A. Suboch

The defendant, 961557 Ontario Ltd., operating as "The Crooked Cue," was charged with failing to comply with an emergency order under the Emergency Management and Civil Protection Act for operating an indoor dining area during COVID-19 restrictions.

The prosecution alleged the establishment was not an "outdoor dining area" as required by O. Reg. 263/20.

The court found that the prosecution failed to prove the actus reus beyond a reasonable doubt, primarily because no clear, written regulatory order was established, and the interpretation of "outdoor dining area" by public health officials was subjective, inconsistent, and based on fluid guidelines rather than the regulation's plain wording.

The charge was dismissed.

The defendant, 961557 Ontario Ltd. (The Crooked Cue), was charged with failing to comply with an emergency order by operating an indoor dining area during Stage 2 COVID-19 closures, which only permitted outdoor dining.

The defendant brought a motion for non-suit, arguing the prosecution failed to adduce evidence proving the establishment was not an outdoor dining area.

The court dismissed the motion, finding that there was sufficient admissible evidence, direct and circumstantial, which if believed, could reasonably support a finding of guilt.

The court clarified that the test for a non-suit motion does not permit weighing evidence or assessing credibility, distinguishing it from the s.11(b) analysis for delay under R. v. Jordan.

The defendant brought a motion that was ultimately deemed abandoned after the plaintiff agreed to limit his claims to policy limits.

A dispute also arose regarding who could cross-examine the defendant, leading to thrown away costs.

The court awarded the plaintiff $6,262.26 in costs thrown away, representing approximately half of the fees sought plus disbursements, noting that the motion was not certain to succeed and the plaintiff was put to unnecessary expense.