Ontario Appeal Court Overturns Previous Ruling in Favour of Mother Who Doesn’t Want Her Children Vaccinated for COVID-19

A COVID-19 vaccine is administered at a "Kids and Families Vaccine Clinic" operated by Black Creek Community Health Centre in Toronto on Jan. 13, 2022. Chris Young/The Canadian Press

Ontario’s top court has overturned a decision made by a superior court last year that ruled in favour of a mother who didn’t want her two children to receive the COVID-19 vaccines due to concerns over potential side effects.

The mother was contesting a motion brought forward by her ex-husband on Jan. 25, 2022, that asked for a court order that both children—aged 10 and 12 at the time—get injected with the vaccines followed by “all recommended” booster shots. The children had said they did not want to be vaccinated.

The ruling by the Court of Appeal on Feb. 3 means that the decision of Superior Court Justice Alex Pazaratz last February is now set aside, and that the father is granted the “sole decision-making authority” with respect to the two children’s vaccination against the virus.

In his ruling, Justice Jonathon George of the appeal court said the superior court judge “fell into error” by “not assessing whether each document presented” by the mother in support of her position was “reliable, independent, unbiased and authorized by someone with expertise in the area.”

The father’s appeal argued that Pazaratz “erred” by accepting and relying on the mother’s online resources as “expert” evidence and as “credible sources of information.” He further contended that the judge found his materials gathered “from public health authorities and other well-known sources” to be “credibly disputed.”

Pazaratz had ruled against the father’s motion, explaining that his decision was based on the best interests of the children and legitimate concerns from the mother that the COVID-19 shots could have side effects.

“Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements,” Pazaratz wrote in his ruling on Feb. 18, 2022.

The judge noted that government pandemic policies were “constantly” changing, and so any attempt to base a ruling on COVID-19 policies was akin to making a judgement based on a “moving target.”

Pazaratz also argued that government experts may not be experts after all in accessing the risks that come with COVID vaccines.

“Government experts sound so sure of themselves in recommending the current vaccines. But they were equally sure when they told us to line up for AstraZeneca. Now they don’t even mention that word,” he said.

Arguments

Documents the father submitted in his affidavit included government information and fact sheets, such as those titled “Vaccines for Children: COVID-19” and “The Facts About COVID-19 Vaccines,” as well as materials from the Canadian Paediatric Society.

“Instead of engaging in an analysis of the evidence presented, [Pazaratz] 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,” George wrote.

The mother submitted several articles including one from the U.S. Centers for Disease Control and Prevention, titled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA COVID-19 Vaccines Among Adolescents and Young Adults,” and another article by Dr. Robert Malone, the inventor of the mRNA vaccine, titled “Are People Getting Full Facts on COVID Vaccine Risks?”

She included in her affidavit as well an eight-page fact sheet issued by Pfizer in June 2021 on the possible risks associated with its COVID-19 vaccine.

Among the side effects identified in the fact sheet were severe allergic reaction, swelling of the face and throat, inflammation of the heart muscle (myocarditis), diarrhea, and vomiting. The document notes that there is only a “remote chance” the vaccine will cause a severe allergic reaction and that incidences of myocarditis are “very low.”

George countered that Pfizer is required by law to disclose potential side effects, adding that Pazaratz “seemed to find justification” for the mother’s position that “the children should not be vaccinated.”

“By doing so 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 ruled.

The appeal court judge said some of the doctors cited by the mother in her submissions, and which Pazaratz assessed as “competent and credible medical professionals,” have “no apparent or verifiable expertise.”

“The motion judge’s description of Dr. Malone, Dr. [Tess] Lawrie and the other authors cited by the respondent—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,” George wrote.

A search on Google Scholar found that Malone has written nearly 100 scientific publications with over 13,000 citations of his work with an “outstanding” impact factor rating, measured by h-index and i10-index. The higher the indexes’ scores are, the better.

Lawrie, director of Evidence-Based Medicine Consultancy Ltd. and co-founder of the World Council for Health, has over 100 publications that received more than 6,000 citations, according to ResearchGate.

‘Dismissive Character Assassination’

George noted that several courts “have already taken notice of the safety, efficacy and importance of paediatric COVID-19 vaccines.”

“Some have even taken judicial notice of the fact that being vaccinated against COVID-19 is in the best interests of a child, unless there is a compelling reason not to.”

Pazaratz argued in his ruling he wasn’t prepared to apply judicial notice, which refers to recognizing certain facts as “so notorious or generally accepted as not to be the subject of debate among reasonable persons,” according to Canadian law when it comes to weighing evidence.

“We’re seeing more and more of this type of intolerance, vilification and dismissive character assassination in family court,” Pazaratz wrote.

“Presumably we’re seeing it inside the courtroom because it’s rampant outside the courtroom. It now appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you.”

By referring to the articles submitted by the mother, Pazaratz said he was not suggesting that those “experts are right.”

“But once we determine they’re not crackpots and charlatans, how can we presume that they are wrong? Or that they couldn’t possibly be right about any of their warnings?” he had ruled.