Dorceus v. Ontario, 2026 ONCA 321 is a recent decision from the Ontario Court of Appeal regarding the appropriate role of the courts in civil litigation.
It involved an appeal by a group of more than 400 current and former Ontario healthcare workers who alleged that a provincial health directive during the COVID-19 pandemic led to the suspension or termination of their employment because they declined vaccination.
The motion judge dismissed the claim against 59 defendants – including the provincial Crown, government officials, and dozens of healthcare organizations – on the basis that the claim constituted an abuse of process.
The Court of Appeal upheld that decision, but both levels of court emphasized that the individual claimants were still able to pursue legally viable claims for the suspension or loss of their employment, and that there were multiple avenues to do so. The unionized claimants could pursue labour arbitration remedies, those with hospital privileges could seek relief under a statutory process, and others could bring focused claims disclosing a reasonable cause of action against their employers in court.
Facts
On August 17, 2021 the Chief Medical Officer of Health in Ontario issued Directive 6, which required certain healthcare organizations to establish and ensure employee and staff compliance with a vaccination policy. Pursuant to Directive 6, the policy must require either vaccination, written proof of a medical reason for non-vaccination along with regular COVID-19 testing, or completion of an educational session about the benefits of vaccination together with regular testing. Directive 6 did not mandate dismissal or discipline, those decisions were within the discretion of individual employers.
Directive 6 was revoked on March 14, 2022.
The claimants advanced a number of sweeping allegations, including assertions that:
- The COVID-19 pandemic was fabricated;
- Vaccines and PCR testing constituted crimes against humanity;
- Vaccine passports violated the Canadian Charter of Rights and Freedoms (the “Charter”);
- Lockdown measures amounted to “martial law”; and
- Government officials had committed criminal acts.
The claim also asserted numerous torts and sought various damages and declarations against the Defendants.
Prior to this appeal, the motions judge had ruled that unionized claimants and claimants with hospital privileges had brought their claims in the wrong forum. Unionized claimants were subject to the exclusive jurisdiction of labour arbitrators and the claims of privileged hospital staff should be brought before the governing bodies of their hospitals and the Health Professionals Appeal and Review Board.
The motion judge also struck the claims against all Defendants on two bases. First, as an abuse of process as the claimants had aggregated hundreds of unrelated claims while advancing scandalous and speculative allegations which risked politicizing the judicial process. Second, as the claims disclosed no reasonable cause of action as the Charter and tort claims lacked the necessary material facts and were inconsistent with existing court decisions.
Analysis / Conclusion
On appeal the Ontario Court of Appeal affirmed the motion judge’s decisions.
The Court of Appeal emphasized that courts are not political forums, scientific tribunals, or commissions of inquiry into public policy. Their role is to uphold the law by resolving legal disputes. Proceedings brought primarily to advance a political agenda rather than to resolve a legal dispute can be, and in this case were, an abuse of process.
The claim attempted to challenge the entirety of Ontario’s pandemic response, and many of those measures had no connection whatsoever with the claimant’s loss of employment. Because the claim lacked a focused claim supported by a proper factual foundation, the motion judge correctly concluded that the lawsuit was an abuse of process which should be remedied by striking the claims, with the claimants having leave to amend their claims in accordance with the motion judge’s reasons.
The Court of Appeal also affirmed the motion judge’s conclusion that the claims were not legally viable. The alleged Charter claims would fail against most of the Defendants because only public bodies are subject to the Charter.
Furthermore, the claims were doomed to fail. They asserted claims based on Charter rights that do not exist or failed to include any material facts that would demonstrate how the plaintiff’s rights had been violated. The claims for conspiracy, misfeasance in public office, intimidation, and intentional infliction of mental anguish only contained bald allegations of wrongdoing with no particulars. The claims that Ontario’s pandemic response violated international law and constituted crimes against humanity also failed for the lack of pleading any materials facts to support those claims.
The Court of Appeal went on to confirm that unionized claimants must arbitrate their disputes because labour arbitrators have exclusive jurisdiction of the subject matter of employment claims, which is the core harm alleged.
Similarly, there is a legislated process in the Public Hospitals Act for the resolution of disputes that privileged hospital staff are required to complete before they can bring claims to the court seeking a declaration that their privileges were unlawfully revoked.
The Court of Appeal concluded by reiterating that courts exist to resolve legal disputes grounded in concrete facts and affirmed: “[t]he motion judge correctly recognized that the appellants’ claim sought 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. The abuse of process doctrine and the motion-to-strike procedure exist precisely to prevent such misuse of the judicial process. The motion judge applied those principles carefully and correctly.”
My Take
The claimants in this case sought the wrong remedies, in the wrong forum.
The court’s role in civil litigation is to resolve legal disputes about the legal rights of the parties to the dispute. If a claim does not identify a claimant’s legal rights and the material facts to support how those rights were violated by the defendants, the claim will fail. By seeking a variety of declarations on various political and scientific issues disconnected from their legal rights, the claimants were asking the court for something that it could not provide.
The Court of Appeal rightly noted that there were avenues available for the claimants to pursue claims that their employment rights had been violated: labour arbitration in the case of unionized employees, a statutory dispute resolution process for privileged hospital employees, and employment law claims for individual employees.
Although it is not addressed in the decision, the claimants may now be outside of the applicable limitation periods to pursue those remedies because of the time spent pursuing a claim that couldn’t succeed.
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