Ontario Divisional Court finds hospital’s policy to deny visitors during pandemic not subject to judicial review and does not breach Charter

  • June 23, 2020
  • Christopher Wirth and Sakshi Chadha

On an urgent application, the Ontario Divisional Court in Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335, found that a hospital’s policy limiting visitor access to certain “essential visitors” was not subject to judicial review and did not breach the Canadian Charter of Rights and Freedoms.


The applicant was the substitute decision-maker for personal care for his father, Mr. Edward Sprague. Mr. Sprague, an elderly patient rendered incapable of personal care, was admitted to the Critical Care Unit of a Toronto-based hospital in March 2020. At the hospital, Mr. Sprague share a unit with other vulnerable patients who are considered high-risk to illnesses like COVID-19.

In response to the COVID-19 pandemic, the Chief Medical Officer of Health for Ontario issued a memorandum on March 19, 2020, recommending that only essential visitors be granted access to patients, with certain exceptions. On March 20, 2020 the Hospital imposed a Visitor Policy which implemented a “no visitor” policy with exceptions which may be granted to patients “requiring end-of-life care, labouring persons and patients under the age of 18.”

Since the hospital did not provide an exception for incapable adults, the applicant and Mr. Sprague  did not fall within the exceptional categories. The applicant was denied in-person access to visit, and was instead permitted alternative electronic communication means such as video calling.

The applicant then filed an application for judicial review of the memorandum to hospitals and the hospital’s  visitor policy, alleging that they violated his father’s protected rights pursuant to ss. 7, 12 and 15 of the Charter.

Divisional Court Decision

The Divisional Court dismissed the application, concluding that judicial review was not available for the visitor policy nor the memorandum. Further, the Divisional Court found that even if judicial review was available, neither the visitor policy nor memorandum infringed Mr. Sprague’s rights under the Charter.

In determining that the visitor policy was not subject to judicial review, the Divisional Court concluded that the visitor policy did not involve the exercise of a statutory authority and did not have “sufficient public character” for judicial review to be available.  In reaching this conclusion, the Divisional Court weighed the factors set out by the Federal Court of Appeal in Air Canada v Toronto Port Authority, 2011 FCA 347.

In balancing these factors, the Divisional Court agreed with the hospital and found that:

  • The character of the matter for which review was sought was the hospital’s authority to implement the visitor policy which is derived from its authority as an owner/occupier to control access to its premises and to protect its patients and staff, although the visitor policy affects the public. A decision that impacts the broader population of the public does not represent that that decision is “public” in an administrative law context;
  • There is no statutory duty upon hospitals to provide general and unrestricted access to their premises or to visitors;
  • The visitor policy was influenced by medical and clinical criteria supported by scientific evidence. The hospital’s decision was shaped by its right as a corporate owner and occupier of private property;
  • Although hospitals are publically regulated in respect of some of their functions, access to hospital premises or visitor policies are not included;
  • Although the memorandum provided recommendations to hospitals and influenced the visitor policy, it was not binding on the hospital. Instead the hospital customized the recommendation  to meet particular circumstances and its patient population; and
  • The COVID-19 pandemic itself is an exceptional circumstance. However, the hospital’s discretion to permit and restrict access based on clinical considerations and scientific evidence to protect its patients and staff is also considered.

With respect to the memorandum, the Divisional Court held that it too was not subject to judicial review as it did not constitute an exercise or purported exercise of a statutory power, was not implemented pursuant to a statutory authority, nor was such authority necessary. The Divisional Court reasoned that the memorandum provided the CMOH’s recommendation that hospitals limit visitors to “essential visitors” to prevent the increase of COVID-19, which hospitals are expected but not statutorily compelled to follow.

Lastly, the Divisional Court determined that the visitor policy did not violate Mr. Sprague’s rights under ss. 7, 12 or 15 of the Charter.

The Divisional Court rejected the applicant’s argument that pursuant to s. 15 the visitor policy creates a distinction which places an undue burden on the elderly and those with mental disabilities, such as incapacity, by identifying some visitors as “essential” and others “non-essential”.  The Divisional Court found that the vsitor policy is not based on presumed characteristics of those over a certain age or who mental disabilities, but instead was established on ample medical and public health professionals expertise, which indicated that elderly patients are more severely impacted by COVID-19. Further, the Divisional Court commented on the fact that the applicant is permitted to fulfil his statutory duties as a statutory decision-maker with or without physical access to his father, by the other alternative communication means provided by the Hospital.

The Divisional Court further recognized the hospitals have significant expertise and specialized knowledge when exercising discretion around administrative matters during a pandemic and commented that it would not attempt to “re-weigh” the “complex and often difficult factors, consideration and choices that must be evaluated by a hospital administration during a pandemic”.

The Divisional Court found that the memorandum was not discriminatory under s. 15 of the Charter, holding that the non-exhaustive list of “essential visitors” that hospitals should consider did not categorically exclude substitute decision-makers nor did it make a distinction between patients whose visitors are considered “essential” versus “non-essential”. The Divisional Court also held that patients with “essential visitors” are a heterogeneous group sharing no common personality characteristics.

With respect to the s. 7 Charter argument, the Divisional Court held that the visitor policy was not arbitrary as there is a link between the decision to restrict visitors and the significant health outcomes from being unable to prevent the spread of COVID-19, and that the visitor policy is not overbroad, as it considers exceptions to the “no visitor” rule.


This decision confirms that courts will afford significant deference to hospitals exercising their discretion around administrative matters. Beyond the pandemic, this decision also reinforces that courts will not interfere with hospital policy decisions that are well-supported and based on scientific expertise and specialized knowledge.

Christopher Wirth is a Partner and Sakshi Chadha is an Articling Student at Keel Cottrelle LLP.