COURT OF APPEAL FOR ONTARIO SARAH HARJEE, EVAN KRAAYENBRINK, HIBAH AOUN, SARAH LAMB,

The Respondent has not produced any studies or data with respect to the effects of the measures on the Ontario population, other than a pre- print study indicating for a short period after the announcement of the Measures, there was a modest increase in uptake of the first dose of the vaccine. [...] [176] The problem here is the combined effect of the (non-absolute) requirement to be vaccinated and the related consequence to the individual of refusal, namely the loss of his or her job. [...] The employees and patrons were both at the same location and posed the same hypothetical risk, yet the Measures only applied to the patrons and exempts the employees. [...] In Fraser, the Supreme Court recognized that “courts should be mindful where the evidence is under- documented, the courts will have to rely more heavily on the evidence of the applicants.” In Sharma, the Supreme Court held that the evidentiary burden on the applicants cannot be unduly onerous, and the court is mindful of evidentiary hurdles and the asymmetry of knowledge (relative to the state) t. [...] In Chaouilli, the Court held that the trial judge erred in placing the onus on the appellants to solve the problem of waiting list in hospitals and that the onus correctly rested on the Attorney General.