'Breach is clear,' judge says in granting preliminary injunction
A Superior Court judge has ordered the Niagara Alternative Learning Alliance to cease all operations in Virgil – and anywhere else – after a hearing on Friday morning.
“The breach is clear,” the written decision from St. Catharines Justice Meredith Donohue says.
“The respondents choice to gather up to 40 unmasked children plus a number of unmasked adults from 25 different families on a daily basis demonstrates an imminent threat to the health, safety or welfare of such children.”
Donohue ordered Monica McCourt and Lori Davidson, co-founders of the Niagara Alternative Learning Alliance, to stop providing child care until the final adjudication of the application or a further order from the court.
The preliminary injunction was granted following an application by the Ontario Ministry of Education.
The judge acknowledged COVID-19 has created unprecedented stress on families and noted McCourt and Davidson are “sincere and well-meaning in their personal desire to foster the health and well-being of their children.”
However, she said, they cannot refute the jurisdiction of the Ministry of Education’s mandate to ensure the health and well-being of the children of Ontario.
The decision notes the learning pod does not “fit any of the exceptions or exemptions under the” Child Care and Early Years Act that would allow the pod to continue operating.
Donohue said the learning pod is not a homeschooling operation and does not qualify as an unlicensed child care or as a private school. She further wrote that McCourt and Davidson have not made an attempt to pursue a proper private school licence.
They did, however, seek a “temporary licence from the court to operate as a private school outside the parameters of the requirements under the Education Act.”
Donohue said she knows of no authority that could make that possible.
The judge noted the pod operators said anyone at the school not wearing a mask has a mask exemption and that “their unmasked children are discriminated against at school so they seek to homeschool them. This is not homeschooling. This is a gathering of families in a commercial space.”
The children are attending during normal school hours on normal school days, Donohue said in her ruling
On Jan. 27, a compliance order was issued to the pod to reduce its operation to no more than five children, the court's decision says.
However, a Ministry of Education investigation found the pod continued to operate with its regular capacity, ministry lawyer Nansy Ghobrial told the online court hearing.
Due to their continued non-compliance, a “protection order pursuant to section 37” was issued, Ghobrial said. “The protection order required them to cease the provision of child care, period.”
Further surveillance by the ministry showed the pod still continued operations, Ghobrial said.
“This blatant flouting of the law is what necessitated the commencement of this application on an urgent basis,” she told the judge.
“At its core, this application is about the welfare of children and as such this relief is not only in the public interest but is necessary for the court to condemn the blatant flouting of valid legislation.”
Court submissions by McCourt and Davidson had made it clear they intended to continue operations regardless of contravening the law, Ghobrial said.
“This conduct is precisely what the act is intended to prevent, to ensure the safety and welfare of children in Ontario.”
The protection order was issued under the Child Care and Early Years Act., which states that any child care centre with more than five children needs a licence to operate.
The legislation “absolutely captures the operations of the respondents,” Ghobrial said.
She said the pod was breaching part of the act that says, “No person shall operate a premises where child care is provided except under the authority of a licence to operate a child care centre.”
The ministry’s investigation determined the pod does not fall under any legitimate exemptions or exceptions to the child care act, she said.
The judge stated in her decision that an investigator from the ministry saw 29 children in the school on Jan. 26 and the next day the operators were served with the compliance order limiting the pod to no more than five children.
During the hearing, Ghobrial noted this case had no direct precedent as it was the first of its kind under section 38 of the act.
That section states, “If a director believes on reasonable grounds that the provision of child care by a particular person poses an imminent threat to the health, safety or welfare of any children, the director may apply to the Superior Court of Justice for an order to restrain the person from providing child care.”
Representing themselves in court, McCourt and Davidson argued the pod is exempt from the ministry’s jurisdiction.
During the hearing, Davidson criticized The Lake Report journalist who has written about the learning pod and threatened to file a criminal complaint against him for visiting the school last week.
Davidson said the ministry’s claims of having done a thorough investigation were false and that the alliance is not subject to the child care act or authority of the ministry, making the protection order illegitimate.
She further contended they were not breaking any COVID-19 protocols.
In response to a question from Donohue, Davidson confirmed the unmasked children and adults were indeed exempt from wearing masks in the pod.
Davidson told the court the ministry should not base any decisions on newspaper articles, a comment that prompted Donohue to tell her the ministry does its own investigations and no action is taken solely based on a media report.
She emphasized the only information that matters to the court is the law and the evidence presented in the case.