Toronto (City) v. 961557 Ontario Ltd., 2023 ONCJ 159

DATE : April 13, 2023

ONTARIO COURT OF JUSTICE Toronto Region

B E T W E E N:

HIS MAJESTY THE KING

v.

961557 ONTARIO LTD., OPERATING AS “THE CROOKED CUE”

REASONS FOR JUDGMENT

Trial dates: August 9, 10, September 8, October 4, 28, November 17, December 12 and 19, 2022 Judgment: April 13, 2023

Counsel: Ms. S. Kym, Prosecutor, City of Toronto Mr. A. Suboch, Defence counsel

M. ROSS HENDRIKS, J.P. :-

BACKGROUND:

[1] The Information before me sworn on September 11, 2020, charged the defendant, 961557 Ontario Ltd., operating as “The Crooked Cue” (hereinafter the “The Crooked Cue”), with failing to comply with an order made during a declared emergency, under s.7.0.11(1)(c) of the Emergency Management and Civil Protection Act ("EMPCA"), Order Under Subsection 7.0.2(4) of the Act - Stage 2 Closures, O.Reg. 263/20 (Exhibit 3).

[2] This Information was sworn remotely under s. 23 of the Provincial Offences Act, R.S.O. 1990, c.P.33, by Waheed Bazger, a Public Health Inspector with Toronto Public Health. Both this Information and Summons returnable on September 25, 2020 were confirmed by a Justice of the Peace. The jurat is proper, and the offence alleged is a strict liability offence.

[3] This matter commenced before a different justice of the peace, who considered a motion regarding redacted documents, by comparing them with the originals, and then who gave a decision. It is my information that because my colleague had viewed the unredacted documents, it was determined that a different justice of the peace should hear this matter. I asked the parties at the outset if they consented to me presiding, and they did so on the record.

[4] The defendant’s premises is located at 3056 Bloor St. West, Toronto, on the second floor, where it has pool tables and a bar at the back of the location, and a restaurant with a liquor licence (Exhibits 2(D) and (E)) facing the south side to Bloor Street West, Toronto.

[5] During the COVID-19 pandemic, the defendant submits that it closed off the pool table and bar area of the premises, which is covered by an intractable, solid roof, and operated the restaurant portion of its business, facing Bloor Street West, where it has a retractable roof, and what defence counsel terms as a “floor-to-ceiling” front window.

PROSECUTION’S EVIDENCE:

[6] The Prosecutor called two witnesses, Waheed Bazger and Sylvanus Thompson.

Officer Waheed Bazger:

[7] Waheed Bazger testified that he is currently a supervisor overseeing vaccines for preventable diseases with Toronto Public Health. At the time he swore to this Information, he was a Public Health Inspector and a Provincial Offences Officer, and a Supervisor with the Vaccine Preventable diseases section of Toronto Public Health.

[8] On June 27, 2020, Officer Bazger attended the defendant’s premises at 7:00 pm, along with Municipal Licensing and Standards (“MLS”) officers for an inspection of The Crooked Cue, located at 3056 Bloor St. West, Toronto. This was a result of a complaint received by Toronto Public Health. Officer Bazger's manager, Paul DaSilva, gave him this matter to investigate, since Officer Bazger was the inspector working that day.

[9] Officer Bazger described the premises as being a restaurant that also has a pool table and bar area, and the restaurant has a dine-in option. He stated that patrons entered the premises through the street level on Bloor Street West, climbed a staircase which had a solid roof, and entered the premises on the second floor. He testified that the premises was divided into two sections, east and west, both used for food preparation and consumption as well as beverages. He identified the certified copy of the Corporate Profile Report of the numbered company that operates as The Crooked Cue, dated 2020-09-01 (Exhibit 1).

[10] He met the Manager of the premises, Jennifer Stark, and explained why he was there. Officer Bazger testified that the east and west sections of the Crooked Cue are used for food preparation and consumption of food and beverages. It has two large windows on each side, facing Bloor St. West, and each side has a retractable roof, that covered a partial portion of the ceiling. He took a series of photographs at the time, which have been entered as Exhibits 2(A) to (G).

[11] In photograph 2A and from his testimony about it, it is clear that the defendant has a large window facing Bloor Street West, which was open at the time of his inspection, and a closed window on either side of it. In this photograph, two patrons are seated at a table, and he stated that they were being served. He also confirmed that the retractable roof was open at the time of his inspection.

[12] He observed patrons being served food, at individual tables, and he stated that some patrons were under the roofed section of the premises, where there are three television sets, and some patrons were seated under the unroofed section (Exhibits 2B and 2C). He did not measure the premises nor did he measure the retractable roof area. He described the area where the television sets were as having enough roof “to cover the seated area” of the televisions, and said that there were three or four patrons in this area. He indicated that the premises was open for business and that individual clients were providing information, for contact tracing purposes (Exhibit 2C).

[13] He also took a photograph of the defendant's Liquor Licence. At first, he said that it had been issued on December 31, 2018, but then he changed his testimony to state that it was issued on July 21, 2019 (Exhibit 2D). He described it in detail in his evidence. The licensed area indicates that it is indoor, and the North East Centre section has a capacity of 63 clients. The second floor North West section has a capacity of 130 clients. The second floor South Centre and East Centre has a capacity of 143 clients, and finally, the second floor West Centre has 159 client capacity. He stated that these four descriptions captured the second floor premises.

[14] Officer Bazger testified that in photograph 2F, he observed another table with patrons under the roofed section. He also observed a number of patrons under the area where the roof had been retracted, and that their tables had umbrellas on them. He confirmed that the roof was open in this area. He then described photograph 2G, in which two patrons were seated under an umbrella, another four patrons were sitting under another umbrella, and both of these tables were under a roofed section, but another table with an umbrella was under the open area, near the television.

[15] Officer Bazger testified that he estimated that one-third of the establishment was under the retractable roof, and that two-thirds was covered by the hard roof, although he conceded that he did not take measurements, and only attended this premises once.

[16] Officer Bazger testified that the Regulation (Exhibit 3) was in effect on the date of the alleged offence, since it ran from June 26, 2020 to July 1, 2020 under the EMPCA. This Regulation refers to “Stage 2 Closures”. He read out the following passage from p. 3 of this Regulation at the request of the Prosecutor:

SCHEDULE 2

STAGE 2 BUSINESSES AND PLACES

Food and drink

Restaurants, bars etc.

1.(1) Restaurants, bars, food trucks and other food or drink establishments may open if they comply with the following conditions:

1. Patrons must be served, i. through take-out, drive-through or delivery service, or ii. at an outdoor dining area that is, in or adjacent to the place of business, and configured to ensure physical distancing of at least two metres between patrons seated at different tables.

2. Public access to any indoor portions of the business must be limited to food pickup, payment, washroom access, access required to get to the outdoor dining area or access that is otherwise required for the purposes of health and safety.

3. No dancing or singing may be permitted in the outdoor dining areas.

(2) For greater certainty, a restaurant, bar food truck or other food or drink establishment that is in compliance with the conditions set out in subsection (1) may open in any business or place that is otherwise permitted to open under this Order.

[17] Officer Bazger testified that he has conducted inspections in his role for about 10 years, including restaurants and a variety of premises, and he estimates that he has performed more than 5000 investigations and inspections. He estimates that about 10 percent of these inspections were of restaurants that had patios. In his experience, most patios are outside the premises. He has some limited experience with patios found on the roofs of the restaurants and testified that they are in the downtown core area.

[18] When asked if The Crooked Cue qualified as an outdoor dining place, he replied that, “based on my experience, I didn’t think it was.” He added that patios are usually outside and adjacent to the restaurant, typically, in front of it. Some patios are on the roof, especially in the downtown core, and he has encountered that, too.

[19] When he conducted his inspection on June 27, 2020 he did not think this premises qualified as an outdoor dining space, because the majority of patios are outside of the building, either on the street in front, or in the back, and the patios he did find on roofs did not have any roofed areas. Based on his observations, this premises was two-thirds covered by a non-retractable roof.

[20] The Prosecutor played the video of this premises (Exhibit 5), and asked him what this premises would have needed to qualify as an outdoor dining area on that date? He replied that the entire dining room should be outdoors to qualify as an outdoor dining area. In this case, at the time of his inspection, two-thirds of the dining area had a roof, and only one-third had a retractable roof area. The retractable roof was open at the time of his inspection.

[21] Finally, when asked in chief if a patio licence had been provided to him, he replied that no one provided him with a patio licence.

[22] At no time during his testimony, did Officer Bazger speak of serving any type of ticket or order upon The Crooked Cue.

[23] During cross-examination, Officer Bazger read out the charging section on the Summons, which was before me. Defence counsel asked if the defendant was charged under s. 7.0.11(1)(c) of the Act and not the Regulation, and Officer Bazger indicated that was correct. (See: Transcript, August 9, 2022, at p.52).

[24] During cross-examination, Officer Bazger testified that he has not been trained in the physics of airborne droplet transmission of COVID-19. He also admitted that he has not been trained in sufficient free airflow. The Prosecutor objected, indicating that the legislation did not mention free airflow.

[25] He also agreed that initially, all restaurants were not permitted to be open, whether or not they had an outdoor dining area, starting "let's say April, 2020", and that the re-opening was graduated (Ibid, at p. 54).

[26] He also admitted that he was not an expert in outdoor dining areas.

[27] He also agreed with defence counsel that the legislation does not mention “patio” within the Regulation.

[28] Officer Bazger agreed with defence counsel that he had determined this premises was not an outdoor dining area, but that it could be in or adjacent, as stated in the legislation.

[29] He also agreed with defence counsel that this premises could be an outdoor dining area surrounded by four walls with no roof.

[30] Officer Bazger also agreed with defence counsel that the premises did not have to be a licensed patio to be open.

[31] Officer Bazger testified in cross-examination that he only attended at The Crooked Cue once inside, and that his second visit was to serve the Summons to Mr. Pappas, the owner, on the street level.

[32] When asked during cross-examination if he was aware of the seating estimation when he attended, he replied, yes. He knew it was thirty percent. He was also aware that the restaurant did not allow patrons past the area where the roof retracted, replying, “okay”, to this question.

[33] When asked if he only saw patrons where the roof retracted, he replied, “not entirely.” He said that some patrons were under the roof section, and then he described the “slight overhang”. When asked if this meant in the area with the ability to retract the roof, he replied, “correct”.

[34] When asked if it was a reasonable assumption that the patrons sitting in the retractable roof area, at tables with umbrellas, had those umbrellas to protect them from sunlight, he agreed that this was a reasonable assumption.

[35] He also testified that airflow measurements were not taken during his inspection.

[36] When asked if he had received any guidance as to what was or was not an outdoor dining area? He replied, “not prior to the investigation itself, but before the decision to charge.” He consulted with his manager, Paul Da Silva.

[37] He did not recall exactly what his manager said to him, but he said that before they lay charges, it is customary to present what you are charging with, “like a second opinion, to determine if I’m on the right trajectory.” He did not make notes of this conversation.

[38] Officer Bazger testified that, "based on the evidence that I had collected, based on my observations, we made okay, I presented what they were and you know we decided that this did not constitute an outdoor dining area and as a result, I proceeded laying the charge." (See: Transcript, August 9, 2022, at p.64).

[39] When asked if he had discussed with his manager how many sides needed to be open to constitute an outdoor dining area, he could not recall it.

[40] Officer Bazger agreed that if the wind was blowing from the south, the large window facing Bloor Street West would have allowed more air into the premises.

[41] When asked if there is any definition in the Regulation of “outdoor dining area”, he replied there is not. (See: Transcript, August 9, 2022, at p. 70).

[42] When asked if an outdoor dining area could be something other than a patio, he responded, “the majority are patios”. He agreed it could be a non-patio, or something different from a patio, that requires a liquor licence.

[43] When asked if there is any such thing as an outdoor dining licence, he replied, “no”. (See: Transcript, August 9, 2022, at p.71).

[44] When asked if it did not state that the premise needed to be a licensed patio to be opened, he responded "correct". When asked if he would agree that an outdoor dining area could be conceivably something different from a patio, he replied that the majority of outdoor dining areas are patios with restaurants, but agreed with defence counsel that it could be. He was aware of a patio licence issued by the City of Toronto, but conceded that he is unaware of an outdoor dining licence (Ibid, at pp.70 to 71.)

[45] When asked if what is an outdoor dining area is entirely subjective, he replied, “correct”. (Ibid, at p..70.)

[46] He agreed that The Crooked Cue’s retractable roof is “unique”, as described by defence counsel.

[47] He was asked if he agreed that it was not unreasonable to conclude that The Crooked Cue under the retractable roof and with its floor-to-ceiling window could be an outdoor dining area, that this was a reasonable possibility? He replied, “yes, correct.” (Ibid, at p.71.)

