Mercedes Perez successful in tuberculosis detention case

In Rae v. Collins, the Ontario Court of Justice considered the rarely invoked detention powers in Ontario’s Health Protection and Promotion Act (“HPPA”) in the context of a man infected with tuberculosis. In this unreported case, Mercedes Perez successfully argued that the quarantine detention powers should be subject to a minimally intrusive standard; that is, that detention should be ordered only for as long as necessary to protect the public from infectious diseases.

One of the purposes of the HPPA is the prevention of the spread of diseases and the promotion and protection of the health of the people of Ontario. To this end, a medical officer of health can apply to the Ontario Court of Justice for a quarantine order where a person with a virulent communicable disease fails to isolate himself or herself and remain in isolation from other persons.  Such orders, in addition to authorizing detention in hospital, may also require that the person submit to an examination by a physician; place himself or herself under the care and treatment of a physician; and/ or conduct himself or herself in such a manner so as not to expose another person to infection. The Court may order that the person be taken into custody and admitted to an appropriate facility, be examined, and be treated for the disease for a period no longer than six months subject to further orders of the court.  Some persons with tuberculosis have been ordered detained in hospital for more than a year.

In this case, the Associate Medical Officer of Health for the City of Toronto sought an application pursuant to s. 35 of the HPPA to have Mr. Collins, who had tested positive for tuberculosis, detained in hospital for six months to avoid infecting others.  There was no dispute that Mr. Collins had a virulent communicable disease.  The Court further found that Mr. Collins had previously failed to follow recommended isolation protocols in the community to protect the public from the risk of infection.   While the Associate Medical Officer of Health was seeking detention until such time as Mr. Collins was cured of tuberculosis (which could take 9 months or more), Mercedes argued that in the circumstances of Mr. Collins’ case, detention in hospital was only justifiable until such time as he was non-infectious (which might occur within a month or two).  Mercedes also argued that the conditions of detention in hospital were overly intrusive and unnecessary.  For example,  Mr. Collins was often locked in his room and was followed by a security guard at all times.  The Court agreed that such measures were unnecessary to protect the public.  The Court  agreed that any intrusions on Mr. Collins’ liberty must be the least onerous and least restrictive.

Read the decision here:    Rae v. Collins Dec2018