DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Applicant
– and –
ADAMSON BARBECUE LIMITED AND WILLIAM ADAMSON SKELLY Respondents
Ananthan Sinnadurai, Andi Jin and Adam Mortimer, for the Applicant
Geoffrey Pollock, Leo Ermolov, Sam Goldstein and Alexander Wilkes, for the Respondents
HEARD: December 4, 2020 by remote videoconference
Kimmel J.
reasons for decision – RESTRAINING ORDER
The Background to this Application
[1] These are unprecedented times. A state of emergency was declared under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “EMCPA”) by the Premier of Ontario on March 17, 2020 as a result of the outbreak of the highly communicable COVID-19 (coronavirus disease) that was determined to constitute a danger of major proportions that could result in serious harm to Ontarians (the “pandemic”).
[2] As part of its response to the pandemic, the Ontario government enacted the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”). The ROA continued various orders that had been made pursuant to s. 7.0.1 of the EMCPA. The ROA sets out a regulatory framework by which the government determines staged control measures to be applied to public health units across the Province. The ROA was designed to allow for a targeted approach to identify what stage a public health unit would be placed in based on epidemiological statistics, among other considerations. Ontario’s Response Framework published on November 22, 2020 describes the risk factors and priorities that the control measures are attempting to balance through the targeted approach, including:
a. Limiting the transmission of COVID-19;
b. Avoiding business closures;
c. Maintaining health care and public health system capacity;
d. Protecting vulnerable Ontarians, such as the elderly and those with compromised immune systems; and
e. Keeping schools and child-care centres open.
[3] As the number of cases of COVID-19 in the City of Toronto continued to rise in November 2020, the public health unit of the City of Toronto was placed into the Stage 1 - Lockdown Zone, under Regulation 82/20 on November 23, 2020 (the “Stage 1 Regulation”). This stage imposes the maximum control measures.
[4] While permitted to remain open, the Stage 1 Regulation means that restaurants operating in Toronto can only provide take-out, drive through or delivery services—eating inside or outside on a patio is prohibited. Persons responsible for these businesses are required to ensure the use of masks or face coverings and adherence to physical distancing requirements indoors and to prevent patrons from lining up or congregating indoors or outdoors without proper physical distancing and masks or face coverings. They also are required to have a safety plan. These are collectively the “Stage 1 control measures”.
[5] There are three Adamson BBQ restaurants: two located in the City of Toronto, and one located in Aurora.[^1] The Aurora location is not in the City of Toronto public health unit and is currently subject to different restrictions under Regulation 82/20.
[6] On November 23, 2020, the day Toronto was made subject to the Stage 1 Regulation, a posting was made to the respondents’ Instagram account @adamsonbarbecue with the written caption: “Enough is enough – we’re opening. Starting Tuesday, November 24th, the Adamson Barbecue Etobicoke location will be open for dine-in service.”
[7] True to their word, the Etobicoke restaurant opened for indoor and patio dining on November 24, 2020. It opened again on November 25 and 26, 2020 despite the various charges that were laid against the respondents under the ROA, the Toronto Municipal Code, the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”) and the Provincial Offences Act, R.S.O. 1990, c. P.33 over the course of these three days. Eventually, Mr. Skelly was arrested on November 27, 2020 and charged with mischief and obstruction of a police officer pursuant to the Criminal Code of Canada, R.S.C. 1985, c. C-46. City staff and police eventually secured the Etobicoke restaurant on November 27, 2020 by boarding up its entrances and windows from the inside and placing fencing around the property. Toronto Police had maintained a continuous presence at the location up until the hearing date.
[8] Following an urgent hearing that was convened before me on December 4, 2020 at the request of the applicant, I signed an order pursuant to s. 9 of the ROA, restraining the respondents and any other corporation under their control or direction (including Adamson Bar-B-Que Limited), their servants, employees, agents, assigns, officers, directors and anyone else acting on their behalf or who has or assumes responsibility for all or part of any business carried on by them in the Province of Ontario, from directly or indirectly, by any means whatsoever, contravening Ontario Regulation 82/20 at any restaurant owned or operated by one or both of the respondents or any corporation under their control or direction (including Adamson Bar-B-Que Limited) that is subject to Ontario Regulation 82/20.
[9] These are the reasons upon which that restraining order was made.
The Statutory Framework
[10] The Court is authorized to grant a restraining order sought by the Crown pursuant to s. 9 of the ROA:
Proceedings to restrain contravention of order
9 Despite any other remedy or any penalty, the contravention by any person of a continued section 7.0.2 order may be restrained by order of a judge of the Superior Court of Justice upon application without notice by the Crown in right of Ontario or a member of the Executive Council and the judge may make the order and it may be enforced in the same manner as any other order or judgment of the Superior Court of Justice.
[11] The Stage 1 Regulation is a continued s. 7.0.2 order to which s. 9 applies.
Urgency, Notice and the Respondents’ Position
[12] The 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 Respondents indicated that they were not prepared to respond on the abbreviated timetable proposed and contended that the urgency was alleviated by Mr. Skelly’s bail conditions, among other things.