[48] Defence counsel showed Officer Bazger a City of Toronto document entitled, “Enclosed Public Places” (Exhibit 4). It states:

Enclosed Public Places

Smoking and vaping is not permitted in enclosed public places. An “enclosed public place” means the inside of any place, building, structure or vehicle (or any part of them) that is covered by a roof and where the public is ordinarily invited or has access, regardless of whether a fee is charged for entry.

[49] Officer Bazger saw this definition, and was asked if The Crooked Cue was not an enclosed public place where its roof was open? He replied that parts of The Crooked Cue were covered by a roof.

[50] When asked if the Regulation contemplated some aspects of a building could be covered, he re-read it, and agreed that a portion can be covered for access. He added, “depending on where you are in the premises, it may be covered.”

[51] When Officer Bazger was asked if he knew Maria Schultz, he replied, “no”. Defence counsel cited the Rule in Browne v. Dunn, and asked if he was aware of a document produced June 17, 2020, which was Ms. Schultz's personal opinion of what constitutes an outdoor dining area. He replied that was “correct”, and said that he didn’t rely on this and he was not aware of her within Public Health.

[52] When asked if he knew Mike Major, he replied that he did not know him, either. He added, it was the first time hearing the name.

[53] When asked if Toronto Public Health decided to charge individuals or businesses, if it was a factor if they had received an immediate complaint, he replied, “not that I recall”.

[54] When asked if he knew Mary Campbell, he said it was the first time he had heard her name. He stated that he never consulted with her.

[55] When asked if The Crooked Cue was the first premises he had inspected a restaurant with a retractable roof, he agreed it was.

[56] When asked if no objective guidance had been given to him regarding what was an outdoor dining area, he said, “no”.

[57] He was shown photograph 2(A), which he had taken from the ground floor, looking at the premises. He was asked if he could see through the roof, and observe the trees in the background, and he confirmed he could see them.

[58] Officer Bazger confirmed in his testimony that he knew that The Crooked Cue was not serving patrons in the pool hall area, where the roof does not retract.

[59] Officer Bazger agreed that he was aware that the Regulation permitted the kitchen, bathroom and stairwell to be covered with a roof.

[60] He was asked if he had ever attended "Joey" or "The Keg" both at Sherway Gardens and inspected their patios? He replied that he did not recall. Defence counsel submitted that they have fixed roofs and three sides closed, and Officer Bazger said he did not know how to respond to this question. Defence counsel said Mr. Pappas will testify that their premises is viewed as having patios.

[61] When asked about the significance of having a liquor licence for a patio, Officer Bazger replied that he does not enforce liquor licenses and agreed that it was irrelevant. (See: Transcript, August 9, 2022, at pp. 86 to 87).

[62] When asked if he and the police officers and municipal inspectors were all wearing masks when they entered the premises for the inspection, he replied, “yes”, but later on in his testimony, he replied he could not remember if the other officers wore masks. He was asked if failing to do so would contravene the legislation, and he replied, “yes”.

[63] When shown Exhibit 5, the video of the inspection on June 27, 2020, based on the defendant's security footage, and asked if he was the man wearing the blue shirt, he initially replied that he did not know, and could not tell. When advised that Mr. Pappas will identify you as the man in the blue shirt, he said, “I can’t recall.” He agreed that the officers were not wearing masks, nor was the man in the blue shirt. The servers were wearing masks. Ultimately, he conceded that the man in the blue shirt was himself. This was the initial and only interior visit of the defendant's premises and no charges were laid at this time.

[64] When asked if he did not wear a mask because he was uncertain when you were in or out of the outdoor dining area, he said, “that may have played a role in my decision.”

[65] Officer Bazger did not lay a charge when he left The Crooked Cue, but discussed the matter with his supervisors.

[66] When asked if he would have laid the charge immediately if he saw rat excrement on the floor, he responded that many factors are involved in laying charges for a regular food safety violation, but that this situation was not like that, and agreed it was a novel situation.

[67] In Officer Bazger's testimony in Re-Direct, at p.99-100, he was asked, "...in cross you had agreed that portions of the second floor may be classified as outdoors, did I understand that correctly?" His response was, "You did, correct." He added that he was referring to the area directly under the retractable roof.

Mr. Sylvanus Thompson:

[68] Mr. Sylvanus Thompson was the second witness for the Prosecutor.

[69] He is currently the CEO of Doctor T International Food Safety Consulting Services, his own consulting firm, and was previously the Associate Director with Toronto Public Health. He spent more than 20 years with the City of Toronto, and 10 years serving as Associate Director.

[70] In 2020, he testified that he was the Associate Director of Toronto Public Health, and in this role, he was responsible for the food safety program. He developed guidelines, standards, and was in charge of human resources.

[71] During the COVID-19 outbreak, many staff were transferred internally, but he was one of the ones left behind at Toronto Public Health to conduct visits and meetings with the food industry.

[72] He did the site visit himself at The Crooked Cue on Bloor Street, to see if it was in compliance with existing requirements for outdoor dining. He believes this took place on June 18, 2020, and then said, “I think it was in June.” He added, it was “just before outdoor dining commencing.” (See: Transcript, August 9, 2022, at p.104).

[73] When asked how he conducted this site visit, he said that the establishment was closed, but he could see the patio from the back and from the front street level. He added, “I had a clear view of the patio itself.”

[74] During this site visit, he was asked if it qualified as an outdoor dining area, and he responded, “no”. He said that an outdoor dining area was a patio with a roof and two sides open, and that this patio only had one side open. At the time, if a premises had a roof, it must have at least two sides open.

[75] He described his visit as not being an inspection, just a site visit, to determine if the establishment met the requirements for outdoor dining.

[76] When asked if this determination had been communicated to the defendant, he replied yes, “I made a call”, and that he left a voice mail to say he did an inspection and in his "opinion", the establishment didn’t meet the requirements for outdoor dining. The next morning, The Crooked Cue returned his call. He reiterated his comments, and he believed he was speaking to Sam Pappas. (Ibid, at pp 104-105).

[77] He said that the caller did not dispute the findings, it was clearly only open on one side, but did not agree with the requirement to have two open sides. After this call, he testified that he was copied on an email to the City of Toronto from Sam Pappas, dated June 19, 2020 (Exhibit 6).

[78] In this email, Mr. Pappas stated:

Sylvanus has just informed me that I do not meet the requirements because I do not not [sic] have two open walls in his opinion. This is classic government in action. My restaurant can achieve the conditions that are required to open. Lots of fresh air and loads of safe spacing. Someone has to explain to me why I will not be able to open. I have been totally compliant thus far. I am going BROKE!! I have people calling everyday asking me for payment. I walk into grocery stores, Ikea, Home depot Dollar stores. All inside, touch points everywhere, workers not wearing masks. People not social distancing but that’s all ok. I have come up with a safe plan to open. Cookie cutter rules do not work in this situation. I’m not asking for much. I want to open the front ½ of my place that is under the roof with limited seating. I have already been told that I can open by my BIA and that came from the city. I have operated my business for 30 years. Employed thousands of people, paid my taxes and been a positive contributor to the community. I have never complained in all years of business. If I’m going to be denied tell me now because I’m going to go nuts and use every means at my disposal to get open. I feel like this harassment with no base in science or fact. I would like an answer from someone by the end of the day.

[79] Mr. Thompson further testified in chief that he had been assisted in developing the "guidance for the food industry" document that included a section on patios and indicated some requirements. One of those requirements was to have at least two open sides. He described it as follows (Transcript, August 9, 2022 at p. 107):

...there was a specific section relating to patios, right with a number of requirements, and one of the requirements was that for them to qualify as an outdoor dining area they had to have at least two open sides, sides completely without anything, if the patio is covered. And in that document they - that document was clearly communicated to the industry, it was posted on the City's website, it was sent to a Business Association, it was sent to the Restaurant Associations, and to share as best as we could with the general public. So, that was the guidance for the industry prior to the reopening, so therefore everyone would get a chance to know what the requirements were.

[80] Defence counsel objected to this question and answer, and the prosecutor retracted and rephrased the question. In any event, Mr. Thompson did not identify this guidance for the food industry document specifically as an exhibit at this trial, was any evidence offered by him to prove it was posted on the City's website.

[81] When asked, despite the public education, did owners of establishments communicate confusion to you? He replied, “I’m not sure about confusion, but many owners and even the public asked for clarification of the requirements.” (Transcript, August 9, 2022, at p.108).

[82] Mr. Thompson testified that he could not recall exactly what was in this guidance document, but it did state that retractable roofs were not considered an open side and that this was communicated after his site visit, but he did not indicate how this was done. He testified that the City of Toronto, on or about June 27, 2020, did not consider retractable roofs to be an open side, even if the roof was open. (Ibid, at p.109.)

[83] When he was asked on what authority they concluded that a site needed to have two open sides to be an outdoor dining area, he said that the Medical Officer of Health had the authority to give direction to the industry based on the Regulation. The Medical Officer of Health can give directions and guidance, and that same must be adhered to.

[84] Defence counsel became irate, stating that he had asked for all documents in disclosure, and that nothing had been produced by the Chief Medical Officer of Health. This was the first time he had heard about it. At first, the Prosecutor said that the redacted version of this document, which had been determined to be appropriate by her colleague on the disclosure motion, had been provided to him. I asked the Prosecutor to confirm that the redacted document, previously given to defence counsel, was in fact the same document that had informed Mr. Thompson of the guidance given to the restaurant industry? She reviewed her notes, off the record for a few minutes, and responded to me that they are not the same document. When asked what document Mr. Thompson was referring to, she responded, “I don’t know.” Upon hearing this reply, I directed defence counsel to proceed with his question to Mr. Thompson about his conversations with the Chief Medical Officer of Health during cross-examination.

[85] Finally, the Prosecutor asked Mr. Thompson about the Regulation (Exhibit 3), s.4(2), which Mr. Thompson read out, which states (Ibid, at p.118):

(2) The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

[86] Mr. Thompson stated that he could rely on the directions given to him for industry to follow.

[87] In cross-examination, he testified that as part of his certified public inspector training, he had received training in airborne diseases, and how they are spread. He receives regular training.

[88] He was shown a document, dated June 19, 2020, that he sent to Alok Sharma (Exhibit 7). This email states as follows, verbatim:

Hi Alok

Just keeping you in the loop with this one.

In an effort to ensure a more consistent and objective approach in determining whether or not a patio meets the public health requirements and objective of facilitating free air flow, the following changes were made in the Guidance document:

Restaurants may have previously installed patio coverings such as canopies, tents, awnings, and umbrellas, but the following conditions must met:

1. The entire patio must remain fully open to the air on at least two (2) sides to allow adequate air circulation.

2. Except for umbrellas, the covering should be no less than a height of 3 meters/10 feet from ground level

This change, which provides more flexibility, and others based on new evidence or provincial directives will be communicated to the industry through various channels.

A site visit was done to the Crooked Cue located at 3056 Bloor St West on June 18, 2020. The observation determined that the section being proposed for use is an enclosed area that does not meet the public health requirements for open dining. This decision was communicated to the owner today. His response is below.

Regards

Sylvanus

[89] In cross-examination, Mr. Thompson was asked to define “adequate air circulation”, as noted in this email, and he replied that, “I don’t have a specific definition for adequate air circulation.” (See: Transcript, August 9, 2022, at p.123).

[90] When asked if a restaurant cannot know if it meets this standard, he disagreed, and said it would meet this requirement if it had two open sides, since this would be adequate.

[91] When then asked if two open sides could include one roof and one side, he responded, “…an open roof and an open side would not have met the requirement at the time the requirement was in place." (Transcript, August 9, 2022, at p.124.)

[92] Mr. Thompson testified that the City of Toronto was authorized to make requirements for industry based on available evidence. When asked what the source was for this evidence, he responded the World Health Organization and the Center for Disease Control.

[93] He said that the potential for the spread of COVID-19 increases in enclosed spaces, and adequate ventilation is required. They acted in consultation with their other health units, and determined that two open sides provided sufficient ventilation. This standard was communicated to the industry.

[94] Mr. Thompson testified that they did not pursue standards based on calculations involving cubic metres of air divided by time, as posed by defence counsel, stating that, “we wanted something easily understood.” (Ibid, at p.129.)

[95] When asked if the SkyDome, aka the Rogers Centre, with a retractable roof, would constitute an outdoor dining area, he responded that he is not familiar with it. When asked for his view of it when the roof is completely retracted, he said he has not been there.

[96] When asked if he was aware that about five days after The Crooked Cue was charged, what constituted an outdoor dining area was codified, he replied that he was aware that a retractable roof was included as an open side when fully opened.

[97] When asked if the City of Toronto ever considered a quadangle courtyard, he said he did not recall looking at that scenario.

