Court File and Parties
DIVISIONAL COURT FILE NO.: DC-22-2700
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(Firestone RSJ., Lederer and Morgan JJ.)
BETWEEN:
KELLY HALE and J.A.K.K. TUESDAYS SPORTS PUB INC.
Appellants
– and –
DR. PIOTR OGLAZA, MEDICAL OFFICER OF HEALTH KINGSTON, FRONTENAC AND LENNOX and ADDINGTON PUBLIC HEALTH
Respondents
Kelly Hale, personally for the Applicants
Laura Dowsley, for the Respondents
HEARD by video: November 29, 2022
REASONS FOR DECISION
Background
1This is an Appeal from an order made by the Health Services Appeal and Review Board dated February 14,2022. The relevant procedural history is set-forth below.
2Kelly Hale operates the J.A.K.K. Tuesdays Sports Pub in Kingston Ontario. He is ideologically opposed to the measures outlined in Ontario Regulation 364/20 made pursuant to the Reopening of Ontario Act S.O. 2020, c.17 as they apply to the COVID 19 pandemic.
3On November 3, 2021, having received a number of complaints, the Medical Officer Health for Kingston, Frontenac and Lennox & Addington (Dr. Piotr Oblaza) issued an order pursuant to s. 22 of the Health Protection and Promotion Act1:
22 (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order may require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease.
4The issued order required various actions mandated by Ontario Regulation 364/20 made pursuant to Reopening of Ontario Act.2 as responding to the pandemic, presumably in a way that balanced as the legislature thought appropriate, the need to respond to Covid-19 with the desire to see life in Ontario return to what it had been. That Regulation¸ as it existed at the material time, provided General Rules (Schedule 1) applicable to “business or places” and specific rules “Restaurants, bars etc.” (Schedule 2) that applied to the establishment operated by Kelly Hale. Among other things, the Regulation required:
- the person responsible for a business that is open to operate the business in compliance with any advice, recommendations and instructions issued by a medical officer of health after consultation with the Office of the Chief Medical Officer of Health requiring the business to establish, implement and ensure compliance with a COVID-19 vaccination policy.3
- that patrons be physically separated by “at least two meters” when lining up or congregating inside or outside the facility.4
- that the business have a safety plan that describes the measures that have been or will be implemented to reduce the transmission risk of COVID-19 including, but not limited to, screening, physical distancing, masks or face coverings, cleaning and disinfecting of surfaces and objects, the wearing of personal protective equipment and preventing and controlling crowding.5
- the person responsible for the business actively screen individuals in accordance with the advice, recommendations and instructions of the Office of the Chief Medical Officer of Health before they enter the indoor premises of the business, including those who work there, and post signs at all the entrances to the business to inform individuals on how to screen themselves for COVID- 19.6
- the person responsible for the business or place, record the name and contact information of every member of the public who attends a meeting or event and maintain the records for a period of at least one month.7
5The Order issued by the medical officer of health required that Kelly Hale and J.A.K.K. to “immediately”:
Achieve compliance with all requirements for a restaurant as outlined in Ontario Regulation 364/20, Rules for Areas at Step 3 and at the Roadmap Exit and remove all signs promoting and/or advertising non-compliance with Ontario Regulation 364/20, Rules or Areas at Step 3 and at the Roadmap Exit Step; or
Close the establishment known as J.A.K.K. Tuesdays Sports Pub (291142693).
6This directive was followed by a recording of certain portions of both Schedule 1 and Schedule 2 of the Regulation and then listing the reasons for the issuance of the Order.
7Kelly Hale ignored the Order. Not only did he fail to require the patrons at his bar to wear masks, physically distance, screen or provide the information necessary to allow them to be traced, he openly made clear that those who were unwilling to follow the directions made by the government were welcome. To put it clearly, he invited those who came to his business to openly defy the law. Inspectors attended the premises. The signs that had previously been observed were still there notwithstanding that, as part of the Section 22 Order, all signs promoting and/or advertising non-compliance with the Regulation were required to be removed. Among the signs fixed to the door and window of the premises were ones that read:
I PLEDGE: To uphold our unalienable [sic] rights and freedoms of the people of Canada. To run my business and serve clients free from discrimination or segregation based on vaccination status, medical mask exemptions, race religion, creed, disability and or health conditions, gender or sexual identity and any other differences protect under Common Law jurisdiction, the Canadian Bill of rights [sic] and Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.
WE ARE ON THE FREEDOM MAP. WE RESPECT YOUR RIGHT TO MEDICAL FREEDOM. NO QUESTIONS ASKED. FIND THE MAP AT WWW.SAVECANADA.ARMY. SAVE CANADA.