[13] In my December 2, 2020 scheduling endorsement, Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7446, I ordered and 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”).
Thus, 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.
[14] The Respondents advised the court on December 4, 2020 that they were taking no position and did not oppose the order sought by the applicant, save and except in respect of the time for their commencement of any come-back motion and the applicant’s request for costs (the “procedural objections”).
The Test for a Statutory Injunction and Underlying Rationale
[15] This is the first time a court has been asked to grant a restraining order under s. 9 of the ROA. Statutory injunctions, either mandating or restraining regulated conduct, have been the subject of judicial consideration under other statutes. The test that has developed in the jurisprudence under those other statutes is instructive in this case.
[16] For a statutory injunction to be granted, the applicant must establish on a balance of probabilities a “clear breach” of an enactment.
[17] Although the requirements of irreparable harm and the balance of convenience that animate the test for an equitable injunction have been held not to apply to statutory injunctions, where a breach is established, the Court retains residual discretion to decline to grant an order in “exceptional circumstances”. See Retirement Homes Regulatory Authority v. In Touch Retirement Living for Vegetarians/Vegans Inc., 2019 ONSC 3401, at para. 48; see also Gavin Downing v. Agri-Cultural Renewal Co-operative Inc. O/A Glencolton Farms (“ARC”) et al, 2018 ONSC 128, at para. 110.
[18] However, where a public authority seeks injunctive relief to prevent the contravention of a law, the public interest in having the law obeyed will generally outweigh considerations such as the balance of convenience and irreparable harm. See York (Regional Municipality) v. DiBlasi, 2014 ONSC 3259 (“DiBlasi”), citing Vancouver (City) v. Zhang, 2009 BCSC 84, 92 B.C.L.R. (4th) 131, at para. 18:
This is because the legislative authority is presumed to have taken into consideration the various competing interests of the public in enacting the legislation which is being contravened; the public has a direct and substantial interest in the enforcement of the law; and open defiance of the law constitutes irreparable harm to the public interest: British Columbia (Minister of Forests) v. Okanagan Indian Band (1999), 37 C.P.C. (4th) 224, B.C.J. No. 2545 (S.C.), aff’d 2000 BCCA 315, 187 D.L.R. (4th) 664; Attorney-General for Ontario v. Grabarchuk (1976), 1976 574 (ON SC), 11 O.R. (2d) 607, 67 D.L.R. (3d) 31 (Div. Ct.).
[19] This reflects the general view that in dealing with matters of public health and welfare, it is for the policy decision makers in the Ontario legislature, not the court, to weigh the benefits to the public good and determine how to balance the individual rights with the public good: see Downing, at para. 102.
[20] The factors to be considered in determining whether to grant a statutory injunction are circumscribed. As summarized in Retirement Homes Regulatory Authority, at para. 47, there are many common law or equitable considerations that are not applicable in the context of the court’s restraint of regulated conduct:
a) The court's discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application;
b) An applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused;
c) Proof of damages or proof of harm to the public is not an element of the legal test;
d) There is no need for other enforcement remedies to have been pursued;
e) The court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable; and
f) It remains more difficult to obtain a mandatory injunction.
[21] In seeking this type of statutory injunction, the applicant is also not required to:
a. prove actual damages suffered. See College of Opticians of British Columbia v. Coastal Contacts Inc. and Clearly Contacts Ltd., 2009 BCCA 459, 98 B.C.L.R. (4th) 53, at paras. 28 and 30.
b. present “compelling evidence” that an injunction is warranted. See Newcastle Recycling v. Clarington, 2005 46384 (Ont. C.A.), at para. 32.
Analysis
There Has Been a Clear Breach of the Stage 1 Regulation (82/20)
[22] The respondents were charged with over 20 provincial offences between November 24 and 27, 2020 in relation to violations of the ROA, the HPPA and the Toronto Municipal Code.
[23] The Etobicoke restaurant continued to offer indoor and patio dining in defiance of the Stage 1 Regulation from November 24, 2020 until the premises were boarded up and secured by police on November 27, 2020. Furthermore, the Stage 1 control measures were not implemented or enforced by persons responsible for the restaurant business operating at this location, in contravention of the Stage 1 Regulation. Various orders made by the medical officer of health under s. 22 of the HPPA were also openly disregarded at this location.
[24] Adamson Barbecue announced on social media on November 23, 2020 that “Starting Tuesday, November 24th, the Adamson Barbecue Etobicoke location will be open for dine-in service” and re-affirmed on November 25, 2020, “We’re not closing.” After charges were laid, the social media messaging remained unchanged: “Etobicoke location will continue to open for lunch! Dine-in, take-out or patio. Tuesday to Sunday from 11 am.” Even after being locked out of the Etobicoke restaurant on November 26, 2020, the respondents broke in and continued to offer indoor dining services.
[25] It is incontrovertible that there has been a clear breach of the ROA Stage 1 Regulation at the Adamson Barbecue restaurant Etobicoke location. The Stage 1 control measures were not being adhered to and no persons responsible for the business were attempting to ensure compliance.