[98] Mr. Thompson was asked about a document sent on June 19, 2020, which he confirmed he sent to Mike Major (Exhibit 8). It states as follows:

Hi Mike

I just had a discussion with Dr Mowat and it was decided that based on further assessment of the risk a bit more flexibility can be exercised with respect to the number of open sides. Having two open sides, rather than three, should meet the desired objective of free air flow.

Even with this change, the Crooked Cue would not satisfy the public health requirements. It has a retractable roof, which is commendable, but that is not believed to be sufficient to ensure free air flow.

I informed Mr. Pappas that the establishment did not meet the public health requirements based on my observation and his description of facility.

Regards

Sylvanus

[99] When asked if Dr. Mowat was relied upon for the two sides is sufficient issue, he replied, "no" but stated that he did give input. Dr. Mowat conducted a risk assessment literature review, but this list was not provided to the City of Toronto. (Transcript, August 9, 2022, p133.)

[100] Defence counsel was again irritated that no disclosure had been provided to him regarding Dr. Mowat’s role and asserted that this prejudiced the defence.

[101] When asked why Dr. Mowat was chosen, Mr. Thompson did not know the specific reason why he was chosen but stated that he was the former Chief Medical Officer of Health for the Province of Ontario.

[102] When asked why the City appeared to want three open sides, but then changed it to two open sides, Mr. Thompson said that after further assessment, the less restrictive measure was adopted, and that the three open sides suggestion was never implemented.

[103] Mr. Thompson testified that Dr. Mowat was aware of the retractable roof issue, and that every guidance document the City did was given to Dr. Mowat prior to its issuance.

[104] When Mr. Thompson was asked to show defence counsel any document shown to Dr. Mowat regarding retractable roofs, he replied that he was not in Dr. Mowat's office. (Ibid, at p.137.)

[105] When asked about the charging document against The Crooked Cue, and the fact that there is no reference to “patio”, he replied that he could not recall if the word “patio” was included in the legislation. (Ibid, at p.137.)

[106] When he was referred to the Regulation (Exhibit 3), Schedule 2, s.1.(1)(ii), while it refers to an “outdoor dining area”, he agreed that it makes no reference made to a “patio”. (Ibid, at p.138.)

[107] When he was asked if he was aware that the legislation was amended five days after The Crooked Cue was charged, to specifically allow it to be open, he replied, “no, I didn’t know that.” (Ibid, at p.139.)

[108] When asked if he agreed with defence counsel that it was not unreasonable if the space is uncovered that it could be considered to be an outdoor dining area, he responded that he did not agree, because the guidance document described an outdoor dining area. (Ibid, at p.139.)

[109] When asked if it was not unreasonable that an area without a roof could be considered to be an outdoor dining area, he agreed that this was a reasonable possibility. The exchange between defence counsel and Mr. Thompson was telling (Ibid at p.140):

Q. Sir, I'll suggest to you that the Crooked Cue when it's roof was open and the front window, floor to ceiling windows were opened and you feel the direct sun on your body if you were under the roof and it was sunny outside, would you agree with me?

A. I've never been inside the Crooked Cue so I'm not aware of exactly what would happen if the roof was opened.

[110] When directed to an email dated June 19, 2020, at 10:56 pm, he confirmed that he sent this email to Amanda Sinclair, and the email chain that followed (Exhibit 9). In this chain, he has exchanged messages with Marcia Stoltz. He testified that Ms. Stoltz is not from Toronto Public Health. When asked why he wanted her to comment on a Toronto Public Health matter, he replied that she was at the meeting, and he wanted her thoughts based on her knowledge of The Crooked Cue. As part of this email chain, Ms. Stoltz stated in her reply, dated June 17, 2020, 5:07 pm (phone number redacted by court for privacy reasons):

Subject: RE: Crooked Cue

Sylvanus,

If by thoughts you are looking for a personal opinion, this will be considered indoor dining space. I may live in the neighbourhood and I may have been there. Otherwise, please keep us updated on your decision from a public health perspective.

Thanks

Marcia

Marcia Stoltz - Manager, Vehicle for Hire

416-XXX-XXXX

[111] When asked if he knew of her professional qualifications, he responded that she would have been a lawyer from the City’s Legal Department (Transcript, August 9, 2022, at .p.144).

[112] As noted in this email exchange, it was apparent that Ms. Stoltz’s personal opinion was that The Crooked Cue was an indoor dining space, even though he denied seeking her personal opinion.

[113] When asked about the City of Toronto’s document, “Enclosed Public Places”, at Exhibit 4, Mr. Thompson disagreed that The Crooked Cue was a public place, since it was classified as a restaurant.

[114] No Re-Direct examination was sought.

DEFENDANT’S EVIDENCE:

[115] Defence counsel called six witnesses, Sam Pappas, Tim Thomson, Michael O’Brien, Tracey Pappas, Daria Agius and Jennifer Stark.

Mr. Sam Pappas:

[116] Mr. Sam Pappas testified that he is the owner of the defendant company, known as “The Crooked Cue.” It was established in January, 1992. His family has owned this building since 1954, when it was originally a bowling alley. It was a business originally run by his grandfather, then his father, and he took it over in 1992. Over the last 30 years, he said that the business has employed over 1500 people.

[117] Mr. Pappas testified that a major renovation took place from 2015 to 2016, which cost over $2 million. This renovation included updating, installing the retractable roof and the removable wall on the front of the premises.

[118] The Crooked Cue operates seven days a week, except December 24th and 25th, and they have a quarter million people go through The Crooked Cue every year. He indicated that they have never faced a charge, nor any issues with their employees, or judgments against them. They have never needed to call the police.

[119] Mr. Pappas testified that they are “very aware of public safety, employee safety.” He added, “we try to keep up with every standard that the government comes up with and I think we’ve been pretty successful doing that over 30 years” (Transcript, October 28, 2022, at p.7).

[120] Mr. Pappas testified that The Crooked Cue supports every local charity, and assists fundraisers by giving the space away for free, and offering complimentary food and soft drinks.

[121] He testified that The Crooked Cue faces south, onto Bloor Street West. It is made up of approximately 12,000 square feet, 100 feet wide across the front, and 120 feet in depth. There is a wall down the middle, so it is split evenly into 6,000 square foot sections. In both sections, the front of the building is mostly restaurant and bar seating, including food consumption and watching sports. The back half of the building is made up of pool tables, and occasionally some ping pong. It has a retractable roof on each side which is a 20 by 50 foot skylight that fully retracts. The front windows on each side facing Bloor Street West have an opening of almost 11 feet by 10 feet.

[122] There are washrooms on each side of The Crooked Cue. On the east side, they are located in the northeast corner, and are unisex. On the west side, they are divided between male and female washrooms, and are found on the wall, in the middle of the premises.

[123] The kitchen of The Crooked Cue is on the west side at the very back of the room.

[124] The retractable roof is a glass structure, which he described as being “a bunch of skylights” that are put together in an aluminium train, and move on a sealed rail. When Mr. Pappas turns on the motor, within about 5 minutes, it can travel back 50 feet, since the total roof is about 120 feet long. It comes to rest around the 100 foot mark, when totally retracted. It is about 20 feet wide. When not retracted, Mr. Pappas said that it just sits on top of the roof.

[125] The front windows facing Bloor Street West are actually patio doors, and the maximum size allowable. They are 11 feet by 10 feet high, so the opening is 120 square feet. The manufacturer from whom he bought them referred to them as patio doors.

[126] Mr. Pappas testified that on the day The Crooked Cue was charged, June 27, 2020, the patrons were not permitted to go past any area where the roof did not retract. They were only permitted to go back there to use the washroom, and they did not permit them to use the unisex bathroom because it was further back in a smaller space. Since they were operating at a low capacity, they only used the male and female bathrooms in order to separate people. Only one person was permitted in a bathroom at a time.

[127] The Crooked Cue has two bars. There is a bar on the east side, located against the middle wall, with one bartender. The bar on the west side had a larger island type of bar. Only one employee was working each bar, again to limit contact.

[128] The seats were removed from both bar areas, and the patrons were not permitted to stand near them, only serving staff could approach them.

[129] Because The Crooked Cue is on the second floor, there is a flight of stairs to climb from Bloor Street West, with a landing area, and then another smaller set of stairs where the hostess and reception stands are. This was also true in June, 2020.

[130] Mr. Pappas testified that all businesses were shut down from March 16 to June 25, 2020, by provincial decree, because of COVID-19.

[131] In early June, Mr. Pappas said that with the numbers dropping, they began receiving communication from the City of Toronto and the Province of Ontario that a re-opening was anticipated for outdoor dining and what to do to prepare. As a result, he testified that they began to prepare The Crooked Cue for reopening.

[132] Mr. Pappas identified a document from the City of Toronto, dated June 5, 2020 (Exhibit 11), entitled, “City of Toronto advises two large business sectors, restaurants and personal service settings - to prepare for safe reopening”.

[133] Mr. Pappas testified that they reviewed every document in order to reopen safely, because this was their livelihood, and they employed 55 people and needed to generate income.

[134] Mr. Pappas indicated that Exhibit 11 advised that the City staff would be communicating with impacted business owners over the next week, either individually or through their local Business Improvement Associations (“BIAs”). He further indicated that they started communicating right away with Lianna Misador, from the Kingsway BIA.

[135] Mr. Pappas read from Exhibit 11, which stated:

Business owners are advised to begin preparing for reopening, but are not permitted to begin operating until the revised order under the Emergency Management and Civil Protection Act is announced by the Government of Ontario and comes into effect.

[136] Mr. Pappas understood that the criteria to reopen given by the provincial government was that it had to be outdoor dining in or adjacent of a place of business. No definition of same was provided, however.

[137] Mr. Pappas testified that they did their own research, and formed the belief that what was intended by it was that the public would breathe outdoor air and not be in an enclosed space where the air is recirculated.

[138] Mr. Pappas was referred to Exhibit 4, a document from the City of Toronto, entitled, “COVID-19…”, and describes the steps to reopening. Under the paragraph regarding enclosed public places, it states:

Smoking and vaping is not permitted in enclosed public places. An “enclosed public place” means the inside of any place, building, structure or vehicle, or any part of them that is covered by a roof, and where the public is ordinarily invited or has access regardless of where a fee is charged for entry.

[139] Mr. Pappas agreed that The Crooked Cue is a place where the public is ordinarily invited or has access. The only restrictions to access are age-based or showing visible signs of intoxication.

[140] In June of 2020, the roof would have been open all day, and only closed if there was inclement weather.

[141] During this time, if the weather caused them to close the roof, The Crooked Cue would close and not allow in patrons. Mr. Pappas testified that when the roof was closed, he considered it to be an indoor space, but when the roof and windows were open, he considered it to be an outdoor space.

[142] If there were patrons inside and the weather changed, they would close the roof, stop service, hand everyone their bills, and ask them to leave in a timely manner. He relied on guidelines from the City that the patrons could finish what they had before they had to leave.

[143] Mr. Pappas testified that before they opened, since they could not get a full definition from the City, and had conflicting viewpoints. He further testified that on the first day of the reopening, he and his wife toured some patios, including "The Keg" at Sherway Gardens. It has an open wall in the front and a smaller open wall on the side, and he estimates that their patio is about 4000 to 5000 square feet. He said it has a fixed roof. It was deemed to be an outdoor space. He identified two photographs he took of The Keg at Sherway Gardens after this visit and in preparation of this trial, which were made Exhibits 12A and 12B. He indicated that in terms of the structure, they are virtually identical to how it appeared in June, 2020, and that is focus was the roof overhang and the opening.

[144] He formed the opinion that The Crooked Cue had “much more free airflow” than The Keg at Sherway Gardens (Transcript, October 28, 2022, at p.24).

[145] Mr. Pappas testified that his wife, Tracey Pappas, who is the co-owner, contacted their BIA, which informed them that they could open the patio portion in front at 30 percent capacity.

[146] Mr. Pappas testified that Ms. Lianna Misador from the Kingway Business Improvement Association ("BIA") sent them an email, dated June 16, 2020, in this regard. It was read out to Mr. Pappas, as follows (Exhibit 7):

Hello Sam and Tracy [sic]

I hope all is well - we have a walk through with the City today and have voiced your concern…

You can open up both your patio upstairs at 30% ( patio side), 30% is better than nothing according to City (urban planning), no need to register for Cafeto I will keep you both posted on the official opening day

And if you’re not using the downstairs can you please permit Romi's, Azarias and Sempre to use it - we will make sure there’s enough room for your entrance?

[147] Mr. Pappas recalled receiving this email from Ms. Misador. He testified that for outdoor dining, the stipulation at the time was that the entire patio should be open and tables should be at least six feet apart. He added that the reference to 30 percent was a reference to that percentage of his maximum allowable people, which would have been about 80 patrons per side. The way they set it up, they were nowhere near that capacity.

