister believed that immediate action was required to deal with a significant risk to health, safety, or the environment posed by COVID-19. The Interim Order amended the administrative process for filing applications for drug authorizations designed to combat COVID-19 and afforded new flexibility in the Minister’s assessment of the evidence supporting the quality, safety, and effectiveness of these drugs. However, the type of evidence required to establish a vaccine’s quality, safety, and effectiveness was substantially similar.[3]
[10] Section 5 of the Interim Order required the Minister to approve a COVID-19 drug if the following conditions were met:a. the applicant has submitted an application to the Minister that meets the requirements set out in subsection 3(1) or 4(2);
b. the applicant has provided the Minister with all information or material, including samples, requested under subsection 13(1) in the time, form and manner specified under subsection 13(2); and
c. the Minister has sufficient evidence to support the conclusion that the benefits associated with the drug outweigh the risks, having regard to the uncertainties relating to the benefits and risks and the necessity of addressing the urgent public health need related to COVID-19. B. Authorization of the Vaccine
[11] Following the issuance of the Interim Order, on October 9, 2020, Pfizer-BioNTech submitted an application to Health Canada for authorization of its COVID-19 vaccine. In its evaluation, Health Canada considered the results of an ongoing ‘Phase 3’ clinical trial which was a randomized, placebo-controlled study (the “Clinical Trial”). The appellant referenced particulars of the preliminary Clinical Trial data in his statement of claim, which he called “Study 1”.[4] Topline results of the Clinical Trial to this point in time were also detailed in a “Regulatory Decision Summary” published on December 9, 2020 by Health Canada, which the appellant explicitly referred to in his statement of claim.[5]
[12] The Clinical Trial enrolled approximately 44,000 participants in multiple countries, half of whom received the Vaccine and the other half a placebo. The Decision Summary notes that at the time of approval in December 2020, efficacy of the Vaccine was evaluated to be 95%. The “efficacy” of a vaccine is a measure of how much the vaccine reduced the risk of contracting the disease in a controlled study.[6] In this case, a 95% efficacy rating means that the vaccinated group had a 95% lower risk of developing COVID-19 than the unvaccinated placebo group. The evidence also demonstrated that the vaccine was well-tolerated across demographic subgroups. The most common side effects were injection site pain, fatigue, headache, muscle pain, chills, joint pain, and fever. No life-threatening adverse effects or deaths were reported.
[13] The Study 1 data may be summarized as follows [SS: it's best to view this chart in the original link]:Datapoint
Vaccine Group
Placebo Group
COVID-19 cases
8
162
Severe COVID-19 cases
1
9
Any adverse event
5,770 (26.7%)
2,638 (12.2%)
Related adverse event
4,484 (20.7%)
1,095 (5.1%)
Any serious adverse event
126 (0.6%)
111 (0.5%)
Related serious adverse event
4 (0.0%)
0 (0.0%)
This data demonstrates a vaccine efficacy against COVID-19 infection of 95.0%. [14] Based on the Clinical Trial results available at the time, and having regard to the necessity of addressing the urgent public-health concerns related to COVID-19, the Minister concluded that the benefits associated with the Vaccine outweighed the risks and authorized its use by individuals 16 years of age and older in accordance with s. 5 of the Interim Order. The Decision Summary noted that one limitation of the data at that time was the lack of information on the long-term safety and efficacy of the Vaccine. However, the Clinical Trial was ongoing and Health Canada would continue to collect data to monitor and assess these considerations. The Vaccine began to be administered to the Canadian population on December 14, 2020.
C. Subsequent Clinical Trial results
[15] On April 1, 2021, Pfizer-BioNTech released updated results of the Clinical Trial capturing six-month data following study participants receiving the second dose of the Vaccine. The appellant referenced particulars of the six-month Clinical Trial data in his statement of claim, which he called “Study 2”.[7] The updated study data was also detailed in a press release by the manufacturer, which the appellant expressly referred to in his statement of claim.[8] As of April 2021, the Vaccine’s overall efficacy remained greater than 90%, and the Vaccine reduced the incidence of severe COVID-19 by up to 95%. Moreover, the Clinical Trial did not find evidence of any significant safety concerns arising from the administration of the Vaccine, with side effects remaining consistent with Study 1. Deaths of study participants were roughly equivalent between the vaccinated group and the placebo group, and no deaths were considered to be related to the Vaccine.
