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Ontario’s Court of Appeal Reaffirms the Limits of Justiciability in Dorceus v. Ontario
Date: May 21, 2026
In Dorceus v. Ontario, the Court of Appeal for Ontario (ONCA) upheld an order to strike an Amended Statement of Claim effectively seeking a public inquiry into the “scientific validity and policy wisdom” of the Ontario government’s response to the COVID-19 pandemic. The ONCA’s decision reaffirms the proper role of courts in the administration of justice and the limits of civil litigation.
Background
On August 17, 2021, Ontario’s Chief Medical Officer of Health issued a directive under the Health Protection and Promotion Act that required certain healthcare organizations to establish and enforce a vaccination policy. The directive did not mandate discipline or dismissal for non-compliance; such decisions remained within the discretion of the healthcare organizations.
The Amended Statement of Claim was filed on behalf of 473 individuals employed by or working at 54 healthcare organizations across Ontario. 387 of those individuals were unionized employees. Eight were privileged hospital staff.
The Amended Statement of Claim alleged that the directive led to the suspension or termination of the employment of the 473 plaintiffs because they declined vaccination. It also alleged that “the COVID-19 pandemic was fabricated, that vaccines and PCR testing constituted crimes against humanity, that vaccine passports violated the Charter, that lockdown measures amounted to “martial law,” and that government officials committed criminal acts.”
The defendants, which included the 54 employer organizations as well as the provincial Crown and four government officials – brought a motion to strike out the Amended Statement of Claim for want of jurisdiction, abuse of process and failing to disclose a reasonable cause of action.
Decision of the Motion Judge
The motion judge ruled that the court has no jurisdiction over the claims of the 387 unionized employees or the 8 plaintiffs holding hospital privileges, and that those plaintiffs should pursue their claims in other forums. The unionized plaintiffs are subject to the exclusive jurisdiction of labour arbitrators and the claims of the privileged hospital staff should be brought before the governing bodies of their hospitals and the Health Professionals Appeal and Review Board (HPARB).
Next, the motion judge struck the claims against all defendants as an abuse of process and for disclosing no reasonable cause of action. The motion judge concluded that the Amended Statement of Claim contains scandalous and speculative allegations that risked politicizing the judicial process, and does not plead material facts to support its various causes of action.
The motion judge granted limited leave to the non-unionized plaintiffs to amend their claim and awarded costs to the defendants.
The ONCA Decision
At the outset of its decision, the ONCA emphasized that Canada’s constitutional structure relies on a clear division of authority and that when any branch of government “oversteps its bounds, public trust in all is endangered.”
The judicial branch is responsible for upholding the rule of law, which courts discharge by independently and impartially interpreting and applying the laws enacted by the legislature and administered by the executive. As such, proceedings brought primarily to advance a political agenda, rather than to resolve a legal dispute, risk undermining public confidence by blurring the lines between the judicial function and the roles of the political branches.
Abuse of Process
The ONCA confirmed that the Amended Statement of Claim was an abuse of process. The court ruled that the plaintiffs’ claims that the pandemic was fabricated, that PCR testing was fraudulent, and that vaccines constitute crimes against humanity are not tied to individualized facts about the plaintiffs’ employment and do not answer the factual questions necessary for adjudication (i.e., who did what, where, when, how, and with what motive or intent).
Further, the ONCA determined that the claims advanced in the Amended Statement of Claim effectively seek to transform the court into a platform for a sweeping political and scientific debate about the pandemic rather than a forum for adjudicating legal rights, which is precisely the misuse of the judicial process that the abuse of process doctrine and the motion-to-strike procedure are designed to prevent.
No Reasonable Cause of Action
The ONCA confirmed that the claims contained in the Amended Statement of Claim are not legally viable and, therefore, the motion judge had correctly struck these claims for disclosing no reasonable cause of action.
The ONCA also emphasized that the administration of justice is strengthened when legally untenable claims are disposed of at an early stage as doing so enhances timely access to justice, promotes certainty in the law, and ensures efficiency by allowing courts to focus on disputes that have a realistic prospect of success.
Judicial Notice
The ONCA held that the motion judge did not err by taking judicial notice of the existence of the COVID-19 pandemic and the fact that governments enacted public health measures. This court has already recognized those facts as well-known and uncontroversial.
Lack of Jurisdiction
The ONCA also affirmed the jurisdictional determination of the motion judge with respect to the unionized plaintiffs and the plaintiffs with hospital privileges.
Under the Labour Relations Act, 1995, a dispute between the parties to a collective agreement must be arbitrated if that agreement covers the dispute’s essential character. The ONCA concluded that the essential character of the instant dispute was both fundamentally related to the employment of the unionized plaintiffs and covered by the collective agreements in question. Therefore, the unionized plaintiffs must arbitrate their claims because labour arbitrators have exclusive jurisdiction over the subject matter.
Moreover, the ONCA clarified that the plaintiffs cannot evade the dispute’s essential character through legal labels such as Charter breaches or intentional torts, especially since labour arbitrators have the authority to grant declarations that Charter rights have been breached.
With respect to the eight privileged hospital staff plaintiffs, the ONCA confirmed that those plaintiffs are subject to the dispute resolution regime established under the Public Hospitals Act. The Act vests decision-making authority in each hospital’s Medical Advisory Committee and decisions of that committee may be appealed to the HPARB. Decisions of the HPARB are in turn judicially reviewable in the Divisional Court. The Court agreed with the motion judge that because the essential character of the dispute in this case concerned the determination of hospital privileges, this statutory process must be exhausted before seeking relief in court.
Procedural Fairness and Costs
Finally, the ONCA rejected the plaintiffs’ procedural fairness and costs arguments. It determined that the plaintiffs were fully heard, the motion judge issued comprehensive reasons addressing all issues raised, and the costs subsequently awarded were modest given the scope of the proceeding and the number of plaintiffs involved.
The ONCA dismissed the appeal and awarded the respondents their costs.
Key Takeaways
Dorceus v. Ontario stands as a clear reminder of the limits of justiciability and reaffirms that the motion-to-strike procedure remains a robust mechanism for weeding out claims that are not viable at law at any early stage in the litigation process.
The function of the court is to resolve legal disputes grounded by sufficient facts. Plaintiffs cannot rely on the sheer size of a group or the high-profile nature of a matter to substitute for the individualized fact-pleading required to anchor their claims.
Moreover, attempting to use courts as political forums, scientific tribunals, or commissions of inquiry into public policy goes beyond the proper role of the judicial branch and is an abuse of the judicial process.
This case was argued by Hicks Morley Partners Frank Cesario and Shivani Chopra.
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