[148] Mr. Pappas stressed that they were very careful to ensure the safety of their patrons and employees. The maximum number of patrons they had on each side was 50, in 3000 square feet per side. He voluntarily restricted the capacity to less than what he believed the provincial government permitted. They also followed the best protocols, including using timers to wipe down tables every 15 minutes. They also controlled how many people came in and out of the premises by having walkie- talkies at the top and bottom of the stairwell. They would only allow one group up at a time, and did not permit different groups to pass on the staircase.

[149] When the officer came in who charged him, Mr. Bazger, Mr. Pappas testified that he was not wearing a mask, did not use the hand sanitizer, touched things, and touched his own face. Mr. Pappas took a video of this incident, and compared it to his staff, who were masked. He added that the two uniformed police officers and two by-law officers who entered with him were also unmasked.

[150] Mr. Pappas testified that The Crooked Cue had zero COVID-19 transmissions for over two years, and that the first one they had related to the Omnicron variant.

[151] When asked in chief if he ever asked the City of Toronto for any assistance in determining what was an outdoor dining area in or adjacent to a place of business, he replied that yes he had, and he had received conflicting reports.

[152] First, he saw John Tory, the Mayor, publicly state that the City would assist businesses.

[153] Then, when he heard rumours that he would be challenged, he contacted the City, but stated (Transcript, October 28, 2022, at p. 42):

I basically – what happened was, I started contacting people because I’d heard rumours that I was going to get challenged. And so, I did contact the City, nobody got back to me for quite a bit of time. Then just before the reopening happened, Mr. Thompson, I guess, came out and did a look see, didn’t inform me that he was coming, just stood outside the front of the building, deemed that we, in his mind, we didn’t meet the criteria at the time and then he sent me a note. Of course, it upset me greatly and I challenged it and we had a conversation...

[154] Mr. Pappas testified that he is certain that Mr. Thompson has never been inside The Crooked Cue.

[155] Mr. Pappas felt very frustrated, and believed that the final answer lied with Licensing and Standards. As he stated (Transcript October 28, 2022, at p. 44):

…I was told that this this was Mr. Thompson’s opinion, but the final answer lied with licensing and standards. They were the ones who were going to make the final determination whether I could open or not. And when I tried to get a hold of people from licensing and standards, nobody got back to me. So, the only thing I had was from Mr. Thompson – and I was told that that was his opinion, but it wasn’t the final answer.

[156] Mr. Pappas is uncertain about the involvement of Dr. de Villa in this matter, but said that her name did come up in the redacted emails in this case.

[157] In chief, Mr. Pappas testified that the City staff never came by when the roof was open and the front patio doors were open to measure the airflow. The first person to come in from the City was Mr. Bazger. Mr. Pappas testified that Mr. Bazger never measured the overhang areas versus the area under the open roof. He estimates this overhang is 7 or 8 feet. When the retractable roof is fully open, he testified that the air in the premises is replaced in “the entire place” (Transcript October 28, 2022, at p. 47). He added that it impacts on the temperature and exposes patrons to the elements, even under the overhang. He characterizes their focus on the overhang as a grasping at straws to justify this prosecution.

[158] By way of comparison, he testified that the roof at The Keg at Sherway Gardens (as seen in Exhibits 12A and 11B) is a complete roof.

[159] At The Crooked Cue, Mr. Pappas testified that they removed all the lounge furniture, and had no more than six chairs per table. He also ensured that everyone was at least six feet apart, and often 10 to 12 feet apart. They also put up patio umbrellas to deal with the sunlight on the patrons when the roof was retracted.

[160] Mr. Pappas testified that when the province permitted the reopening of outdoor dining areas, there was no reference to the term “patio” in the regulation.

[161] Mr. Pappas testified that the Liquor Control Board did not deem The Crooked Cue to be a patio, because the space had already been licensed before they installed the retractable roof. When it was installed, he contacted the Liquor Control Board which advised him that he did not need to change his licence because he had not changed the number of seats. Most restaurants that open a patio in the summer time have added extra seats. Since his capacity and configurations did not change, this requirement did not apply.

[162] Mr. Pappas described his business as being “very unique”, and testified that the City should have taken some time and care to assess it on its merits, rather than assessing it from the street without entering the premises.

[163] Defence counsel referred him to the email dated June 19, 2020, from Mr. Thompson to Mike Major, Melissa Simone, Elizabeth Glibbery and David Mowat, but forgot which exhibit it was (Exhibit 8). In this email, it appears that David Mowat was a doctor and consulted by the City, although he has not been produced by the City as a witness. He asked Mr. Pappas if he knew David Mowat or if he has ever been at The Crooked Cue with the roof open or closed? Mr. Pappas replied, “no”.

[164] Defence counsel continued to read from an unidentified email from Mr. Thompson, which referred to a “guidance document”, as follows:

Good morning Mike, in an effort to ensure more consistent, objective approach in determining whether or not the patio meets public health requirements, an objective of facilitating free airflow, the following changes were made in the guidance document.

[165] Mr. Pappas testified that he never received this guidance document from the City of Toronto regarding what constituted an outdoor dining area, however.

[166] This same email further states:

Restaurants may have previously installed patio covering such as canopies, tents, awnings and umbrellas, but these coverings must meet the following conditions: one, the patio must remain fully open to the air on at least three sides to allow for adequate air circulation.

[167] However, Mr. Thompson sent another email, dated June 19, 2020, 1:01 pm, to Alok Sharma (Exhibit 7), which he read out and it stated:

Hi Alok

In an effort to be more consistent, an objective approach determining whether or not a patio meets the public health requirements and objectives facilitating free air flow. The following changes were made in the guidance document…restaurants may have previously installed patio coverings such as canopies, tents, awnings, umbrellas, but the following conditions must be met…the entire patio must remain fully open to the air on at least two sides …to allow for adequate air circulation, except for umbrellas and coverings should be no less than the height of three metres, ten feet around…

[168] Mr. Pappas testified that he was unaware of these discussions.

[169] This same email referred to a site visit at The Crooked Cue at 3056 Bloor Street West on June 18, 2020, but Mr. Pappas stated that no City official came into The Crooked Cue on this date.

[170] He was asked about Mr. Thompson's testimony that he saw this premises from the street, when the patio doors were closed and the roof was closed. Mr. Pappas testified that he had invited him to return when it was open but he refused. Mr. Pappas said that he was at the end of his rope. Mr. Pappas believed he was in compliance with the law because the provincial requirements made no reference to a patio but stated dining in or adjacent and “that’s exactly what we were” (Transcript, October 28, 2022, at p.57).

[171] Mr. Pappas had received competing information from the Kingsway BIA, which advised him that they had been told by the City he could reopen, versus Mr. Thompson’s “point of view” which he refused to back up or return, and then silence from Mike Major or anyone else at Licensing and Standards. When asked in chief if he believed that he was contravening the provincial legislation when he reopened, he replied (ibid, at p.59):

No. 100 percent, no. And the reason I say this is the first day people were allowed to open, I didn’t open. And the reason for that is I had to go see what they were allowing before I took that step. And when I saw what they were allowing versus what I had, any reasonable person, reasonable, would conclude that I had more airflow than many of the establishments they were allowing to open. I was not treated with any kind of respect or dignity, nobody even came in to look at the place not one person.

[172] Mr. Pappas clearly believes that his business complied with the requirement, by being an outdoor dining area within a place of business.

[173] Prior to being charged, Mr. Pappas testified that Mr. Bazger, two by-law officers and two police officers did an inspection and that his staff believed that everything was good and that they were happy. They took pictures of his liquor licence, and observed their protocols and left without charging them. Mr. Pappas believes, based on Mr. Bazger’s testimony, that he only charged them after consulting with his superior.

[174] Mr. Pappas said that his staff advised him to attend around 9 or 10 pm on June 27, 2020, and he met Mr. Bazger outside of the premises along with someone from public health. He was advised that he was being charged, but was not given any reasons by Mr. Bazger.

[175] Mr. Pappas testified that he was very upset, and went back upstairs, and texted someone he knows to obtain Premier Ford’s telephone number. He spoke with Premier Ford on the phone within about five minutes. On June 28, 2022, he also spoke to Dr. de Villa, and had a further conversation with Premier Ford. He believed that the legislation was amended on Friday, July 3, 2022 to include establishments with retractable roofs as outdoor dining areas.

[176] Mr. Pappas testified as follows (Transcript, October 28, 2022, at p.75):

Yeah. My opinion was that the City had misinterpreted the legislation in the first place and that we had run into a dead end and therefore the Province stepped in and clarified it.

[177] Mr. Pappas testified that he was never advised as to who was responsible for interpreting what is an outdoor dining area. He was also never advised as to who would decide which businesses can open for either indoor or outdoor dining.

[178] Mr. Pappas said that the amended legislation came out at 9 am on the Friday morning, and he informed the City that he was going to reopen at 4 pm that day “in any event” (Ibid, at p.76).

[179] During his cross-examination, Mr. Pappas confirmed that as the owner, he took steps prior to June 27, 2020 to find out if he could re-open, including asking the City of Toronto for information. As a result, he received some documents from the City, and he also contacted the local BIA. Later in his cross-examination, he confirmed that it is the Kingsway BIA.

[180] Mr. Pappas testified that the BIA communicates with the City, and acts as “a liaison”. He confirmed that it is not overseen by a government office, but has its own board of management (Transcript, November 17, 2022, at p. 4).

[181] When asked if the BIA was a government office, he stated that he is not certain how it is viewed. He added that the BIA receives allocated tax money, and that this tax is involuntary. He believes that they have access to City staff that a regular businessman such as himself would not have.

[182] Mr. Pappas agreed with the Prosecutor that the BIA helps the flow of communication between business and government, and he added, “policy, that sort of thing.” He also conceded that the BIA does not make the law nor does it interpret the law (Ibid, at p.3).

[183] Mr. Pappas agreed with the prosecutor that the BIA did a walk-through of his business on June 16, 2020 (Exhibit 6). The BIA spoke to the City on his behalf, and they told him that the City had approved a 30 percent capacity to open.

[184] Mr. Pappas confirmed that Lianna Misador and Mike Major both work for the Kingway BIA. He was asked about an email from Mr. Major dated June 16, 2020 (Exhibit 7), which stated, “I hope all is well. We have a walkthrough with the City today and have voiced your concern.” He confirmed that he and his wife were sent a further email from Mr. Major dated June 17, 2020 (Exhibit 13), stating, “I spoke to MLS and they are aware of your specific situation and are trying to make it work, will let you know when I hear back more.”

[185] Mr. Pappas was shown a 4-page email chain dated June 19, 2020 from Elizabeth Glibbery, with a focus on the email from Sylvanus Thompson to a number of City of Toronto officials, dated June 16, 2020 (Exhibit 14), which stated in part (Transcript, November 17, 2022, at pp.15-16):

All of the benefits are likely to be lost were structures such as large canopies restrict free airflow. Some establishments, such as the Crooked Cue may have to be treated on a case by case basis to determine if they can satisfy the intent and purpose of this requirement. A site visit may be part of such review.

[186] While Mr. Pappas acknowledged that the City was taking extra steps to determine if his business was qualified to reopen based on this email, he stated (Ibid, at p. 18):

…there was no communication to me that any of this was happening. Zero. The communication was poor at best.

[187] He admitted that he knew that Lianna of the Kingsway BIA had communicated his concerns to Mike Major, and that the City was looking at it on a case by case basis. He also testified that he received a call from Sylvanus Thompson on June 18, 2020, in which he was told that The Crooked Cue did not qualify. Mr. Pappas was shocked that Mr. Thompson had made this determination without ever entering The Crooked Cue to see how they had free and sufficient airflow. He believed that Mr. Thompson had been prejudiced by an email that he had received from Marcia Stoltz that indicated that she did not believe they met the criteria.

[188] Mr. Pappas agreed that he responded in an email back dated June 19, 2020, and that while he did not agree, he did understand what Mr. Thompson had indicated.

[189] When asked in cross-examination if this was the last official communication he received from the City of its position before reopening, he responded that this was the last communication he received in writing, but that Mr. Thompson had advised him it was up to Licensing and Standards. Mr. Pappas said that Mr. Thompson did not have that authority as far as he was concerned (Transcript, November 17, 2022, at p. 20).

[190] Mr. Pappas was of the belief that while Mr. Thompson did not think The Crooked Cue qualified, Licensing and Standards could make a different determination, and that this happens all the time. He was very angry that Mr. Thompson, “just showed up and left”. He maintains that the City had made a mistake in reaching this determination without Mr. Thompson walking through the premises (Ibid, at p. 21).

[191] Mr. Pappas stressed that in 30 years of business, his establishment has not had any violations, and that they don’t break rules or behave shabbily. They did not reopen right away, they put the best protocols in place, and they have had zero transmissions of COVID-19.