[16] The Study 2 data may be summarized as follows [SS: it's best to view this chart in the original link]:Datapoint
Vaccine Group
Placebo Group
COVID-19 cases
77
850
Severe COVID-19 cases
1
30
Any adverse event
6,617 (30.2%)
3,048 (13.9%)
Related adverse event
5,241 (23.9%)
1,311 (6.0%)
Any serious adverse event
127 (0.6%)
116 (0.5%)
Related serious adverse event
3 (0.0%)
0 (0.0%)
Deaths
15
14
This data demonstrates a vaccine efficacy against COVID-19 infection of 91.3% and against severe cases of COVID-19 of 95.3%. [17] The appellant pleaded that Pfizer-BioNTech was required to provide this updated data from the Clinical Study to Health Canada as part of the ongoing, post-authorization monitoring process, meaning that the respondents were either aware of it, or ought to have been aware of it prior to Sean Hartman receiving the Vaccine. As will become evident below, data from these two datasets provides the factual foundation for both of the appellant’s causes of action. . Komer v. Health Professions Appeal and Review Board
In Komer v. Health Professions Appeal and Review Board (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against the dismissal of a complaint made against the registrar of the CPSO "and the findings of the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) and of the Health Professions Appeal and Review Board (the “Board”) respecting that complaint".
A central issue in the case was whether the complaint, which in part opposed accepted COVID treatment policy "respecting the safety and efficacy of COVID-19 vaccines, and measures taken to minimize the spread of misinformation respecting vaccines", was "frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process":[3] Shortly after receiving the applicant’s complaint, exercising the discretion afforded to it by s. 26(4) of the Health Professions Procedural Code (the “Code”), Schedule 2, Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), the ICRC formed the preliminary opinion that the complaint against Dr. Whitmore was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process and that the ICRC would therefore take no action respecting the complaint. As required by the Code, before making a final decision on the matter, the ICRC invited the applicant to make written submissions. The applicant supplied such submissions and, after considering them, the ICRC then made a final decision, pursuant to s. 26(5) of the Code, that it would take no action on the complaint against Dr. Whitmore. The ICRC stated its conclusions as follows:. The Committee considered the following points in reaching its decision:. These concerns do not relate to care to a particular patient and there is no evidence of a physician-patient relationship between the Complainant and the Respondent. Rather, the Complainant is concerned about the Respondent’s decisions or actions in her role as Registrar for the College.
. The Committee is not the appropriate body to review the Respondent’s decisions while carrying out her duties as an officer of the College. [4] The applicant then wrote to the Board requesting a review of the ICRC’s decision. The Board advised the parties of its intention not to review the ICRC decision, given that it had formed an initial opinion that the request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process (see s. 30(2) of the Code). The Board invited submissions from the applicant on the issue, which he supplied. After receiving those submissions, the Board declined to review the ICRC’s decision (Code, s. 30(3)). In its Final Order, the Board found that the request for a review bore the characteristics of a vexatious proceeding, and then expressed its conclusions as follows:The Board finds that there is no physician/patient relationship between the parties. The Applicant’s concerns are not related to the practice of medicine but, rather, pertain to the actions and decisions of the Respondent in her role as Registrar of the College. This is an issue that neither the Committee nor the Board can address. The Applicant has provided no new information indicating that the public interest would be served by proceeding with a review.
Given the Board’s jurisdiction and complaint process, the Board finds that the Applicant’s request for review has no reasonable chance of success and it would serve no practical purpose to conduct a review of this matter. ....
[9] The Code affords both the ICRC and the Board a broad discretion to decline to investigate or review complaints which are frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. This list of descriptors is disjunctive. In other words, if a complaint fits into any one of the listed categories, the ICRC or the Board may properly decline to investigate or review it. The goal is to weed out unmeritorious complaints which have no chance of success: Catford v. Health Professions Appeal and Review Board, 2017 ONSC 7411 (Div. Ct.), at paras. 22 – 28.
