Seite - 220 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE220 Suasion Judicial review remedies are available in respect of decisions that have an impact on “the rights, interests, property, privileges, or liberties of any person.”38 This list is not to be parsed like a taxing statute but rather is to be given a large and liberal interpretation such that any modification to an individual’s legal position can be scrutinized for conformity with public law principles of reasonableness and fairness. It is not boundless, however. For example, government pro- nouncements do not, in any sense, modify the legal position of any individuals. Consider Ontario’s use of the emergency alert system in April 2020, blaring a message out across the province’s smartphones. The emergency alert suggested that residents of Ontario should not leave their homes at all-in fact, circulating freely was and is still not prohibited39 as long as large gatherings are avoided; indeed, non- essential businesses were not ordered to close until the day after the alert was sent out.40 Nonetheless, although the terms of the alert might be debated as a matter of political propriety, it would be difficult if not impossible to persuade a court to judicially review an alert that did not impose any obligations or otherwise modify anyone’s legal position. As for government guidance, it has long been difficult to seek a judicial review of soft law instruments. A clue lies in the term: although such instruments are designed to guide (hence “law”), they do not bind (hence “soft”). Accordingly, they are subject to judicial review only in a relatively limited set of circumstances, such as where they conflict with legislation or delegated legislation,41 prevent a deci- sion maker from exercising a discretionary power,42 or violate Charter rights (but only in situations where the soft law instrument has bind- ing force).43 38. Martineau  v  Matsqui  Institution  Disciplinary  Board  (No  2), [1980] 1 SCR 602 at 623, Dickson J, dissenting. 39. See Government of Ontario, News Release, “Ontario Prohibits Gatherings of More Than Five People with Strict Exceptions” 28 March 2020), online: Ontario Newsroom <news.ontario.ca/opo/en/2020/03/ontario-prohibits-gatherings-of-five-people- or-more-with-strict-exceptions.html?utm_source=ondemand&utm_medium= email&utm_campaign=p>. 40. See O Reg 119/20. 41. See for example  Ishaq  v  Canada  (Minister  of  Citizenship  and  Immigration), 2015 FC 156. 42. See Maple  Lodge  Farms  v  Government  of  Canada, [1982] 2 SCR 2, 137 DLR (3d) 558. 43. See Greater  Vancouver  Transportation  Authority  v  Canadian  Federation  of  Students— British Columbia Component, 2009 SCC 31.