Ford government faces legal challenge over failure to provide vaccine equity

Community advocates warn some members of vulnerable populations will be at greater risk of death from COVID-19 without urgent change of course

Toronto, March 16, 2021 – Concern that Ontarians most at risk of attracting the COVID-19 virus will not receive fair access to the vaccine is prompting a legal challenge to the Doug Ford government. The challenge alleges that the Province is violating Charter Rights of life, liberty, and security of the person and equal treatment for some people with disabilities, those experiencing poverty and homelessness, and seniors who are homebound or on the wrong side of the digital divide. Vaccine inequity also affects individuals who are Black, Indigenous, and People of Colour.

“We are extremely worried that there are insufficient government plans and resources in place to ensure all Ontarians with disabilities will be vaccinated,” said Tracy Odell, President of Citizens With Disabilities – Ontario. “People with disabilities have been an afterthought throughout this pandemic; we must have fair access to lifesaving vaccines. When the government had Astra Zeneca vaccine to distribute, it was given to those 60-64 who were able to book online, travel to, and line up at pharmacies or other vaccination sites. No vaccine equity plans were in place to get that vaccine to those under 65 years who were higher priority and at greater risk.”

Ontario’s Ministry of Health has attempted to delegate its responsibility for vaccine delivery to Public Health Units (PHUs) with no obligation to follow vaccine equity guidelines, including outreach to those who most need accommodation in order to access the vaccine. Different PHUs address equity issues differently. Some will make serious efforts, but not all will.

The Ministry of Health Equity Branch and the Anti-Racism Secretariat [ARS], together with the Minister of Health and the COVID Task Forces are to ensure distribution of vaccines to at risk persons in priority groups based on need. They know what is required and are mandated to ensure persons, within priority groups, receive necessary accommodation in the distribution process, particularly if they cannot access online booking and/or attend at mass immunization sites.

“We serve a racialized and low-income neighbourhood and COVID has hit these community residents harder than most,” said Cheryl Prescod, Executive Director, Black Creek Community Health Centre. “We are doing our best with our partners to help roll out vaccine. But we need more help to bring vaccine quickly to the people who need it the most.”

Supporters of the legal challenge are calling for the Ford government to direct all 34 PHUs in the province to implement a plan for vaccination equity, provide the PHU’s with the required provincial resources to do so, and monitor to ensure equity in vaccine delivery is achieved.

“Valuable time has passed, but there are some remedies that might be applied even at this late hour with the appropriate supports and resources,” said Dr. Michael Rachlis, Adjunct Professor at the University of Toronto Dalla Lana School of Public Health. “For example, public health unit engagement with relevant organizations and communities, and collaboration with home care nurses and personal support workers would allow more at risk but harder to reach Ontarians to be vaccinated.”

The legal challenge is being brought by human rights law firm bakerlaw, on behalf of their client David Daneshvar. A case management conference is being scheduled for Wednesday in the Divisional Court, where it will become clear whether the provincial government intends to take the issue of vaccine equity seriously and agree to an urgent hearing of the case before it is too late.

“Without vaccination equity, those who are at greatest risk will not be vaccinated, despite being members of priority groups,” said lawyer David Baker, Senior Partner at bakerlaw. “Their need is extremely urgent. It is not an exaggeration to say that for them it is a matter of life and death.”

Major provincial health care groups have also expressed serious concerns about the lack of equity in the Province’s vaccine roll out plan. Earlier this month the CEOs of the Ontario Medical Association, the Ontario Hospital Association, the Ontario College of Family Physicians, the Alliance for Healthier Communities, the Association of Family Health Teams, the Nurse Practitioner Association of Ontario, and the Nurse-led Clinic Association all expressed concern that the vaccine roll out would not occur equitably to Premier Ford.

Already, evidence is accumulating that restricting vaccine access to online booking and making inadequate provisions for phone contact or community outreach will mean many whose need is greatest will, if they survive, be vaccinated last. This will significantly disadvantage certain populations. While persons experiencing homelessness are one of the groups prioritized in Phase 1 vaccinations, and fairly comprehensive plans for vaccine delivery have been adopted in some cities such as Toronto and Ottawa, as of March 5^th there was no evidence of operational planning to vaccinate the at least several hundreds of homeless persons in York Region.

To view the full press release, click here (link).

You can read the Notice of Application here (link).

You can read the Notice of Constitutional Question here (link).

You can read the Applicant’s Factum here (link).

You can read the Respondent’s Factum (link) and Book of Authorities here (link).

The Application will be supported by the evidence of Dr. Jutta Treviranus (link), Dr. Michael Rachlis (link) and Dr. Arjumand Siddiqi (link).