On April 7, 2021, the OBA Public Sector Lawyers Program hosted a virtual event titled: “Recent Top Decisions Public Sector Lawyers Need to Know”, chaired by Kate Julien, a Strategic Policy Advisor at the Alcohol and Gaming Commission of Ontario and Laura Pettigrew, General Counsel at the Office of the Ontario Ombudsman.
Sara Blake, General Counsel at the Ministry of the Attorney General, and Fredrick Schumann, partner at Stockwoods LLP, shared insightful updates on the latest in public law jurisprudence including several pandemic-related cases.
The event began with Blake’s presentation on ‘Regulation during a Pandemic’. Blake provided a list of recent decisions from various provinces related to education, health, residential evictions, social assistance, travel, and charter rights, highlighting several decisions in detail.
One of the decisions Blake discussed was Ontario (Attorney General) v. Persons Unknown, 2020 ONSC 4676. This decision concerned the suspension of residential evictions in Ontario between March and July 2020. In March 2020, Chief Justice Morawetz ordered that the eviction of residents be suspended, unless the court ordered otherwise, for the health and safety of the court’s enforcement officers and to mitigate the risk of community transmission of COVID-19. On July 6, 2020, the Chief Justice issued an order that would end the suspension at the end of the month. Ontario (Attorney General) v. Persons Unknown concerns a motion by the Advocacy Centre for Tenants Ontario “ACTO” to set aside the July 6 order.
ACTO argued that the “moratorium” against evictions ought to continue, marshalling substantial medical evidence about the ongoing threat of COVID-19 to people in Ontario, especially low-income tenants facing eviction. However, the motion was dismissed. Blake explained that the Chief Justice’s order in March 2020 was not a legal determination on the public policy question of whether Ontario should stop evictions during a pandemic. Instead, the order was an exercise of the court’s inherent jurisdiction to control its own processes, namely, to control the services provided by the court officers responsible for enforcing eviction orders. Accordingly, ACTO’s motion was dismissed for failing part one of the test for granting interlocutory injunctions set out by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General)[1]. While sympathetic to ACTO’s arguments, the motion judge found that ACTO failed to demonstrate that there was a serious issue to be considered, stating, “they want to argue about whether evictions should be allowed in Ontario at this time. The Chief Justice was considering when to bring Enforcement Officers back to work as part of the phased re-opening of the court”.[2]
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