Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Applicant
AND:
ADAMSON BARBECUE LIMITED AND WILLIAM ADAMSON SKELLY, Respondents
BEFORE: Kimmel J.
COUNSEL: Ananthan Sinnadurai, Andi Jin and Adam Mortimer, for the Applicant
William Adamson Skelly, appearing on behalf of the Respondents. Also in attendance, W. Calvin Rosemond, criminal counsel for the Respondent William Adamson Skelly
HEARD: December 1, 2020
SCHEDULING ENDORSEMENT
1The applicant seeks an order under s. 9 of the Reopening Ontario (A Flexible Response to COVID-19) Act, S.O. 2020, c. 17 (the “ROA”) restraining the respondents from contravening Regulation 82/20 (the “Stage 1 Regulation”). The restraining order is stated by the applicant to be required, for among other reasons, to prevent ongoing and future breaches of the Stage 1 Regulation in the interests of public health.
2A second Rule 50.13 case conference was held on December 1, 2020 to discuss the scheduling of this application. An earlier case conference had been convened on Sunday November 29, 2020 to consider the applicant’s request for an urgent hearing. The urgency for this hearing is said to arise from recent charges against Mr. Skelly for provincial offences under the ROA and the Health Protection and Promotion Act and events that took place last week at one of the Toronto restaurants operated by the respondents that resulted in Mr. Skelly’s arrest.
3The applicant was not required to give notice to the respondents of the order sought, but it did so, albeit with the intention of proceeding on an abbreviated timetable. The court’s endorsement following the first case conference included the following direction:
Absent a consent interim restraining order, having regard to the nature of the relief sought and the urgency that has been indicated, I would schedule at least a preliminary hearing this week. I have suggested that the parties try to come to an agreement on the terms of a consent interim without prejudice order under s. 9 of the ROA pending a hearing date to be scheduled in the time frame suggested by the respondents, and to try to reach an agreement as well on a timetable for the exchange of application materials, cross-examinations (if necessary) and the delivery of factums in the interim. Failing such agreement, I will timetable an abbreviated schedule for the delivery of materials and a hearing to take place later this week.
4At the conclusion of the first case conference the second case conference was scheduled and the court’s endorsement indicated that, at the second case conference:
…a hearing date and timetable for the delivery of materials for the application will be determined by me, depending on whether an interim without prejudice arrangement has been reached or not. I will also make timetabling directions, which will take into account what the parties have agreed to, or proposed to each other.
5Two timelines were under consideration, leading to either a hearing date this week, as the applicant was requesting, or a hearing during the week of December 14, 2020 which is what the respondents had proposed. The court had suggested that the parties consider agreeing to an interim without prejudice order so that the hearing could be scheduled for the week of December 14, 2020. As of the December 1, 2020, no such agreement had been reached.
6The court was advised at the second case conference that the respondents were not in a position to negotiate a consent without prejudice interim order and would not be ready to present their challenges to this application this week. Mr. Skelly asked for more time to retain counsel to represent the respondents but indicated that he could not commit to any time line until counsel had been retained.
7When faced with the prospect of the application proceeding this week, the December 14, 2020 date was suggested again, under the reservation about the availability of the respondents’ counsel which was currently unknown. The respondents do not consider the matters raised on this application to be urgent and suggest that the existing regulations and Mr. Skelly’s bail conditions impose sufficient restrictions to alleviate any immediate concerns.
8The applicant maintains its position that the application is urgent. The applicant points to the conduct of the respondents that forms the basis of this application and is not content to depend upon voluntary regulatory compliance. It is also concerned that the bail conditions are not entirely aligned in scope, applicability or duration with the restraining order sought. Absent an interim order, the applicant maintains that the application should be scheduled to be heard this week, noting that it has the right to proceed ex parte (without notice).
9The applicant must meet its onus to obtain the order it seeks whether or not the respondents participate at the hearing. Restraining orders and injunctions are often sought without notice on the basis that the responding parties will have an opportunity to make their objections and challenges afterwards. Given that the respondents are not prepared to respond this week and are not animated by any sense of urgency to respond, I have directed the application to proceed on Friday December 4, 2020 as if it was ex parte. I have indicated that if an order is made following this hearing, I expect that it will provide for some mechanism for the respondents to come-back on a timely basis to raise their challenges and seek to have it set aside, varied or terminated if they are so inclined (the “come-back provision”).
10Thus, while the respondents are on notice and have had the option to respond to and participate in the hearing of the application, I am not requiring them to do so within this time frame. If an order is granted following the hearing, the respondents will be given a further opportunity to raise their challenges after having sought further legal advice, so that their challenges can be informed by that advice.
11The ex parte hearing of this application will proceed at 10:00 a.m. on Friday December 4, 2020. It will be a virtual hearing. The zoom co-ordinates will be provided by the motions office once they have been arranged. The respondents and their counsel are welcome to appear at the hearing should they wish to do so, without any obligation on them to participate should they want to reserve all of their arguments to a later date. All parties and their counsel who might wish to participate in the hearing will be asked to provide their co-ordinates to the court office so that they are given participant-access to the hearing.
12Instructions have previously been provided regarding the filing of materials and their addition to the established sync.com platform that will enable the court to access them. Although the application is proceeding as if ex parte, the respondents will still be provided with service notice of any new materials that the applicant uploads onto sync.com for this hearing, in accordance with the court’s last endorsement. The sync.com platform has now been configured to allow the respondents to upload materials as well. They too are to comply with the court’s last endorsement regarding service notice and filing of any materials. The parties may also receive an invitation to upload the application materials to Caselines and should follow the accompanying instructions in that event.
13The applicant’s factum and book of authorities is to be uploaded by 5:00 p.m. on Wednesday December 2, 2020. The applicant’s proposed draft order including a come-back provision for the respondents shall be uploaded by 12:00 noon on Thursday December 3, 2020. If the applicant intends to use a compendium at the hearing of the application, that should be uploaded by no later than 9:00 a.m. on the day of the hearing.
14If the respondents retain counsel and wish to re-engage in the negotiation of a without prejudice consent interim order and work towards a hearing date that they will participate fully in during the week of December 14, 2020, that option remains available to them and is not foreclosed by this endorsement. Further directions will be provided by the court should such an agreement be reached, with respect to scheduling, timetabling, briefing and other pre-hearing steps.
15Similarly, further directions regarding timetabling and scheduling will be provided by the court in connection with any future hearing that may be requested under the come-back provision, if an order is granted following the December 4, 2020 hearing.
Kimmel J.
Date: December 2, 2020