Top Toronto health official wins rare intervenor status in court battle over vaccinating couple's children

Toronto’s chief public-health official has won the right to intervene in a court dispute over vaccinating a divorced couple’s children, a rare step Dr. Eileen de Villa says was necessary to combat dangerous misinformation about vaccines.

The city’s medical officer of health (MOH) now has lawyers taking part in an appeal slated for September, after an earlier arbitration decision ruled it was better for the two children not to be immunized.

The health department’s request to intervene came in the midst of the COVID-19 pandemic, where wide adoption of vaccines, when they become available, is considered crucial to ending the crisis.

De Villa has become a familiar face as one of the experts holding daily, televised briefings on the coronavirus.

Her “interest in this appeal is informed in part by a rising threat to public health,” the department argued in written submissions. “A serious challenge for public health officials today is the proliferation of misinformation surrounding the utility, efficacy and safety of vaccinations.”

“A reduction in vaccinations due to vaccine hesitancy can reduce herd immunity and lead to outbreaks, and also puts vulnerable individuals at risk,” the city said.

Neither parent in the dispute nor their children can be identified under a court-ordered publication ban designed to protect the young people.

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But the mother, who objects to having the pair immunized, had opposed the health department’s intervention in the case. Her lawyers argued it would duplicate testimony from another public health official called on by the father , and that the case hinged on the specific interests of one family, not the broader questions of vaccine benefits and risks.

Justice Jasmine Akbarali disagreed in a judgment issued quietly this spring, saying the case was now in the public sphere of the courts — not a private arbitration — and the results could have a broader societal impact.

“The MOH can make a unique contribution and offer a distinct perspective on the issues raised in this appeal, which may assist the court in understanding the impact of its judgment beyond the private interests of the parties and their children,” said the judge.

Lawyer Gary Joseph, who represents the mother, declined comment on the ruling.

The couple, referred to as A.P. and L.K., was granted joint custody of the children in a 2015 decision that set out a dispute-resolution system.

Ruling as an arbitrator on one such disagreement last year, lawyer Herschel Fogelman sided with the mother and said the children should not receive standard childhood vaccinations. He cited at length testimony from Dr. Toni Bark , an American doctor who has shifted her practice largely to alternative medicine and is a staunch vaccine critic.

“Choosing not to vaccinate is not illegal, negligent nor immoral. It is a personal choice,” Fogelman wrote. “I am unable to find any risk to (the children) if they remain unvaccinated. Further, I am satisfied on the evidence the vaccines may pose additional risk to them.”

The arbitrator also ordered the father to pay $35,000 of his ex-wife’s legal costs, $11,000 of that to cover Bark’s fees.

But several infectious disease and public health experts, some of whom volunteered to provide evidence to help the father’s case, have since responded that the scientific record contradicts most of Bark’s contentions.

In fact, de Villa argued in part that her intervention was needed because judges and other adjudicators must act as gatekeepers and protect the justice system from such “unreliable ‘expert’ evidence.”

Failing to do so “can result in flawed judicial decision-making, reduce the confidence of the public in our system of justice and bring the administration of justice into disrepute.”

The mother’s lawyers responded that the arbitrator acknowledged there was broad government support for vaccination, and said he was not ruling on the general question of whether the drugs work and are safe.

“The only question was whether it is in the best interests of our two children to be vaccinated,” the mother’s representatives told the court. “The appeal of a private family law arbitration is not an appropriate forum for the city to pursue its policy objectives in relation to systemic vaccination.”

The mother also argued that intervention by de Villa would make the children the focus of a “highly publicized policy dispute,” harming them further after media coverage of the case had already caused stress and anxiety. The mother herself has been the target of online bullying, the lawyers said.

But the judge said he had already addressed the impact on the children by ordering earlier that the media could not identify them or their parents in any way.

• Email: tblackwell@postmedia.com | Twitter: tomblackwellNP