[192] Mr. Pappas read the provincial legislation and did his due diligence, and no one from the City told him he could not open. He had been told by one person that they did not meet the standard, but he had never been told he could not open. He is upset that the City did not give him a warning at least as a courtesy after all his years in business.

[193] When asked about his testimony about conflicting opinions, he responded (Ibid, at p. 23):

No. I had one from the BIA, that said they had done a walk through with the City and determined it was okay to open. Then I had Mr. Thompson giving me a different opinion, and I had nothing from anybody else.

[194] He agreed that he had not heard back from Mr. Major again prior to reopening.

[195] Mr. Pappas was strident in his testimony that Mr. Thompson had given him his opinion that The Crooked Cue did not meet the requirements because it did not have two open walls, but that the City’s requirements were, in his view, “changing by the minute. It was three walls and then two walls” (Ibid, at p.24).

[196] He agreed that his response to the City included the phrase, “I’m going broke”, when asked if financial pressures were also a factor in his decision to reopen.

[197] He reiterated his belief that it was not up to the Health department of the City, but up to Licensing and Standards. He acknowledged that he was charged under the Emergency Measures Civil Protections Act and not under the Reopening Act. However, he stated (ibid, at p.27):

But I was told if you were going to reopen, it was up to licensing and standards. That’s what I was told. Whether that’s correct or incorrect, that’s what I was informed.

[198] Mr. Pappas testified that The Crooked Cue did not require a patio licence from the Liquor Licence Board after its renovations which included the retractable roof, since the space involved remained the same. He stated that he made this call to them around the time of these renovations.

[199] Mr. Pappas attended The Keg and Joey’s both at Sherway Gardens, and was familiar with their layouts. He went again in June 2020 prior to re-opening. He stated that this Keg has two walls, one of which is fully open and the other is partially opened.

[200] A google map (Exhibit 15) was shown to Mr. Pappas of The Keg at Sherway Gardens, taken October 2020. He confirmed that he has attended this place at least half a dozen times. He described one wall that is fully open. He also described a second wall, which he estimates is open about four or five feet, but it covers the length. He added that the entire bar area is covered by a roof, which is 50 to 60 feet away from any of these openings, and yet it is still considered to be an outdoor space. It also has a roof that is potentially retractable, although Mr. Pappas has never seen it open.

[201] When asked about Joey’s at Sherway Gardens, he was uncertain if it has a retractable roof. He did attend at this location on June 25, 2020. It has large windows that drop down. He concluded that the Crooked Cue had more airflow than either of these establishments.

[202] Mr. Pappas confirmed in cross-examination that he did not speak with the owners of these other two establishments nor did he call 311 or MLS or Toronto Public Health, to discuss the discrepancies he had noted. Since they were operating and they were part of big chain restaurants, he believed that he could open too. He knows that Joey’s was subsequently charged and convicted, but that The Keg was permitted to operate. He is of the belief that Joey’s pled guilty, but is not certain. He did not try to call the City to ask, since he said that to do so would have been “fruitless” (Transcript, November 17, 2022, at p. 45).

[203] The Prosecutor was permitted to enter evidence of the conviction of Joey's generated in an affidavit of a municipal law clerk to prove that Joey’s was convicted of the same charge (Exhibit 16), but there is no indication whether it went to trial or if their matter was pled out.

[204] Mr. Pappas testified in cross-examination that when he contacted Dr. de Villa after the charge had been laid, that she would not be able to assist him, and said it was out of her hands. She advised him that it was up to “standards and enforcement”, and that if the City was not willing to budge, that he had to have the Province change it, because she had nothing to do with enforcement. While this statement was clearly hearsay, I permitted it to go into the record, since the prosecutor specifically sought this answer (Ibid, at p.48).

[205] During cross-examination, he was asked about his testimony that he did not receive any reopening guidelines from the City. In particular, he was shown Exhibit 11, which includes “guidelines for restaurants” and a clickable link. In response, he said that the City did not provide him with this document, that they had to go find it themselves. He indicated that his wife ensured they had all the documents and “protocols”. He also confirmed that he received a call from Sylvanus Thompson, advising him of the City’s position.

[206] In Re-Direct, Mr. Pappas testified that there were only two authorities on whom he relied to determine if The Crooked Cue met the definition of an outdoor dining area in or adjacent to a place of business, being Mr. Thompson and Mr. Major. As he put it, “no other authorities contacted me…”(ibid, at p. 57).

[207] He had been told that The Crooked Cue was in compliance with the City by the BIA, but then he was charged.

[208] He confirmed that he went to The Keg and to Joey’s at Sherway Gardens on June 25, 2020, the date of the reopening. He testified that he assumed, perhaps incorrectly, that being large corporations, they would have had more administrative and legal guidance and that, “their due diligence would have been done” (ibid, at p. 58).

[209] During Re-Direct, Mr. Pappas described his thoughts at the time as follows (ibid, at pp. 58 to 59):

You know, because I had been – my opinion just had been left high and dry by the City. Nobody had gotten back to me after my last conversation with Mike Major, which was a week before, and I was just left hanging. A – a very cursory walk by, by Mr. Thompson, coming in the morning when the Cue wasn’t even open, establishing the criteria that he thought that we didn’t meet.

I just – I – I just – I don’t know, I felt very alone and very up in the air. I knew we had met the requirements of the free and flowing air, but yet it seemed like nobody cared or – or it was a political hot potato or something. I just couldn’t understand what was happening.

I – I was never given any guidance on what free and – free airflow was or any establishment or – or any reason about – or any – sorry, any criteria of the reasoning they were using. You just basically had to be an outdoor space in the Provincial statute and they just basically did not give me any – any criteria how to meet that other than two open sides, which, you know, I – I figured we had two open sides. We had a front and we had a – a ceiling which was two open sides.

[210] He was adamant in his testimony that he was never given any definition of what constituted a side, nor did the City provide him with any guidance as to what constituted an outdoor dining area in a place of business.

[211] After his conversation with Dr. de Villa, he contacted the Premier again, on June 28, 2020. The provincial legislation was amended on July 3, 2020, to include retractable roofs.

[212] In Re-Direct, Mr. Suboch raised the issue of whether or not The Keg at Sherway Gardens has a retractable roof, in reference to Exhibit 12B, and Mr. Pappas’s testimony during cross-examination. He argued that the City never proved that the roof at The Keg is retractable, and that he has information from its manager that in fact, it does not retract. During Re-Direct, Mr. Pappas testified that he has been at the Keg several times, and never seen this roof retracted, and that he has no idea if it is a retractable roof or not.

[213] Finally, Mr. Suboch showed Mr. Pappas a print-out of the The Keg at Sherway Gardens website (Exhibit 17). Mr. Pappas read it out (Transcript, November 17, 2022, at p.71):

...location has a spacious covered roof, outdoor patio to enjoy.

Ms. Daria Agius:

[214] In order to further deal with the issue of whether or not The Keg at Sherway Gardens has a retractable roof, I permitted defence counsel to call a patron of that establishment, Daria Agius.

[215] Ms. Agius testified under oath that she is a Risk Manager with the LCBO, who resides in Mississauga, Ontario.

[216] She stated that she is a frequent patron of The Keg at Sherway Gardens, and she normally attends its patio area, which is on two floors. When asked if it has a retractable roof, she stated that it does not.

[217] Ms. Kym did not have any questions for this witness, and she was excused.

Mr. Tim Thomson:

[218] Mr. Tim Thomson is 57-years old and he testified that he is a lifetime resident of Etobicoke. Mr. Thomson works as a managing director of a major fixed income bond broker. He is familiar with The Crooked Cue as a patron and has been since he was in high school. He recalls the installation of the retractable roof in 2015 and what he termed, “the big front window…the reclining window”, as well. He attends at The Crooked Cue after playing hockey once per week, and believes that he has attended at this venue about 30 times this year (Transcript, October 28, 2022 at p.83)

[219] Mr. Thomson testified that before the renovations, he would describe The Crooked Cue as being an indoor dining area, but when the roof and the patio doors are open, he believes it is an outdoor space, “100 percent absolutely”. He has sat inside the Crooked Cue with t-shirts and sandals and also with a toque and winter jacket on when the premises is fully open (Ibid, at p. 84).

[220] Mr. Thomson was at The Crooked Cue on the night it was charged, in the east side of the premises, sitting at a harvest table. He said that the roof was open, as well as the patio doors. He described it as “eating in an outdoor establishment, on the patio” (ibid, at p. 86).

[221] Mr. Thomson recalls that evening, and said that the enforcement officers and police officers were unmasked. He saw them enter the establishment, talk to management, and then they left, and he described their approach as being, “very minimal” (Ibid, at p.88).

[222] Mr. Thompson was surprised by this, since when he entered the establishment, he had to go through the lower entrance at the bottom of the stairs, and go through a number of protocols, with a mask and advise of his vaccinations. While he was in the restaurant, he had to wear his mask when he wasn’t eating or drinking, and put it back on when he left his table.

[223] Once the reopening took place, Mr. Thomson went to a few other establishments as well, describing himself as, “a pretty social guy” who likes to get out. After trying a few places, he “settled on the Cue because I thought that was – for me, the most comfortable and the safest place to go as – you know, it’s very spread out, so you’re not close to anybody…” He added that they followed all the rules, and everyone wore their masks and had cleaning supplies available for handwashing (Ibid, at p.88).

[224] During COVID-19, Mr. Thomson lived with his wife, their four boys ages 25 to 17 years old, in-laws in the basement and his sister-in-law who assists with eldercare. At this time, his in-laws were between 80 and 85 years old.

[225] During cross-examination, Mr. Thomson confirmed that he is only a patron of The Crooked Cue, and he is not a directing mind nor in management with this business. He also confirmed that he does not have any expertise in emergency legislation.

[226] He confirmed that prior to entering The Crooked Cue, the staff checked his vaccine status, but when the Prosecutor pointed out that vaccines were not available yet. He stated that he was speaking in generalities, and that the staff asked for protocols to be covered before permitting entry, which included temperature testing.

Mr. Michael O’Brien:

[227] Mr. Michael O’Brien is a 57-year old man who has resided in Etobicoke since 1979. He works as an in-house counsel at a major university, responsible for its labour relations.

[228] He has been going to The Crooked Cue since he was in high school, when it was "Pappas Billiards", and has been going there through what he termed its “evolution”, to The Crooked Cue. He is aware of the major renovation that took place in 2015. He recalled that it was done in two parts, because of the adjoining rooms. He testified that the east side was renovated first, and the roof was opened up and a glass-like arboretum roof that retracts was added. On the south side, facing Bloor Street, he described a glass wall. When asked if it was fair to call it patio doors, he responded that it was, “ a larger version of patio door because they’re bifold…opens the whole wall up” (Transcript, October 28, 2022, at pp. 103-104).

[229] Before the retractable roof and these doors were installed, he described The Crooked Cue as being, “an enclosed restaurant indoor”. He added that when he attends at The Crooked Cue but the roof and patio doors are closed, Mr. O’Brien testified that it is “akin to indoor dining” but added that it was very bright (Ibid, at p.104).

[230] When he attends and the roof is fully retracted and the patio doors are fully open, he testified that it is “a fully exposed outdoor dining experience” (Ibid, at p.105).

[231] Mr. O’Brien testified that the retractable roofs on the east and west side are glass, and that there is a small portion of roof from both sides which are covered.

[232] When he sits under the open roof, the opening is in the centre of the room, and he feels that he is outside. He has had sufficient sun exposure with the roof open to get a sunburn. He has also been at The Crooked Cue when the roof was closed, due to rain.

[233] During cross-examination, Mr. O’Brien confirmed that he is a regular patron, and has no other connection with this business.

[234] He cannot recall specifically if he was there on the day that The Crooked Cue was charged, but has been present when by-law officers have attended.

[235] He also confirmed that he does not work or interact with drafting legislation for emergencies, although he has done work related to other legislative drafting.

[236] Mr. O’Brien also confirmed that when he compared The Crooked Cue to other similar establishments and found that their airflow was also similar, this was his opinion and he did not take any scientific measurements.

Mrs. Tracey Pappas:

[237] Mrs. Tracey Pappas testified that she is married to Sam Pappas, and that she is the co-owner of The Crooked Cue. She has been involved in its management since it opened on January 31, 1992.

[238] Since their business opened, she testified that The Crooked Cue has not been charged with any other offence whether it be criminal, provincial or municipal. They received one warning about 15 years ago from a health inspector regarding an issue with the foil not being properly wrapped in some of the chaffing dishes, and they complied and never did that again.

[239] Mrs. Pappas testified that during the COVID-19 pandemic, The Crooked Cue was shut down completely except for take-out food. The first shut-down was on March 17, 2020. She said that they watched the news diligently to determine the status of any re-openings, and she heard “rumblings” of a possible re-opening in June, 2020 on various news programs.

