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Abuse of Process - Justiciability. 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".
The court holds that breaching the non-justiciability barrier against litigating political matters can constitute an 'abuse of process':[25] The motion judge was, therefore, correct to approach the appellants’ claim through the lens of the abuse of process doctrine. That doctrine protects the integrity of the judicial process against the improper use of the courts: Appleyard v. Zealand, 2022 ONCA 570, 162 O.R. (3d) 494, at para. 59, quoting Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (C.A.), at p. 237, per Blair J.A. (dissenting, but not on this point), leave to appeal refused, [1979] 2 S.C.R. vii. Because the courts are not a political forum, proceedings brought primarily to advance a political agenda rather than to resolve a legal dispute may be abusive. Such proceedings risk undermining public confidence by blurring the lines between the judicial function and the roles of the political branches: see, e.g., Everywoman’s Health Centre Society, at paras. 19-20; Davidson v. British Columbia (Attorney General), 2005 BCSC 1765, at paras. 8-12, aff’d 2006 BCCA 447, 214 C.C.C. (3d) 373.
b. Application: The Proceeding Was Abusive
[26] The motion judge concluded that the claim attempted to use the court as a forum to conduct a sweeping inquiry into the scientific validity and policy wisdom of Ontario’s pandemic response. I would uphold this conclusion.
[27] The motion judge explained:I have the distinct impression from reading the Amended Claim as a whole that its object is not to vindicate the employment rights of the plaintiffs so much as it is to mount a political crusade in which the court will be used as a grandstand to conduct an inquiry into the effectiveness of vaccines and the effectiveness of government measures in response to the Covid-19 pandemic. [28] The motion judge further observed that debates about the effectiveness of public health measures untethered from the interpretation and application of specific laws to the facts of concrete cases are better conducted by scientists, policymakers, and public health authorities than by courts.
[29] I agree with that assessment.
[30] The Amended Statement of Claim seeks to have the court determine that the pandemic was fabricated, that PCR testing was fraudulent, and that vaccines constitute crimes against humanity. These allegations are not tied to individualized facts concerning the appellants’ employment circumstances. They do not answer the specific factual questions necessary for adjudication – “who did what, where, when, how, and with what motive or intent”: Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1099, quoting Kenneth Culp Davis, Administrative Law Treatise, vol. 2 (St. Paul, Minn.: West Publishing Co., 1958), at para. 15.03, p. 353.
[31] Instead, the claim attempts to challenge the entirety of Ontario’s pandemic response. Many of these measures have no connection whatsoever with Directive 6 or the appellants’ loss of employment with the healthcare respondents.
[32] This sweeping challenge is fatally flawed because it lacks a factual foundation: Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at para. 22. The courts are institutionally unsuited to conduct such an inquiry. Public health policy requires the weighing of complex scientific evidence, economic considerations, and healthcare system capacity. Those are matters entrusted to the political branches of government.
[33] The occasional necessity of reviewing those branches’ public health decisions for constitutional compliance increases, rather then lessens, the need for focused claims supported by a proper factual foundation. To preserve judicial integrity, constitutional issues must be litigated in a disciplined manner rather than decided in an abstract factual vacuum: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 59; Danson, at pp. 1099-1101.
[34] The claim, therefore, goes beyond the proper purpose, recognized in Thorson v. Attorney General of Canada, 1974 CanLII 6 (SCC), [1975] 1 S.C.R. 138, at p. 151, of challenging the constitutionality of specific laws and governmental acts. Instead, it attempts to transform the courtroom into what the motion judge aptly described as a “grandstand” for political advocacy.
[35] As I have explained, the abuse of process doctrine exists precisely to prevent this type of misuse of the judicial process. Thus, the motion judge committed no error in concluding that the action was an abuse of process which should be remedied by striking the claims with leave to amend in accordance with his reasons.
[36] In affirming the motion judge’s conclusion, I do not in any way wish to impugn the motives of the appellants or their counsel. I accept counsel’s submission that the issues raised in this proceeding are significant to his clients and that he always strives to respect the courts. However, motive is not the test. “Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 51. As currently framed, this proceeding would violate that process’s integrity by politicizing it.
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