WE DO NOT DISCRIMINATE AGAINST ANY CUSTOMER BASED ON SEX, GENDER, RACE, CREED, AGE, LOCATION VACCINATED OR NOT VACCINATED. ANYBODY WHO SUPPORTS CANADIAN CHARTER OF RIGHTS AND FREEDOMS CANADIAN BILL OF RIGHTS [sic] IS WELCOME.8
8A sign was affixed to a chair. It read:
This chair is reserved for Kingston Frontenac Lennox & Addington Public Health Officer to check vaccine passport information. If this chair is empty, it means that KFL&A is not enforcing the vaccine mandate.
9Kelly Hale refused to remove the signs and told the inspectors that he intended to defy the section 22 Order and the Regulation. On a second occasion the inspectors observed promotional materials indicating an intention to remain open during the Christmas period and inviting to attend a restriction-free Christmas market.9
10The medical officer of health was not prepared to allow what he viewed as an open breach of the regulation to go on. He brought an application authorized by s. 102 of the Health Protection and Promotion Act to enforce the Order he had made:
102(1) Despite any other remedy or any penalty, the contravention by any person of an order made under this Act or of a directive relating to a small drinking water system may be restrained by order of a judge of the Superior Court of Justice upon application without notice by the person who made the order or issued the directive or by the Chief Medical Officer of Health or the Minister.
11By this application the medical officer of health sought a restraining order or, in the alternative, an interim interlocutory injunction. In bringing the Application, the medical officer of health deposed that he was:
… especially concerned by the reports from our enforcement team that the respondents are refusing to wear masks or enforce mask mandates and are refusing to require proof of COVID-19 vaccination, screen for symptoms of COVID-19 or collect contact tracing information. These are clear breaches of the Regulation and present a risk to public health.10
12The judge hearing the application granted the Order sought restraining the breach of the order made under s. 22 of the Health Protection and Promotion Act. In his decision he stated as follows:
Section 102 of the HPPA is an additional tool, over and above other legislative and non-legislative recourse, to ensure compliance with orders and directives of public health officials, providing for the issuance of a restraining order “[d]espite any other remedy or penalty” available.
Clearly the section 22 order has had no impact on the respondents’ behaviour. Section 102 of the HPPA provides that the contravention by any person of an order made under the HPPA may be restrained by order of a judge of this Court. The remedy provided is preventative in nature: to restrain the contravention. The breach does not have to be continuing or ongoing at the time the statutory injunction is granted, although in the present case it is.11
13As s. 102 allows, the order was made without notice to Kelly Hale or J.A.K.K. As a result, and cognizant of the rule applicable to injunctions granted ex parte, the judge required that the proceeding return to Court to allow those two parties to be heard12:
This matter shall be brought back before the court for a further hearing on Friday 19 November 2021 at 11:30 a.m. at the Frontenac County Court House, 5 Court Street, Kingston, at which time the court will receive submissions from the respondents and the applicant as to (a) whether this order, or elements thereof, should be varied, discharged or made permanent; (b) whether the applicant must provide an undertaking concerning damages pursuant to Rule 40.03; and (c) the costs of the application, including the ex parte hearing held on 10 November 2021.13
14It came back before the date the court had prescribed. Two days after the restraining order was made the matter returned at the behest of the medical officer of health. Following the issuance of the restraining order (on the day it was made) the Sheriff had attended at the site. The public health officials who were present confirmed that the bar had continued to operate after the service of the order, contrary to its terms. Moreover, there was a concern that following a planned protest promoted by the operators of the bar, people would congregate at the premises in further contravention of the restraining order. The medical officer of health sought directions.14 Kelly Hale attended. He is noted as self-represented:
Mr. Hale confirmed that he has not complied with the term of the 10 November order requiring him to cooperate with the Sheriff or the Kingston Police Service to facilitate the locking of the property, and that the property remained unlocked. He told the court that he is now living at the premises, as well as operating his business there, and has legally changed his residential address to 642 Progress Avenue. He asserted that the court does not have authority to evict him from what is now his residence as well as his place of business.
