Evidentiary Issues In Vaccination Cases

Since the outbreak of COVID-19 in early 2020, the Ontario family courts have heard numerous cases concerning parenting decisions during the pandemic, including whether a child should be vaccinated against COVID-19. On February 3, 2023, the Ontario Court of Appeal released its decision in J.N. v. C.G., 2023 ONCA 77. The decision provides valuable guidance for future vaccination cases, addressing numerous evidentiary issues that arise in these types of cases.

The parties in J.N. v. C.G. have three children. The oldest child lives with the appellant’s father, and the two younger children live with the respondent’s mother. The appellant brought a motion that he be granted sole decision-making authority in respect of the COVID-19 vaccine for the two younger children. The motion judge dismissed the motion, relying on the respondent’s evidence (information downloaded from the Internet) calling the efficacy and safety of the vaccine into question, and on Voice of the Child Reports in which the children stated that they did not want to receive the COVID-19 vaccine. The motion judge also gave little weight to the appellant’s evidence, which included materials from the Government of Canada and the Canadian Pediatric Society stating that the vaccine is safe and effective for children.

The Court of Appeal granted the appeal, finding that the motion judge committed palpable and overriding errors in his analysis and consideration of the parties’ evidence, and incorrectly placed the burden of proof on the appellant.

First, the motion judge erred in relying on the respondent’s evidence as tantamount to expert evidence. The respondent filed documents downloaded from the Internet, written by individuals who held themselves out as experts in their fields. The motion judge “fell into error by not assessing whether each document presented by the respondent was reliable, independent, unbiased and authorized by someone with expertise in the area”. Indeed, the Court of Appeal held that the respondent’s evidence lacked any indicia of reliability or expertise, and should have been afforded no weight at all.

Second, the motion judge erred in failing to meaningfully analyze and consider the appellant’s evidence, including reports of public officials (the Government of Canada). Notably, there was no consideration of the public document exception to the hearsay rule, codified in s. 25 of the Ontario Evidence Act, which provides that reports of public officials are admissible for the truth of their contents. While the Court of Appeal declined to determine whether judicial notice should be taken of the safety and efficacy of the COVID-19 vaccine, the Court concluded that the motion judge “erred in failing to conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise.”

Third, the motion judge erred in relying on the Voice of the Child Reports of the two younger children. The Reports indicated that the children’s views on the COVID-19 vaccine were influenced by the respondent, yet the motion judge failed to acknowledge that influence in considering whether the children’s views were independently formulated. Accordingly, the Court of Appeal held that the motion judge erred in giving any weight to the children’s views.

Finally, the motion judge erred in placing the burden of proof on the appellant, and finding that the appellant’s evidence (including evidence of regulatory approval of the vaccine) failed to meet that burden. The Court of Appeal held that in cases where a party seeks to have a child treated with medication that has been approved by Health Canada, “the onus is on the objecting party to show why the child should not receive that medication.” The Court of Appeal further held that courts should take judicial notice of regulatory approval and that regulatory approval is a strong indicator of a medication’s safety and effectiveness.

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