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In Dorceus v Ontario, 2026 ONCA 321, the Ontario Court of Appeal upheld an order to strike a Statement of Claim containing broad allegations about the Ontario government’s handling of the COVID-19 pandemic. The decision reaffirmed that courts are not political institutions and that legally unfounded claims are appropriately weeded out by motion to strike, even if characterized as “novel”.
Background
On August 17, 2021, Ontario’s Chief Medical Officer of Health issued Directive 6 under the Health Protection and Promotion Act. It sought to address public health concerns arising as a result of the COVID-19 pandemic, and required certain healthcare organizations to establish policies requiring either (a) vaccination against COVID-19; (b) proof of a medical reason for non-vaccination along with regular COVID-19 testing; or (c) completion of an education session about the benefits of vaccination along with regular testing. Any decisions relating to dismissal or discipline for non-compliance were left up to the discretion of employers.
The plaintiffs in the case were a group of 473 individuals who worked at various Ontario healthcare organizations when Directive 6 was issued. They made sweeping allegations related to both the Directive and the public handling of the COVID-19 pandemic and claimed against the provincial Crown, four government officials, and their employers. In particular, the claim asserted that the COVID-19 pandemic was fabricated, that vaccines and PCR testing constituted crimes against humanity, that lockdown measures amounted to “martial law” and that government officials committed criminal acts.
The defendants brought a motion to strike the claim for want of jurisdiction, abuse of process, and failure to disclose a reasonable cause of action. The motion judge found for the defendants on each of those grounds.
Court of Appeal Decision
On subsequent appeal, the Court of Appeal found that the motion judge did not make a reversible error of law on any of the issues raised, and it upheld the order to strike.
The decision was based on the proper role of the judicial branch of Canada’s government. That role is to uphold the rule of law by resolving legal disputes. It is a distinctly apolitical function, and requires the impartial interpretation and application of laws enacted by the legislature.
By contrast, the Amended Statement of 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”. The healthcare workers’ claims were not tied to facts concerning their employment circumstances, and largely had no connection whatsoever with Directive 6. The court found this went beyond challenging the constitutionality of specific laws, and instead attempted to transform the courtroom into a “grandstand” for political advocacy. It held this to be a misuse of the judicial process that the abuse of process doctrine exists to prevent.
The healthcare workers argued that the case should be allowed to proceed to allow evidence to develop and novel legal issues to be decided on their merits. However, the Court of Appeal noted that motions to strike are a form of merits resolution: they decide the merits of legal questions through a careful consideration of the material facts pleaded, assuming all facts pleaded are true. Here, the claims based on the Canadian Charter of Rights and Freedoms were legally non-viable for various reasons, and the court explicitly noted that the Charter does not apply simply because healthcare is an important public function in the abstract. Further, the pleadings did not contain sufficient material facts of any other alleged civil wrongdoing for those claims to be legally viable. As such, the motion judge was correct in striking the pleadings for disclosing no reasonable cause of action.
Commentary
The Dorceus decision provides helpful instruction on the interplay of the legislative, executive, and judicial branches of government and the proper role of the court. While the judiciary can challenge the constitutionality of specific governmental acts, resolving the issues in this case would have required the court to conduct a full inquiry into both the pandemic itself and the Ontario government’s handling of it. That goes far beyond the proper apolitical role of the courts and is wildly impractical.
It will be particularly interesting to see how (or if) the discussion relating to the role of the judicial branch of government factors into the forthcoming decision in Cycle Toronto, on appeal from 2025 ONSC 4397. In that case, the Ontario government is appealing a finding that the removal of bike lanes is a violation of Charter rights, arguing that transit infrastructure is a political, not judicial, matter.
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