[240] She began her own research to protect the health and safety of her staff and her customers. She said that their business was built completely on their reputation. She stated that, “we were taking all of our responsibilities with the utmost seriousness” (Transcript, November 17, 2022, at p. 80).

[241] She said there was talk of reopening outdoor areas, and she was very hopeful. Their renovations, done in 2015 and 2016 included two retractable roof tops, and cost about $1.5 million.

[242] She was asked in chief whether or not The Crooked Cue is an outdoor dining area when the roof is fully open and the front windows are fully open. She replied, “I believe with my whole heart that it’s an outdoor dining area” (Ibid, at p.81).

[243] She is only aware of one other restaurant in the Greater Toronto Area that has a retractable roof, and it is downtown. They used the same company to install it. Later in her testimony in chief, she explained that since their location is in an affluent area of the Kingsway, they concluded that they would increase their summertime business if they had retractable roofs installed. During the summer, they offered outdoor dining, and in the winter, their clients liked feeling like they were outdoors.

[244] She has closed the retractable roof with patrons inside because of inclement weather, which includes rain, snow, sleet or sun.

[245] In the four to six weeks leading up to June 2020, in the hope of re-opening, Mrs. Pappas read every single document she could, including the Province of Ontario's Reopening Act, materials from Workplace Safety and Prevention Services, and documents from Toronto Public Health dated June 5th and 19th. In addition to regularly checking the Toronto Public Health website, she was also checking the Peel Public Health site to see if there was anything she may have missed.

[246] Mrs. Pappas testified that Restaurants Canada offered ten sessions for restaurant owners to assist with organization preparedness, and either she or her staff attended all ten sessions, and made notes for everyone else to share. The last line of these sessions advised restaurant owners that life would be easier with a plan in place, since inspectors will come to help and answer questions. Mrs. Pappas found this ironic.

[247] She also worked with a group called the “15 Group”, which was a consulting company for restaurants across Canada, and she was a client of Peninsula, which was a human resource company that provided them with employment standards and safety documents.

[248] She also reviewed protocols she received from "Sysco", one of their suppliers, and "Ecolab", since both had protocols and checklists.

[249] Mrs. Pappas is unaware of anyone from the City of Toronto who worked as an inspector offering them any pointers on what should or should not be done.

[250] Based on her review of all these materials, Mrs. Pappas wrote a 30-step protocol for The Crooked Cue. None of these resources talked about airflow, but instead discussed protocol and coded safety.

[251] Mrs. Pappas described The Crooked Cue’s protocol in her testimony in detail.

[252] She explained that at the bottom of the stairs, where the public enters the restaurant, they set up a host booth. They had two hosts at the bottom of the stairs, and two at the top of the stairs. They began with active screening, as recommended by the City of Toronto, meaning that the customers had to complete a questionnaire about symptoms. They required temperature checks on everyone as they entered the building, including customers at the front and staff and delivery personnel at the back of the building. Mrs. Pappas said clearly, “No one gained access to – to our premises without having their temperature taken” (Transcript, November 17, 2022, at p. 86).

[253] Another key part of the protocol for The Crooked Cue was contact tracing, which meant that they recorded the names and phone numbers and addresses of everyone who entered the premises and they kept those records for one month.

[254] Both the symptom screening and contact tracing were in accordance with the City of Toronto.

[255] Instead of having their regular two hosts per evening, they had four hosts per evening, in order to achieve these extra steps. Mrs. Pappas ensured that no parties crossed each other on their staircase, and they used walkie-talkies so that the hosts at the bottom of the stairs were in communication with the hosts at the top of the stairs. They sanitized the railing on the stairs between parties. The customers coming up the stairs were required to sanitize their hands. All the doors were kept open as well, including the washroom doors, since she wanted to avoid any touch points. Each table was sanitized prior to use and each table had a hand sanitizer. Everyone was required to wear a mask or a face shield. All menus and condiments were one-time use, nothing was left on tables, e.g. no formal menus and no candles. She put up signs everywhere that were meant to embolden the six-feet of physical distancing which testified stated, “Keep A Cue between Me and You.” She also testified that they had demarcation marks on the floors. The staff were required to wash their hands between every transaction. Additionally, the bartender set a timer, so every 15 minutes, all the staff would wash their hands an additional time (Transcript, November 17, 2022, at p. 90).

[256] If the weather was inclement during COVID-19, they did not open the restaurant because they couldn’t open the roof.

[257] If the weather changed while patrons were dining, they were permitted to stay to finish their food as long as the restaurant was not over-capacity, and then they would close. Mrs. Pappas said they did this to comply with the legislation.

[258] She instructed the staff to never congregate, and to use the back area of the restaurant to space out and take their breaks. The staff were required to wear masks at all times, except to have a drink in the designated back area.

[259] Mrs. Pappas testified that they removed the bar stools, and patrons had to be seated in the restaurant, and not permitted to go to the bar. Patrons could not walk around the restaurant except to go to use the bathroom and then exit, and were required to wear masks while doing so. They had many signs up that indicated only one guest at a time could use the bathroom. The bathroom doors were left open, and there were six feet demarcation lines outside to facilitate any line-ups.

[260] Mrs. Pappas testified that the bar was located under the overhang area of the roof, and only the bartender was allowed under this spot. The bar area was divided into stations, so that the server could pick up drinks from their own designated station.

[261] She testified that it was her understanding that provincial legislation permitted the food and drink preparation areas to be under the covered area.

[262] All the chemical sanitizers used were named on a website put together by Health Canada, to ensure the chemicals were acceptable during COVID-19.

[263] Mrs. Pappas's protocols were more than what was required by the City of Toronto. She has eight managers and four of them have been with them for more than 25 years. She stated, "I would never put our staff or out patrons in harm's way" (Ibid, at p. 92).

[264] Mrs. Pappas testified clearly that The Crooked Cue was never given any guidance as to what constituted an outdoor dining area, nor any definition of what would be sufficient free airflow.

[265] She testified that they were not required to have a patio licence from the Alcohol and Gaming Commission when the roof is open.

[266] Mrs. Pappas testified that they did not re-open on June 25, 2020, because they wanted to do their due diligence and see what others were doing in the industry.

[267] Mrs. Pappas had left for the day when the charges were laid. She believes that the general manager, and likely two other night managers were there, as well as her two sons who were working.

[268] During cross-examination, Mrs. Pappas was asked who is Restaurants Canada? She replied that it is the national board that represents restaurant trip tours across the country. The provide advice and leadership, collect facts and economic data. In addition to their video sessions, Mrs. Pappas referred to their document that was a reopening resource for food service operations.

[269] She was also asked about the legislative authority to permit customers to move inside and finish their meals if it rained. She responded that it was from a City of Toronto document, dated June 5th, entitled, "Toronto Public Health COVID-19 Guidance, Guidelines for Reopening Your Restaurant" (Exhibit 18).

[270] She agreed that this was a guidance document from the City of Toronto, and not contained in the legislation. Mrs. Pappas added, "I think it happened very rarely" (Transcript, November 17, 2022, at p. 101).

Ms. Jennifer Stark:

[271] Ms. Stark testified that she is the General Manager of The Crooked Cue, on Bloor St. West, Toronto, and has been so employed for about 5.5 years. Prior to this position, she was the General Manager of another restaurant in Etobicoke.

[272] Her duties as General Manager of The Crooked Cue include: guest experience, staff training, scheduling and overall execution.

[273] When she started in 2017, The Crooked Cue had already installed the retractable roofs.

[274] Generally, the retractable roofs are open during warm weather, when there is no precipitation. She confirmed that they check the weather forecast prior to making a determination about the roof. They put umbrellas out on the tables when the roof is retracted in order to protect the guests from the sunshine and the heat.

[275] She recalled The Crooked Cue being closed because of COVID-19 and the reopening process that took place in June 2020, since she was part of this process.

[276] Ms. Stark testified that the "bosses", whom she identified as the owners, Sam and Tracey Pappas, had prepared all of the materials on safe re-opening, and provided masks, essential cleaners, rapid testing, and that the staff were assigned specific dedicated cleaners for bathrooms and surface areas, and prepared our staff and provided masks.

[277] She was asked if The Crooked Cue required a patio licence when the roof was open, and she was not certain.

[278] She believes that The Crooked Cue waited a few extra days to reopen in June 2020.

[279] She recalls that when they reopened, the only area open in the restaurant was immediately under and surrounding the open roof. She described it as follows (Transcript, November 17, 2022, at p. 112):

It's very close to where the roof would be open and our wide open doors would be fully open at the front of the restaurant as well.

[280] She testified that patrons sitting in this location when the roof and windows are open would "receive lots of sunshine and they definitely would have airflow there" (Ibid, at p.115).

[281] Ms. Stark testified clearly that the patrons were not permitted to sit at the bar and that they did not use any of their pool tables. Only patrons immediately under the retractable roof or surrounding it were permitted seating.

[282] Ms. Stark testified that she was at work when The Crooked Cue was charged on June 27, 2020. She recalls the event, and said it was a bright, sunny day, and her shift had started around 3:00 pm.

[283] She was speaking to a guest when she noticed the two officers had come in, so she immediately went to greet them at the door. The officers were not wearing masks, unlike herself and her staff, but she did not ask them why.

[284] After she greeted the two officers, a few minutes later, a health inspector followed them in, also not wearing a mask. She cannot recall the health inspector's name, however. When asked if this was Officer Bazger, she could not recall. Ultimately, there were five unmasked officials in The Crooked Cue, whom she believes stayed about 10 to 15 minutes before they left.

[285] He began asking her a number of questions, and she took him through their procedures and protocols. He let her show him the protocol they had in place. At this point, Ms. Stark believed it was a routine visit to ensure that protocols were being followed. She testified that she advised him of all their cleaning procedures, special cleaners, the documenting of all guests, and rapid testing. She said he took pictures of their licences and some of their signage.

[286] Ms. Stark testified that they did not ask any questions about airflow, or ask her to close the windows or roof, or say anything at all to her that would have caused her to believe they had an issue with whether or not The Crooked Cue was an outdoor dining area in or adjacent to the place of business. She testified that the bylaw officers "were just discussing their admiration of the space as they had not seen it before" (Transcript, November 17, 2022, at p. 118).

[287] Ms. Stark carried on when the five officials left, thinking they were only there to check the protocol, were happy with what they saw, and so she stated she carried on with her evening. About three or four hours later, she received a call that she needed to go downstairs to the sidewalk and Sam Pappas was on site then.

[288] At this point, the health inspector who had been there earlier and another gentleman, she believed to be his supervisor, were outside. They advised them they were not in compliance, and wrote them a ticket. Ms. Stark testified they did not say why. They also advised them they would return the following day to ensure they were in compliance.

[289] Ms. Stark testified that they advised them that they had an email from the local BIA telling them that the City of Toronto had done a walk-through and that they were approved to be open. They offered to show it to them, but they declined. They described the layout of the space, and how they could possibly not consider it to be outdoors. However, they did not agree. She testified that the supervisor never came upstairs to see the space, but just wrote the ticket.

[290] Ms. Stark described this male she believed to be the supervisor as male, Caucasian, slim build, dark hair. As far as she knows, he did not enter The Crooked Cue that day nor has he ever entered it.

[291] Other than the earlier visit 3 or 4 hours prior to the charge being laid, when asked if this by-law officer or health inspector had ever been to The Crooked Cue prior, she stated she was not sure.

[292] Ms. Stark testified that they had set up The Crooked Cue for the taking of a view on October 28, 2022, the same way it looked the date of the charge. The only material difference was there was a great deal of Plexiglass up in 2020, to protect the staff and guests. When asked why, she replied (Transcript, November 17, 2022, at p. 123):

Some of it is mandated based on the proximity of the seating, and some of it was just by Tracey's excessive protection.

[293] Historically, the feedback she has received from patrons when the roof has been open is that it is a "fantastic rooftop patio" Ms. Stark identified a 3-page document of screenshots that she had printed, of random customer reviews received online post reopening, all of which were very positive, which repeatedly referred to it as the reopening of a rooftop patio. One review from 2020 described the rooftop patio as being too hot to be enjoyable. Another customer described it as being open air (Ibid, at p. 123 and Exhibit 19).

[294] During cross-examination, she was shown some photographs of The Crooked Cue and was asked to identify the Plexiglass. She said that it was not visible in these photographs, because it was between all of the booths, covered the host station, and the manager stand. It was located during her testimony in one of these photographs, dividing the tables that were on the other side of the opened roof area. Ms. Stark said they were installed prior to reopening. She identified another piece of Plexiglass in a photograph she was shown, along a ledge area. It was around the covered portion of the restaurant.

[295] She also testified during cross-examination that the staff indoors who could not be properly distanced had to be masked, in accordance with the Reopening Act.

