Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736
CITATION: Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736
DIVISIONAL COURT FILE NO.: 462/20
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, D.L. Corbett and Nishakawa JJ.
B E T W E E N:
WORK SAFE TWERK SAFE
Naomi Sayers, for the Appellant
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT
S. Zachary Green, Padraic Ryan and
OF ONTARIO AS REPRESENTED BY
Emily Owens, for the Respondents
THE SOLICITOR GENERAL and
MINISTRY OF HEALTH
Respondents
Heard by ZOOM: Oct. 4, 2021
REASONS FOR DECISION
ASTON j.:
[1] Work Safe Twerk Safe describes itself as an "advocacy group that represents the interests of strippers." It brings this judicial review application to challenge certain regulations enacted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c.17. It contends that the impugned regulations are inconsistent with the purpose of the enabling legislation, that there was a denial of procedural fairness in promulgating the regulations and that the regulations violate the rights of strippers under sections 2(b), 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms in a manner that is not justified under s.1 of the Charter. The application seeks various consequential declarations.
[2] After hearing preliminary submissions, we announced our decision to dismiss the application for mootness, without addressing the merits, with these reasons to follow.
[3] The regulations in issue are s.19.1 of O.Reg. 364/20 "Rules for Areas in Stage 3" [the "September Regulations"] which came in force September 26, 2020 and s.26.1 of O.Reg. 263/20 "Rules for Areas in Stage 2" [the "October Regulations"] which came into force October 10, 2020. These regulations temporarily closed strip clubs in areas of Ontario located in Stage 3 or Stage 2. Both regulations were revoked and replaced in November 2020, after this judicial review application was initiated. There were other subsequent replacement regulations, culminating in the July 9, 2021 amendment to O.Reg. 364/20 allowing strip clubs throughout Ontario to operate for all purposes, provided they abide by certain safety requirements such as capacity limits, distancing requirements, screening of patrons, contact tracing and preparation of a safety plan.
[4] The respondent submits that the application has become moot and the court should decline to hear it on the merits. The Notice of Application and the Notice of Constitutional Question only identify the regulations that were in force at the time the judicial review application began, and those regulations are no longer in force.
[5] The repeal of impugned legislation is a classic example of mootness. This principle can be traced back more than a hundred years to the Supreme Court of Canada's decision in Moir v The Corporation of the Village of Huntington, (1891), 1891 36 (SCC), 19 S.C.R. 363 in which the repeal of a municipal by-law foreclosed any challenge to the by-law.
[6] Any adverse effects caused by the impugned regulations on the lives and livelihoods of the applicant's members ended when those regulations were revoked and replaced. The issues raised by the application have become academic.
[7] I do not agree with counsel for the applicant that the possibility of new discriminatory regulations in the future keeps the issues alive. The validity of any new regulation would have to be determined on the facts and circumstances at that time. There is no basis in the record to suppose that the regulations were repealed and replaced to evade judicial review in this court. Quite the contrary, the COVID-19 crisis has led the government to revisit its response to the public health crisis on an ongoing basis, as circumstances have changed, and the changes to regulations affecting establishments affected by the impugned regulations reflect this pattern.
[8] In its factum the applicant advances a claim for damages for alleged Charter violations. An unresolved claim for damages might be considered as an outstanding issue that is not defeated by the repeal of the impugned regulations. However, that claim for damages was not made in the application itself, nor in the Notice of Constitutional Question. In short, it is not properly pleaded. Nor is it apparent how the corporate applicant could claim damages on behalf of its individual members or how the Divisional Court would have jurisdiction to award damages.
[9] The question is whether the court should exercise its discretion to hear the case on the merits even though there is no continuing "live controversy" (Borowski v Canada (AG), 1989 123 (SCC), pp 353-356). The onus is on the applicant to demonstrate why the court should make an exception to the general rule. The applicant has not identified a cogent reason for doing so.
[10] Moreover, in this case, where the decision maker is the executive branch of the legislature, the court must keep in mind the need to respect the legislative process. This weighs against any temptation to delve into the merits of the case. The court's role is adjudicative. To pronounce judgments in the abstract, when the actual claims of the applicant no longer exist, runs the risk of encroachment on the role of the legislative branch (Stewart v Office of the Independent Police Review Director, 2013 ONSC 7907 at paras 30 and 45).
Conclusion
[11] I agree with the respondent that the issues raised in the application are moot and I would decline to exercise discretion to hear it. Therefore, I would dismiss the application without any determination on the merits.
Costs
[12] The respondent asks for costs fixed at $14,760. We agree that the respondent is entitled to costs, and that public interest litigants are not necessarily immunized from a costs award. However, taking into account that the applicant is an equality seeking group of marginalized individuals advancing public interest issues, I would fix the costs at $5,000, all inclusive.
Aston J.
I agree: _______________________________
D.L. Corbett J.
I agree: _______________________________
Nishakawa J.
Released: October 13, 2021
CITATION: Work Safe Twerk Safe v. Ontario (Solicitor General), 2021 ONSC 6736
DIVISIONAL COURT FILE NO.: 365/19
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, D.L. Corbett and Nishikawa JJ.
BETWEEN:
Work Safe Twerk Safe
Applicant
- and –
The Queen in right of Ontario as represented by the Solicitor General and Ministry of Health
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: October 13, 2021