[10] Here, it was open to the ICRC and the Board to conclude respectively that the complaint and the request for review exhibited many of the badges of a vexatious proceeding, some of which were helpfully catalogued by Henry J. in Re Lang Michener and Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353 (S.C.J.), which judgment the Board quoted in its Final Order: see also Amikwabi v. Pope Francis, 2021 ONSC 1069, at para. 39, aff’d 2022 ONCA 236. It was evident that the complaint and the requested review had no chance of success and that it was brought for a purpose other than the legitimate assertion of the applicant’s rights.
[11] It was, instead, an assertion by the applicant that the College, including its registrar and governing council, had pursued misguided policies in connection with the COVID-19 emergency and had thereby committed professional misconduct. The applicant’s original complaint was a closely written polemic against the use of vaccines, and against the College’s policies which encourage the use of vaccines. His response to the ICRC’s invitation to provide further submissions was similar in nature, as was his response to the Board’s invitation to provide further submissions. All three documents made extensive reference to links to internet sites, many of which appear to offer information respecting the alleged dangers and/or inefficacies of vaccines: compare Amikwabi, at para. 39.
[12] It was reasonable for the ICRC and the Board to conclude that a complaint of professional misconduct was not the appropriate forum for the ventilation of the applicant’s concerns respecting vaccines. First, the allegations against Dr. Whitford and the governing council are not obviously caught by any of the definitions of professional misconduct under the Medicine Act, 1991, S.O. 1991, c. 30 (see: “Professional Misconduct”, O. Reg. 856/93 (the “Definition of Professional Misconduct”)), even accepting that professional misconduct may be committed by acts unrelated to the practice of medicine or to a doctor/patient relationship, but which are “unbecoming a physician.”
[13] Second, the legislation which governs the College provides for immunity from civil liability for College employees and council members for acts taken in good faith in the performance of duties carried out in those capacities: RHPA, s. 38. As the respondents argue, this is “a strong signal that the legislature intended the actions and decisions of College officials to be insulated from complaints by private individuals.” This is especially so given that the there are other avenues for the pursuit of the applicant’s policy concerns respecting vaccines, including voting or otherwise participating in elections for membership on the College’s council, or by seeking judicial review of College policy.
[14] Neither the ICRC nor the Board concluded, as the applicant alleges, that they had no jurisdiction over the registrar of the College, or that complaints of professional misconduct against physicians must relate to a doctor/patient relationship. They simply observed that the complaint in this case did not refer to such a relationship, as most complaints do. The making of this observation was sensible given that the scope of the College’s authority to investigate and discipline outside of the doctor/patient sphere is limited: College of Physicians and Surgeons of Ontario v. Jha, 2022 ONSC 769, para. 119. In this respect, a complaint alleging professional misconduct in the development and implementation of College policy is atypical, to say the least. These were relevant factors in the decisions made by both the ICRC and the Board.
[15] Moreover, to the extent that the applicant’s complaint against Dr. Whitmore might be said to relate to claims “respecting the utility of a remedy, treatment, device or procedure,” such claims are expressly excluded from the definition of professional misconduct where they “can be supported as reasonable profession opinion”: Definition of Professional Misconduct, s. 1(1), paragraph 14. That vaccines were a safe and efficacious response to the COVID-19 emergency has been found to be a fact susceptible to judicial notice: J.N. v. C.G., 2023 ONCA 77, at paras. 20 – 30. It was, therefore, reasonable for Dr. Whitmore to hold that professional opinion, even if some physicians, including the applicant, hold a different opinion. The applicant’s complaint against her was, for this reason also, doomed to fail.
[16] In light of all these observations, it was reasonable for the Board to conclude that there was no public interest in allowing the review to proceed: the complaint was not meritorious; no real issue of professional misconduct was raised by it; its focus was, instead, institutional and policy-based in nature; and the concerns expressed in it were better dealt with in other fora. It was, as the College submits, a collateral attack on College policy with which the applicant disagrees. The College’s decision to decline to investigate was reasonable, as was the Board’s decision to decline to review that decision.
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