[296] The Prosecutor indicated in her cross-examination that the Reopening Act was not in effect on June 27, 2020, and the legislation that was in effect was the Emergency Measures Management and Civil Protection Act, and its regulations. She then asked Ms. Stark to provide her with the legislative requirement for the mask mandate. She replied that she could not say, but did indicate that she had read all of the stage two guidelines that they had been given at the time, but could not state specifically where it was from.

ISSUES:

[297] The following are the relevant issues in this matter:

(a) Has the actus reus of this offence has been proven beyond a reasonable doubt? (b) If yes, has the defendant established a due diligence defence?

ANALYSIS:

Introduction:

[298] The Emergency Management and Civil Protection Act, Order Under Subsection 7.0.2(4) of the Act - Stage 2 Closures, O. Reg. 263/20 is a regulation made pursuant to a public welfare statute, the EMPCA. The broad purpose of that underlying statute is to empower a provincial Cabinet advisory committee to advise the Lieutenant-Governor in Council on matters relating to emergencies. This statute further requires every municipality to develop and implement an emergency management program.

[299] On March 17, 2020 Premier Ford declared the first emergency under the EMPCA, with respect to the danger to public health posed by COVID-19. All bars and restaurants were required to close immediately, except to the extent that such facilities provided takeout food and delivery.

[300] There is no dispute that as a result of the first declared emergency, The Crooked Cue closed as of March 17, 2020. I accept the evidence of its owners that it reopened following the passage of Ontario Regulation 263/20 (Exhibit 3). I also accept the evidence of Officer Bazger that he attended the premises along with officers from MLS for an inspection on June 27, 2020. Finally, I accept the evidence of Mr. Sylvanus Thompson, the former Associate Director of Toronto Public Health, that he conducted his only site visit on or about June 18, 2020, while it was closed, from the street level on Bloor St. West.

[301] As a matter of context, I take judicial notice of the fact that the second declared provincial emergency pursuant to the EMPCA was not until January 12, 2021, which was a stay-at-home order made in order to deal with a rapid increase in COVID-19 cases.

[302] Ontario Regulation 263/20 was subordinate public welfare legislation, made under the EMPCA, designed to facilitate a gradual reopening of businesses and places, and included prescribed safeguards. When this Regulation was first promulgated, it covered the period from June 26, 2020 to July 1, 2020, but it did not include a definition of "an outdoor dining area that is, in or adjacent to the place of business", within s.1(1).

[303] On July 2, 2020, Ontario Regulation 263/20 was amended, by Ontario Regulation 344/20 made under the EMCPA, published on e-laws on July 3, 2020, and printed in the Ontario Gazette on July 18, 2020. It stated as follows:

1. Paragraph 1 of subsection 1(1) of Schedule 2 to Ontario Regulation 263/20 is revoked and the following substituted:

2. Patrons must be served through take-out, drive-through or delivery service or at an outdoor dining area that meets the following conditions: i. The outdoor dining area must be in or adjacent to the place of business. ii. The outdoor dining area must be configured to ensure physical distancing of at least two metres between patrons seated at different tables. iii. If the outdoor dining are is covered by a roof, canopy, tent, awning or other element, at least two full sides of the outdoor dining area must be open to the outdoors and must not be substantially blocked by any walls or other impermeable physical barriers. iv. If the outdoor dining area is equipped with a retractable roof, the roof must be fully retracted and at least one full side of the outdoor dining area must be open to the outdoors and must not be substantially blocked by any walls or other impermeable physical barriers.

I. Has the Actus Reus of this Offence Been Proven Beyond a Reasonable Doubt?

[304] In Libman on Regulatory Offences in Canada, Earlscourt Legal Press Inc., Vancouver Island: Update 32 - December 2021 at p. 8-53, Justice Libman summarized the standard in public welfare matters as follows:

Although the standard of proof for mens rea in public welfare prosecutions differs from the usual criminal case, the standard of proof for actus reus does not. The Crown must prove the actus of the offence beyond a reasonable doubt. Even in strict liability offences, the Crown must establish that the accused committed the actus reus of the offence. The prosecution has the burden of proving every element of the offence alleged against the defendant, and the defendant is not required "to assist" the prosecution in its case.

The Original Regulatory Order:

[305] I have reviewed the jurat. The sworn Information which charged the defendant corporation with "fail to comply with an order made during a declared emergency" on June 27, 2020, was sworn on September 11, 2020, and the summons returnable on September 25, 2020 was confirmed on that same date.

[306] The burden of proof is on the Prosecutor to establish that the actus reus of a strict liability regulatory offence, beyond a reasonable doubt. Public welfare offences prima facie fall within the strict liability category, as per R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 at p.1326.

[307] The EMPCA, and the Regulation (Exhibit 3) are clearly both public welfare legislation, designed to protect the people of Ontario from the spread of COVID-19 during the height of the pandemic. As such, I give them both very significant weight.

[308] In a case of similarly grave public welfare gravitas, Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461, Mr. Justice Trotter for the Ontario Court of Appeal considered an appeal, which rested on whether or not the trial judge had properly interpreted the original regulatory Order, which the Crown alleged had been breached, resulting in a catastrophic explosion and loss of life.

[309] Mr. Justice Trotter held that this was a mixed question of fact and law. At paragraph 30, he referred to the "factual context" of the matter, and quoted the Ministry of the Environment Provincial Officer's Order, issued on August 13, 2008, which included eight required work items, all set out in his judgment, verbatim.

[310] It was clear in Sunrise Propane that this regulatory order made by a POA officer followed an inspection at which time the officer ordered Sunrise to comply with the Director's published Public Safety Order regarding the manner in which propane may be transferred.

[311] In this matter before me, the original charging document or order was never made an exhibit, nor read into the record by either witness for the prosecution. I have never received the particulars of this original regulatory order nor its proof of service, which the defendant is accused of breaching. The offence charged at this trial is the breach of this prior regulatory order and this must be proven, see: Libman on Regulatory Offences, supra, at pp. 8-61 to 8-62, footnote 1, referring to R. v. Re-Purchase Shop, 2005 NBQB 359.

[312] I have testimony from Mr. Pappas and Ms. Stark, who confirmed that The Crooked Cue was served on June 27, 2020 with a summons, but that is the date in the sworn Information before me of the alleged offence of failing to comply with an order made during an emergency. I have no evidence whatsoever that an earlier order was made and served on the defendant corporation.

[313] Moreover, Mr. Thompson testified that the City's Public Health department had a guideline, which he referred to as the "guidance for the food industry", which included a section on patios and indicated some requirements, for the prospective reopening of restaurants, prior to the promulgation of the Regulation, but again, this guideline was not identified as an exhibit by him, no reference was provided by him about its publication on the City of Toronto's website, nor did he read it out onto the record. To be fair, I checked Exhibit 11, News Release: "City of Toronto advises two large business sectors - restaurants and personal service settings - to prepare for safe reopening", dated June 5, 2020, which was read out by Mr. Pappas. However, this other document makes no reference to guidance to the food industry with respect to patios, or the number of sides required to be open for an outdoor dining area. There is no evidence before me to substantiate Mr. Thompson's claim that the "guidance for the food industry" document was made public.

[314] In any event, it appears that this guideline was fluid and ill-defined in the background, and its requirement for the number of sides for an outdoor dining area to be open changed from three to two, based on Mr. Thompson's own testimony, the email he sent to Mr. Sharma (Exhibit 7), and a separate email he sent to Mr. Major (Exhibit 8).

[315] The EMPCA does not provide for emergency orders to be made orally, so Mr. Thompson's phone call to Mr. Pappas on or about June 18, 2020, does not establish proof of a regulatory order having been made beyond a reasonable doubt. Mr. Thompson was vague about when this call to Mr. Pappas even took place, although he testified that it was after his only site visit to the premises while closed and prior to the Regulation being enacted. Mr. Thompson testified clearly that when he did call Mr. Pappas, he stated that it was his "opinion" that the establishment did not meet the requirements for outdoor dining. He did not send Mr. Pappas any type of written correspondence to document the nature of this call, or to indicate that this was supposed to be an enforceable regulatory order as opposed to being his “opinion” and nothing more.

[316] Thus, I have a serious concern about the vague and undocumented nature of the original regulatory order itself, which is the basis of the allegation of the breach of the statute, as a matter of natural justice and fairness.

The Credibility of the Prosecution's Witnesses:

[317] In assessing the credibility of witnesses, the Supreme Court of Canada held in R. v. Gagnon, 2006 SCC 17 at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events...

[318] In Faryna v. Chorny (1951), 1951 BCCA 252 at page 357, O'Halloran, J.A. speaking for the majority of the British Columbia Court of Appeal described the approach to assessing credibility as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of a quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may be easily be self-direction of a dangerous kind.

The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divining insight into the hearts and minds of witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [emphasis added]

[319] I listened carefully to the evidence of Officer Bazger. I accept as true his testimony that he conducted an inspection of the Crooked Cue on June 27, 2020, in the company of officers from MLS. This was the only inside inspection done of The Crooked Cue's Bloor St. premises. He left with the MLS officers without laying a charge.

[320] Officer Bazger took a series of photographs but did not take any measurements of the retractable roof. After this inspection, he consulted with his manager, Paul Da Silva.

[321] Officer Bazger testified as follows (Transcript, August 9, 2022, at p. 64):

...based on the evidence that I had collected, based on my observations, we made okay, I presented what they were and you know we decided that this did not constitute an outdoor dining area and as a result, I proceeded laying the charge.

[322] This was the entirety of his evidence regarding the laying of the charge before me, in chief or in cross-examination. He never identified any underlying order or charge, to support this allegation of a breach.

[323] Moreover, Officer Bazger's testimony during cross-examination on the issue of whether or not The Crooked Cue fell within the Regulation's requirement to be "an outdoor dining area that is in or adjacent to the place of business", which was in place at the time he laid a charge, was fraught with serious inconsistencies.

[324] A key weakness in his testimony was his admission during cross-examination that while the premises was not an outdoor dining area, it could be in or adjacent, as described in the Regulation. He further testified during cross-examination that the premises could be an outdoor dining area surrounded by four walls with no roof. Finally, he testified that it did not require a patio licence to comply with the Regulation, and that this premises did not require a patio licence at all. He also conceded that the Regulation made no mention of the word "patio" even though he focussed entirely on patios when he testified in chief that he did not think The Crooked Cue qualified as an outdoor space.

[325] Officer Bazger testified that his second visit to The Crooked Cue was to serve the Summons on Mr. Pappas on the street level. It appears that this Summons was for failing to comply with an order made during an emergency, contrary to s.7.0.11(1)(c) of the EMPCA, Order under Subsection 7.0.2(4) of the Act - Stage 2 Closures, O. Reg. 263/20. The charge of failing to comply with an order made during an emergency is properly confirmed in court, and the jurat for it is proper, for the record. However, Officer Bazger never provided any evidence that would support the underlying regulatory order that The Crooked Cue is said to have breached.

[326] I find that Officer Bazger's testimony was shaken substantially during his cross-examination, including his admission that what constitutes an outdoor dining area was entirely subjective, that he had never been given any objective guidance as to what is an outdoor dining area, and his agreement with defence counsel's question that the liquor licence was irrelevant to the charge. He also had some credibility issues when he changed his testimony about whether or not he and the MLS officers were wearing masks at the time of the inspection of The Crooked Cue, an admission he was only prepared to make after observing the video of this inspection and being questioned about it in detail (Exhibit 5).

[327] Moreover, he did not form the opinion to lay the charge at the time of his inspection, but went back to his office and consulted with his manager, Mr. Da Silva, who did not testify at this trial. It is not clear why Officer Bazger laid the charge. Given the significant inconsistencies and admissions against interest made during his testimony, his evidence does not support the actus reus of this charge beyond a reasonable doubt.

[328] I have also listened carefully to the testimony of Mr. Sylvanus Thompson.

[329] Mr. Thompson was at times an evasive witness. When asked if the Skydome would qualify, he responded that he had never been there. His evidence about The Crooked Cue, and whether or not it would qualify once the Regulation was amended to include retractable roofs, changed completely from indicating that he knew this to be true, to his claiming a lack of knowledge on this issue.

[330] Mr. Thompson testified that he conducted only one site visit at the corporate defendant's location on Bloor St. West in Toronto, which occurred on or about June 18, 2020, prior to the Regulation regarding restaurant reopenings coming into force. He clearly stated that this site visit was not an inspection. Defence counsel argued strenuously throughout this trial that his refusal to conduct another site visit when the premises was open, in order to determine whether or not it fell within the definition of "outdoor in or adjacent to" was unreasonable and unfair. No explanation was provided by Mr. Thompson for his unwillingness to view the premises when open, however.

