Seite - 221 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

221Governmental Power and COVID-19: The Limits of Judicial Review The recent decision in Sprague  v.  Her  Majesty  the  Queen  in  right  of Ontario44 is highly instructive. This was an application for judicial review brought in the Divisional Court on behalf of an inpatient at the York General Hospital. The applicant was the inpatient’s son. The inpatient, who suffered from an acquired brain injury, had been moved to the hospital from a long-term care facility for reasons unre- lated to COVID-19. At the hospital, the inpatient was assigned to a ward of patients particularly vulnerable to COVID-19. After the inpa- tient’s hospitalization, the Chief Medical Officer of Health for Ontario issued a memorandum to hospitals strongly recommending that only essential visitors be permitted. On foot of the memorandum, the hos- pital instituted a “no visitors” policy, which prevented the inpatient’s son from visiting his father. The Divisional Court rejected the appli- cant’s attempts to judicially review the memorandum and policy. As for the policy, it was not a public act subject to judicial review but rather a private act relating to the hospital’s management of access to its premises.45 As for the memorandum, it was not issued pursuant to a statutory power, had no legal force, coerced no one, and did not require anyone to do or refrain from doing anything; it was a mere recommendation over which the courts have no supervisory jurisdic- tion. For much the same reasons, the memorandum was not subject to review for compliance with the Charter.46 A different factual and legal matrix might lead to a different result in terms of the susceptibility of government guidance to judi- cial review, but there is no doubt that the circumstances in which pan- demic-related soft law instruments will be reviewed for compliance with public law principles (including the Charter) are limited. Conclusion In the first section of this chapter, I outlined the different forms that governmental power can take—imperium, dominium, and suasion—and identified how each has been used in response to the pandemic. In the second section, I turned my attention to judicial oversight of these dif- ferent forms of governmental power, concluding that any such over- sight will probably be strictly limited. Accordingly, any shortcomings 44. 2020 ONSC 2335 [Sprague]. 45. It was also not issued in the exercise of a statutory power of decision as per the Judicial Review Procedure Act, RSO 1990, c J.1. 46. Sprague, supra note 44 at para 60.