Headline in Newspaper

Judge's ruling misinformed

Headline in website

Ontario judge was wrong to rely on anti-vaccine misinformation: Court of Appeal

newspaper ---- Court overturns decision based on anti-vaccine internet postings

website ----- Instead of evaluating the evidence, a Hamilton judge “embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible.”

The Toronto Star, by Jacques Gallant, Courts and Justice Reporter, Feb. 6, 2023

The Court of Appeal overturned the decision made last year by Superior Court Justice Alex Pazaratz, and instead granted authority to the father.

The parents in the case are separated and are split on the issue of vaccination for the two youngest children, who live with their mother.

The father, identified only as C.G., argued in court last year that there’s no medical reason not to vaccinate the children. The mother, identified as J.N., argued there was sufficient doubt about the vaccine’s safety and effectiveness. The children said they did not want to be vaccinated.

The Court of Appeal’s decision is not an order that the children — who were 10 and 12 at the time of Pazaratz’s ruling — be vaccinated. It simply means that it is now solely the father’s responsibility to address the topic of COVID-19 vaccines with them.

“There is no reason to doubt the appellant’s motivation and stated desire to approach this very sensitive issue in a measured way and with a view to the children’s best interests,” wrote Justice Jonathon George for a unanimous three-judge appeal panel.

J.N. represented herself before the Court of Appeal.

“We are very pleased with the outcome,” said C.G.’s appeal lawyers, Erin Pleet and Jonathan Richardson. “The father would appreciate privacy at this time.”

The top court found that Pazaratz placed far more weight on the mother’s submissions than on the father’s, who had presented information from Health Canada and the Canadian Paediatric Society showing that COVID-19 vaccines are safe and effective, including for children.

The mother, meanwhile, mostly submitted online posts “primarily from those who cast doubt on the importance and safety of the vaccine,” George wrote.

“The information relied upon by the respondent was nothing but something someone wrote and published on the internet, without any independent indicia of reliability or expertise.”

In his initial ruling, Pazaratz described the father as “dogmatic, intolerant and paternalistic,” while saying that the mother’s sources were “qualified and reputable.”

The judge also refused to take “judicial notice” that COVID-19 vaccines are safe and effective, saying information about them was a “moving target.” (Judicial notice means something is so widely known and accepted that a judge doesn’t need expert evidence to accept that it’s true.)

Pazaratz pointed to the forced sterilization of Inuit women, residential schools, and the internment of Japanese Canadians during World War II to argue that courts should be hesitant to “take judicial notice that the government is always right.”

The top court described those comparisons as “inapt.”

“In my view, the motion judge fell into error by not assessing whether each document presented by the respondent (mother) was reliable, independent, unbiased and authorized by someone with expertise in the area,” wrote George in the appeal decision.

“Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.”

Some of the doctors cited by the mother have been accused of spreading misinformation about the vaccines, yet they were relied upon as experts by Pazaratz despite there being “no apparent or verifiable expertise,” George wrote.

Pazaratz’s description of some of the authors as “leaders in their fields … seems to be based on nothing more than their ability to either create a website or be quoted in one.”

The judge also “seemed to find justification for the respondent’s position that the children should not be vaccinated” by relying on a Pfizer fact sheet submitted by the mother that outlined potential side effects of the vaccine.

George pointed out that the company is required by law to disclose potential side effects.

“The motion judge treated the respondent as an expert in assessing pharmaceutical disclosure, while essentially dismissing those who are best positioned to interpret this information — public health authorities — who know how to factor the possibility of side effects into the approval process,” George wrote.

The appeal court said there’s no question that there is a COVID-19 pandemic, that the disease kills people, and that the vaccines have received approval from Health Canada.

“It is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination,” George wrote.