Ontario Court of Appeal rejects charter challenge against outdoor gathering restrictions

In upholding the dismissal of a challenge to outdoor gathering restrictions during the pandemic, the Ontario Court of Appeal has ruled that the issue of whether a person had private interest standing was moot and a decision on that question would not resolve any controversy affecting that party’s rights in the future.

In Baber v. Ontario (Attorney General), 2022 ONCA 345, the appellants filed an application challenging regulations under Ontario’s Emergency Management and Civil Protection Act and the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, which imposed public health restrictions against outdoor gatherings.

They alleged that the restrictions breached their rights under ss. 2 and 15 of the Canadian Charter of Rights and Freedoms and failed to constitute reasonable and demonstrably justified limits on their rights.

The judge found that the appellants did not meet the requirements for public interest standing and dismissed their application. The appellants sought to set aside the application judge’s decision.

The individual appellant, Roman Baber, argued that the appeal was not moot because a court decision on his private interest standing to bring the application could potentially impact his right to challenge hypothetical future pandemic restrictions.

Alternatively, Baber contended that the appellate court should exercise its discretion to hear and determine the issue of his private interest standing based on the three factors in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

The Ontario Court of Appeal dismissed the appeal. The question of Baber’s private interest standing was moot in line with Borowski, since the underlying application was moot. A decision on that issue would not resolve any controversy affecting Baber’s rights for the two following reasons:

• The application judge’s decision would not bind a hypothetical future application based on legislation and/or regulations implemented at that time
• The application judge made no determination regarding private interest standing that could potentially bind a judge who would address that question in a hypothetical future challenge if pandemic restrictions were imposed in the future.

Next, the appellate court found it inappropriate to exercise its discretion to hear the appeal relating to Baber’s private interest standing in accordance with the Borowski factors. Regarding the first factor, the respondent conceded that it was met because the parties continued to have an adversarial relationship.

Borowski’s third factor did not raise an issue given that the question of whether Baber had standing would not cause the appellate court to intrude into the legislative branch’s role, the court said.

The appellate court decided not to exercise its discretion to hear the appeal based on Borowski’s second set of factors. The appellate court said that it would not waste scarce judicial resources to determine the matter when Baber’s private interest standing relating to this application would not govern his standing to file a hypothetical future application.

The need for judicial economy would also support this determination, the appellate court concluded.