Mr. Hale was asked whether he was prepared to comply with the order to cease operating his business at the premises until such time as the court’s 11 November 2021 order was varied, revoked or otherwise ceased to be in effect. He said he was not.15
15The Court made the Order requested:
In agreeing to provide the directions sought by the applicant, I am mindful of their intrusive nature. They authorize the Sheriff and the police to enter the premises without the permission of the respondents, to remove all persons on the premises, and to change the locks, thereby barring the respondents from accessing the premises except as permitted by the court’s orders. However, they are in my view necessary to give effect to the court’s order and to prevent ongoing violation of the law by the respondents and their patrons.16
16Kelly Hale and J.A.K.K. had not yet made submissions contesting the making of the restraining order. As the court had provided, the matter returned to court for that purpose. On this occasion Kelly Hale took the position that both the order made by the medical officer of health under s. 22 of the Health Protection and Promotion Act and the restraining order issued under s. 102 were invalid and should not have been issued. It was submitted that the s. 22 order was an abuse of process and that the conditions precedent to such an order had not been satisfied.17 The court held that there was no abuse. As these reasons have already noted the legislation allows for such an order to be issued without notice.18 The motion for directions was brought on short notice, but Kelly Hale was given the opportunity to, and did, present evidence and make arguments in support of his position. Kelly Hale claimed that the principle of being presumed innocent until found guilty had been violated. The court noted that the right as provided in s. 11(d) of the Charter of Rights and Freedoms reflects a right on those charged with an offence and does not apply to administrative measures taken by a public authority.19
17In respect of the order made pursuant to s. 102, Kelly Hale relied on the s. 1(a) Canadian Bill of Rights:20
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law…
18He referred to this in support of the submission that in requiring his customers to comply with the directive found in O.Reg. 364(2) he would be acting in breach of the protections the clause provided. The court noted that the Canadian Bill of Rights has received little judicial treatment but that, in any event, it was a federal enactment applicable only to federal legislation.21
19The court continued the orders made subject only to a change in who was to be the custodian of the keys to the premises.
The Board's Decision
20To this point we have said nothing about the decision of the Health Services Appeal and Review Board which is the subject of this appeal. When an order is issued by a medical officer of health under s. 22 of the Health Protection and Promotion Act, he or she is required to include the advice that the recipient of the order is entitled to a hearing by the Board:
44 (1) An order by a medical officer of health or a public health inspector under this Act shall inform the person to whom it is directed that the person is entitled to a hearing by the Board if the person mails or delivers to the medical officer of health or public health inspector, as the case requires, and to the Board, within fifteen days after a copy of the order is served on the person, notice in writing requiring a hearing and the person may also require such a hearing.22
21In the decision making the restraining order (in the absence of Kelly Hale) the court noted that no such request had been made.23 When the Court reconvened two days later in response to the request for directions, Kelly Hale advised that a request for a hearing (an appeal) had “now [been] lodged.”24 This was repeated at the subsequent hearing considering the validity of the restraining order. The court referred to the authority of the Board in conducting a hearing:
The respondents have now requested a hearing before the Health Services Appeal and Review Board. The Board may by order confirm, alter or rescind the section 22 order, and for such purposes the Board may substitute its findings for that of the medical officer of health who made the order. Furthermore, section 44(3) provides that the Board, upon application, may grant a stay of the medical officer of health’s order. A right of appeal from the Board’s decision lies to the Divisional Court.25
22The Heath Services Appeal and Review Board conducted its hearing over three days (January 12, 13 and 14, 2022). It heard evidence from the medical officer of health and Kelly Hale. Those representing J.A.K.K. and Kelly Hale (Kelly Hale personally, and a paralegal) proffered as an expert Michael Palmer to deal with information about the differences between disease transmission between vaccinated and unvaccinated persons. His expertise was questioned. The Board determined to hear the evidence but withheld the acceptance of Michael Palmer as a qualified expert until after his evidence had been heard. In the absence of that acceptance in advance of the evidence being called he was withdrawn as a witness by those acting for Kelly Hale and J.A.K.K. In any case the Board went on to find, based on what had been said and the information filed, that Michael Palmer did not have the requisite expertise and that the evidence he was to present was not relevant to the issues it was to determine. Lauraine Wagter-Lesperance was presented by those representing Kelly Hale and J.A.K.K. as an expert in the same area. The Board found that she was not qualified to provide information about the issues it was to decide:
Again, the Appeal Board is not tasked with determining scientific issues such as whether there is a difference between disease transmission among vaccinated and unvaccinated persons.26
23The Board reviewed the applicable legislation and considered at length whether the conditions precedent to the issuance of the Order under s. 22 of the Health Protection and Promotion Act had been met:
(a) that a communicable disease exists or may exist or that there is an immediate risk of an outbreak of a communicable disease in the health unit served by the medical officer of health.
(b) that the communicable disease presents a risk to the health of persons in the health unit served by the medical officer of health; and
(c) that the requirements specified in the order are necessary in order to decrease or eliminate the risk to health presented by the communicable disease.
24After a careful and thorough review, the Board found that the medical officer of health had reasonable and probable grounds to issue the order and confirmed it.