[331] Mr. Thompson's testimony about why it did not qualify as an outdoor dining area was nevertheless very telling. He testified that The Crooked Cue did not qualify as an outdoor dining area, from his site visit, because the requirements at the time for outdoor dining, a patio, if covered by a roof, had to have at least two open sides to the outside, and the defendant's patio had just one open side.

[332] Based on this testimony, I find that Mr. Thompson was relying on the narrower guideline, which he described as the "guidance for the food industry" document, and not the wording of the Regulation itself, when he determined that the defendant did not comply with the Regulation. This guideline itself was fluid, and the number of sides of an outdoor dining area required to be open to qualify under it changed from three to two, based on the email exhibits (Exhibits 7 and 8).

[333] Although Mr. Thompson refused to enter the premises of The Crooked Cue while open, he appears to have relied on the personal opinions of various others regarding the defendant, including Mr. Sharma, Ms. Stoltz and Dr. Mowat, whom he consulted by email, as demonstrated by the exhibits at this trial. None of those individuals whom he appears to have consulted testified at this trial. While Dr. Mowat was providing advice to Public Health, the others appear to work in other departments of the City of Toronto. In any event, the information provided at this trial about the advice of Dr. Mowat is hearsay.

Did Mr. Thompson's Refusal to Conduct a Site Visit or Inspection When The Crooked Cue was Open Violate Procedural Fairness?

[334] It was very clear from his evidence that this site visit took place when The Crooked Cue was closed, after hours, by observing it from the street level. He testified that he could see the patio from the back and the front street level. At the time of this visit, the Regulation was anticipated but not yet in place.

[335] Nevertheless, although the forthcoming Regulation did not state this, he concluded that it did not qualify since in his view, it was an outdoor dining area with a patio and only one side open, and that if a premises had a roof, it must have at least two sides open.

[336] Mr. Thompson testified that he called the owner of The Crooked Cue and communicated his opinion that the premises did not meet the requirement for outdoor dining. Mr. Pappas sent him an email in response dated June 19, 2020 (Exhibit 6), expressing his frustration at this decision, based on Mr. Thompson's opinion that the premises did not have two walls open.

[337] Mr. Thompson further testified in chief that he had been assisted in developing the “guidance for the food industry” document that included a section on patios and indicated some requirements. One of those requirements was to have at least two open sides. He described it as follows (Transcript, August 9, 2022, at p. 107):

...there was a specific section relating to patios, right with a number of requirements, and one of the requirements was that for them to qualify as an outdoor dining area they had to have at least two open sides, sides completely without anything, if the patio is covered. And in that document they - that document was clearly communicated to the industry, it was posted on the City's website, it was sent to a Business Association, it was sent to the Restaurant Associations, and to share as best as we could with the general public. So, that was the guidance for the industry prior to the re-opening, so therefore everyone would get a chance to know what the requirements were. [emphasis added]

[338] Since defence counsel objected to this question and answer, the Prosecutor retracted and rephrased the question. In any event, this guidance document was never identified during his testimony, nor did he read it out, nor was it made an exhibit at this trial. The opinion expressed by Mr. Thompson to the owner of The Crooked Cue, prior to the passage of the Regulation, was based on a direction he stated that he had received from the Medical Officer of Health. This direction was not disclosed to defence counsel, nor was it made an exhibit at this trial, either. Thus, I am making a finding of fact that his evidence about this direction from the Medical Officer of Health is hearsay and I am giving it no weight.

[339] In support of this finding of fact, I refer directly to the email sent to Mike Major by Mr. Thompson, dated June 19, 2020 (Exhibit 8), which clearly indicates that Mr. Thompson had been discussing the number of sides which would be permittable with Dr. Mowat, reducing it from three to two, but that The Crooked Cue did not satisfy the public health requirements.

[340] In closing, the Prosecutor relied upon s.4(2) of the Regulation, under General Compliance, which states:

The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

[341] The Prosecutor argued that since Mr. Thompson was the Associate Director with Toronto Public Health at the time, he had the authority to act under this provision, which provided clear language to delegate such authority. She submitted that this provision permitted him to coordinate and communicate guidance regarding any gaps in the legislation.

[342] In terms of statutory interpretation, she argued that any conflict cannot be accepted if it leads to an inconsistency with the legislation or leads to an illogical conclusion such that it becomes enforceable. As she put it, it cannot allow business owners to use their own subjective sense of the outdoors and COVID exposure risk, when the purpose of the EMPCA is to temporarily place restrictions and prohibitions on how people interact with a view to limiting transmission.

[343] In particular, she relied upon Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, at para.6 (appeal since dismissed at Ontario v. Trinity Bible Chapel et al., 2023 ONCA 134), to support her argument that measures taken during the COVID-19 pandemic cannot be viewed with the benefit of hindsight, since the court cannot be "an armchair epidemiologist". Thus, she submitted that this case is one in which greater deference should be afforded to government decision-making.

[344] The Prosecutor argued that Mr. Thompson was clear in his testimony that the public guidelines communicated the requirement for two sides to be open, and that Mr. Pappas, as the owner, had been advised by both Mr. Thompson and Dr. De Villa, that his establishment did not qualify, but he was unsatisfied with Mr. Thompson's decision and explanation.

[345] After careful review of all of the evidence, I find that Mr. Thompson based his "opinion" that The Crooked Cue did not comply with the forthcoming Regulation b0ased on a fluid policy guideline instead of relying on the wording of the Regulation itself. Mr. Thompson communicated his "opinion" orally to Mr. Pappas over the telephone on one occasion, prior to the promulgation of the Regulation in question. He never advised the defendant that this should be construed as an enforceable regulatory order within the purview of the EMPCA or this Regulation.

[346] I find as a matter of fact that Mr. Thompson conducted his only site visit in advance of the Regulation's passing from the street level, even though the premises is on the second floor, and did so while it was closed, since he had already concluded that it would be in violation of the policy guideline, even without seeing it.

[347] The actual wording of the Regulation, did not require the "outdoor area in or adjacent" to be a patio, and the stated assumptions about patios made by both Officer Bazger and Mr. Thompson that the premises needed to be a patio were ultra vires their authority.

[348] I am also not satisfied that Mr. Pappas' phone calls with Mr. Thompson and Dr. De Villa constituted a regulatory order within the meaning of s.4(2) of the Regulation. In Mr. Thompson's own testimony, he told Mr. Pappas that it was "his opinion" that the premises did not comply with the yet-to-be promulgated regulation, without reducing this decision to writing. The phone call with Dr. De Villa is based entirely on Mr. Pappas' own testimony since he pursued a phone call with her. While her reply to him is hearsay, Mr. Pappas indicated that Dr. De Villa said it was out of her hands and up to MLS. There is no other evidence before me about this phone call. Again, her response in this call is hearsay, and nothing was reduced to writing.

[349] These fluid policy changes made behind the scenes were significant in the decision to charge the defendant, since Officer Bazger testified he conducted one inspection, and went back to the office to consult with his manager for guidance about whether or not the defendant ought to be charged. During his cross-examination, Officer Bazger conceded that the defendant did not need a patio licence to comply with the Regulation. He also conceded during cross-examination that the defendant's premises could be considered an outdoor dining area when the retractable roof was open and the floor-to-ceiling window was open. Nevertheless, he was instructed to lay the charge.

Issues Regarding Statutory Interpretation:

[350] Both the prosecutor and defence counsel agree that the phrase, "in or adjacent to the place of business" is a key phrase that requires statutory interpretation.

[351] The Regulation (Exhibit 3), at s.1(1)1 required:

Patrons must be served,

i. through take-out, drive-through or delivery service, or ii. at an outdoor dining area that is, in or adjacent to the place of business, and configured to ensure physical distancing of at least two metres between patrons seated at different tables.

[352] Defence counsel argued strenuously that this Regulation did not include a definition of this key passage. This Regulation was amended shortly after the defendant was charged to include a definition that included retractable roofs, in order to include establishments such as The Crooked Cue. He argues that this should have rendered this charge moot.

[353] The Prosecutor argued strenuously that although this Regulation was amended to include a definition that included retractable roofs, that this amendment could not apply to the charge herein, because the Regulation cannot be interpreted retroactively.

[354] I agree with the Prosecutor that the amendment to the Regulation made very shortly after The Crooked Cue was charged that permitted retractable roofs is neither retroactive nor retrospective in nature. Given its plain wording in the present tense, I must interpret the Regulation as it was stated at the time of the alleged offence, June 27, 2020. (See: s.4 of the Interpretation Act, R.S.O. 1990, c.I-11; and Driedger, E., “Statutes: Retroactive Retrospective Reflections”, The Canadian Bar Review, Vol. LVI, 1978, at p. 264, found online at 1978Docs 18).

[355] The Canadian Oxford Dictionary, 2nd. edition, Oxford University Press, Toronto: 2004, offers the following definition of "outdoor" at p.1103:

outdoor adjective 1 done, existing, or used out of doors. 2 fond of the open air (an outdoor type).

[356] The Canadian Oxford Dictionary also defines the word, "in", when used as a preposition at p. 764, as follows:

in ∙ preposition 1 expressing inclusion or position within limits of space, time, circumstance, etc.(in Canada; in bed; in the rain) 2 during the time of (in the night; in 1989). 3 within the time of (will be back in two hours). 4 a with respect to (blind in one eye; good in parts). b as a kind of (the latest thing in luxury). 5 as a proportionate part of (one in three failed). 6 with the form or arrangement of (packed in tens; falling in folds). 7 as a member of (in the army). 8 concerned with (is in politics). 9 as or regarding the context of (there is something in what you say). 10 within the ability of (does he have it in him?). 11 having the condition of; affected by (in bad health; in danger). 12 having as a purpose (in search of; in reply to.). 13 by means of or using as material (drawn in pencil; modelled in bronze). 14a using as the language of expression (written in French). b (of music) having as its key (symphony in C). 15 wearing as dress (in blue, in a suit). 16 with the identity of (found a friend in Mary). 17 (of an animal) pregnant with (in calf). 18 into (with a verb of motion or change; put it in the box; cut it in two). 19 introducing an indirect object after a verb (believe in; engage in; share in). 20 forming adverbial phrases (in any case; in reality; in short). 21 in the process of; in the act of (in climbing the wall he skinned his knee)...

[357] The Canadian Oxford Dictionary also defines the word, "adjacent", at p. 16:

adjacent adjective (often foll. by to) 1 lying near or adjoining. 2 Math. (of angles) sharing a vertex and one common line.

[358] Based on this definition of "outdoor", I find that when the retractable roof and the floor-to-ceiling windows were open, The Crooked Cue's dining area directly below it was "outdoors" since it existed as such.

[359] Based on these definitions of "in", and "adjacent", I find that the first definition of the word "in" is the most appropriate to this context, which is 1 expressing inclusion or position within limits of space, time, circumstance, etc. (in Canada; in bed; in the rain). Thus, the issue is whether the outdoor area is within the place of business.

[360] The Supreme Court of Canada has frequently stated the modern approach to statutory interpretation, outlined by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87 is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, as per Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559 at paragraph 26; and Indalex Ltd., Re, [2013] 1 S.C.R. 271, at paragraph 136.

[361] I rely upon R. v. McIntosh, [1995] 1 S.C.R. 686 at paragraph 18, where the majority held as follows:

In resolving the interpretative issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the “golden rule” of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 29).

[362] Based on my interpretation of the words, "in" and "adjacent", I find that that the outdoor dining area in question was clearly "in" the place of business.

[363] As Officer Bazger conceded himself, when the retractable roof and floor-to-ceiling window were open, it was an "outdoor dining area".

[364] Thus, I find that based on the evidence given by the prosecution's own witnesses, the actus reus of the offence was not made out beyond a reasonable doubt.

[365] The prosecutor submitted in her closing argument that the decision to charge the defendant was delegated to public health in any event, as per s.4(2) of the Regulation. However, there is nothing in the Act or the Regulation that permits such a charging regulatory order to be made orally even by a member of the Public Health team, and I find that there is no evidence to establish that such a written regulatory charge or order was ever made in the first place.

[366] The Regulation was amended on July 2, 2020, which revoked ss.1(1) of Schedule 2 to the Regulation, and replaced it. This amendment included s.1(1)(iv), which amended the requirement to include an outdoor dining area with a retractable roof which is retracted and one full side of the outdoor dining area to be open to the outdoors.

[367] Alternatively, I find no definitive evidence that the original order was made in writing and served on the defendant prior to the service of the summons alleging a breach on June 27, 2020. The July 2, 2020 amendment was passed prior to the charge before me being sworn and the summons confirmed. As such, the Regulation in place at the time of this charge of failing to comply with an order was the amended version, and as such, also fails.

ORDER:

[368] For the reasons set out, I hereby dismiss this matter.

Dated at Toronto, this 13th day of April, 2023.

Mary A. Ross Hendriks