Standard of Review and Analysis
25This appeal to the Divisional Court, from that decision, is made pursuant to s. 46 of the Health Protection and Promotion Act27. The power of the court on such an appeal is stated as:
An appeal under this section may be made on questions of law or fact or both and the court may confirm, alter or rescind the decision of the Board and may exercise all powers of the Board to confirm, alter or rescind the order as the court considers proper, or the court may refer the matter back to the Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.28
26Pursuant to Canada (Minister of Citzenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R.653, judicial appellate standards apply. In accordance with Housen v. Nikolaisen, 2022 SCC 33, [2002] 2 S.C.R. 235, at para. 8, questions of law are reviewed on the standard of correctness. Questions of fact and of mixed fact and law are reviewed on the deferential standard of “palpable and overriding error” (at para. 10). Where a question of law can be extricated from a question of mixed fact and law, that legal question will be reviewed on the correctness standard (at para.36)
27Kelly Hale was given the opportunity to make submissions before this court. His foundational submission was to repeat his reliance on the Canadian Bill of Rights. When it was pointed out that he had already been advised by the judge who dealt with the restraining order and the motion for directions and that the Canadian Bill of Rights was a federal statute and had no application to provincial legislation, he indicated that he, nonetheless, continued to rely on this submission.
28In the days after the hearing Kelly Hale contacted the court advising of a case in British Columbia he wished the court to take into account. He did not provide a citation or title of the case. He advised that it referred to Club 1777 without any further description. Kelly Hale was advised to inform counsel for the Medical Officer of Health of this request. He did so. Counsel objected to the case being considered.
29It transpires that there was a case in “ticket court” before a “judicial judge”, not a judge of the Provincial Court. A judicial judge is described as “just above a justice of the peace” There is no written decision. A transcript can be ordered. In the circumstances, the court determined not to proceed further. We do not see how a case with different facts, in a lower court, in a different province will assist in our consideration of this matter.
Conclusion
30For the reasons above we find there is no merit to this appeal. The Health Services Appeal and Review board did not err in its interpretation and application of s. 22 of the Health Protection and Promotion Act. The appeal is dismissed.
Costs
31As agreed to by the parties, costs to be paid by the Appellants to the Respondent in the amount of $15,000.
Firestone, RSJ.
Lederer, J.
Morgan, J.
Released: December 23, 2022
CITATION: Hale v. Oglaza, 2022 ONSC 7038
DIVISIONAL COURT FILE NO.: DC-22-2700
DATE: 20221223
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(Firestone RSJ., Lederer and Morgan JJ.)
BETWEEN:
KELLY HALE and J.A.K.K. TUESDAYS SPORTS PUB INC.
Appellants
– and –
DR. PIOTR OGLAZA, MEDICAL OFFICER OF HEALTH KINGSTON, FRONTENAC AND LENNOX and ADDINGTON PUBLIC HEALTH
Respondents
REASONS FOR DECISION
By the Court.
Released: December 23, 2022
Footnotes
- R.S.O. 1990, c. H. 7
- S.O. 2020, c. 17
- O. Reg. 364/20 Schedule 1 at s. 2(2.1)
- Ibid at s. 3.2 and Schedule 2 s. 1(2)
- Ibid s. 3.3
- Ibid s. 2(3) and Schedule 2 s. 1(1)
- Ibid s. 4(1) and Schedule 2 s. 1(1) which excludes the application of this requirement where “the patron enters the area to place, pick up or pay for a takeout order”.
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., 2021 ONSC 7473 at para. 12
- Ibid at paras. 17-21
- Ibid at par. 13
- Ibid at paras. 33 and 34
- Rule 40.02 (1): An interlocutory injunction or mandatory order may be granted on motion without notice for a period not exceeding ten days.
- Ibid at para. 45
- Motion for Directions: 60.17 Where a question arises in relation to the measures to be taken by a sheriff in carrying out an order, writ of execution or notice of garnishment, the sheriff or any interested person may make a motion for directions, (a) to the judge or officer who made the original order, at any place; (b) to a judge or officer who had jurisdiction to make the original order, in the sheriff’s county, despite rule 37.03 (where motions to be brought); or (c) where an appeal has been taken from the original order, to a judge of the court to which the appeal has been taken, at any place.
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., 2021 ONSC 7515 at paras. 13 and 14
- Ibid at para. 17 and see para. 5 for greater detail.
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., 2021 ONSC 7701 at para. 9
- Ibid at para. 11
- Ibid at para. 12
- S.C. 1960, c. 44
- Ibid at para. 20
- Health Protection and Promotion Act, supra (fn. 1) s. 44(1)
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., supra (fn. 7) at para. 16
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., supra (fn. 14) at para. 12
- Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., supra (fn.16) at para. 15
- Kelly Hale and J.A.K.K. Tuesdays Sports Pub. Inc. v Dr. Piotr Oglaza, Medical Officer of Health, Kingston, Frontenac and Lennox & Addington Public Health (Health Services Appeal and Review Board File # 21-HPP-0073) at para. 39 (Caselines A538)
- Appeal to court: 46 (1) Any party to the proceedings before the Board under this Act may appeal from its decision or order to the Divisional Court in accordance with the rules of court.
- Health Protection and Promotion Act, supra (fn. 1) s. 46