[26] Section 9 of the ROA provides that the contravention by any person of a continued section 7.0.2 order may be restrained. Section 9 does not require the breach to be continuing or ongoing at the time the injunction is granted. To do so would defeat the purpose of the ROA that is preventative in nature. The restraint is of the contravention. The respondents’ intention to defy the Stage 1 Regulation has been made clear and is based on their ideological opposition to it. The past actions of the respondents demonstrate a clear breach of breach of a continued s.7.0.2 order and their express intentions are an added justification for restraining the future contravention of the continued section 7.0.2 order under s. 9.
[27] Section 9 of the ROA is an additional tool, over and above other legislative and non-legislative recourse, to ensure compliance with the ROA, providing for the issuance of a restraining order “[d]espite any other remedy or penalty” available. The Crown is not required to demonstrate that other remedies have proven to be ineffective, although that has been established here. The open defiance of the Stage 1 Regulation and the various enforcement efforts of the medical officer of health under the HPPA, and apparent lack of any deterrent effect of the charges and penalties faced as a result of that defiance, makes this an exemplary case for s. 9 injunctive relief.
[28] Some courts in Ontario and British Columbia have allowed respondents opposing the grant of a statutory injunction to answer the applicant’s contention of a clear breach by showing an “arguable case” or “arguable defence” as to why they are not in breach. See DiBlasi, at para. 63; Saanich (District) v. Island Berry Co., 2008 BCSC 614, 82 B.C.L.R. (4th) 390, at para. 12.
[29] The Crown argues that those cases are distinguishable from this one on various grounds but, in any event, the flagrant, intentional and blatant defiance of the Stage 1 Regulation, recorded in public statements on social media, renders any prospect of an arguable defence academic in this case.
[30] The onus of raising an arguable defence, if available, is on the respondents. They have been told that they will have the opportunity to bring a motion to vary or discharge any injunction that is granted at a come-back hearing. They will bear the onus of overcoming the finding of the clear breaches of the Stage 1 Regulation if they seek to argue at the come-back hearing that they have an arguable defence. The Crown will be at liberty to argue that this is not an available answer in the circumstances of this case.
[31] It is not a defence for a respondent to state that their contravention is in pursuit of delivering an important message to the public: see Zhang, at para. 20. Counsel for the respondents characterize their conduct as an act of civil disobedience to challenge the legislation. This court does not condone civil disobedience of public health and welfare regulations.
[32] The respondents did not challenge the constitutionality, validity, necessity or policies underlying the Stage 1 Regulation at the hearing before me on December 4, 2020. They say that they are considering whether to do so. For immediate purposes, the court is in a similar position to what was observed in Downing, at paras. 89-90:
As the Ontario Court of Appeal stated in R. v. Schmidt:
... However, provided that the legislature has acted within the limits imposed by the constitution, the legislature’s decision to ban the sale and distribution of unpasteurized milk to protect and promote the public health in Ontario is one that must be respected by this court.
The question of whether either or both statutes violate one or more Ontarians of a constitutionally protected right or freedom is not before this court.
[33] No arguable defence was raised that could detract from my finding that there has been a clear breach of the Stage 1 Regulation for purposes of the injunction I granted on December 4, 2020.
No Exceptional Circumstances
[34] If a clear breach of an enactment has been established, the court has residual discretion to refuse to grant the injunction in “exceptional circumstances”. These circumstances, outlined in Downing at para. 113, may include:
a. The offending party has ceased the activity and/or has provided clear and unequivocal evidence that the unlawful conduct will cease;
b. The injunction is moot and would serve no purpose;
c. There is a right that pre-existed the enactment that was breached;
d. There is uncertainty regarding whether the offending party is flouting the law;
e. The conduct at issue is not the type of conduct that the enactment was intended to prevent.
[35] The court in Zhang, at para. 19, described the relevant factors to consider in the exercise of the court’s discretion to refuse an injunction to enforce public rights slightly differently to include:
…the willingness of the party to refrain from the unlawful act; the fact that there may not be a clear case of “flouting” the law because the party has ceased the unlawful activity; and whether there is an absence of proof that the activity was related to the mischief the statute was designed to address: British Columbia (Minister of Environment, Lands & Parks) v. Alpha Manufacturing Inc. (1997), 1997 4598 (BC CA), 150 D.L.R. (4th) 193, 96 B.C.A.C. 193.
[36] The onus and exceptional nature of this residual discretion was emphasised by Perell J. in College of Physicians and Surgeons of Ontario, 2018 ONSC 4815, at para. 43:
Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude.
[37] The respondents have not attempted at this stage to demonstrate any exceptional circumstances. The Crown appropriately raised them for my consideration since I had directed that the application proceed as if it was ex parte. While they are not all relevant in this case, I will address the types of exceptional circumstances that have been considered in other cases briefly, in turn. I am satisfied that none of them would cause me to exercise my residual discretion to refuse to grant the restraining order in this case:
a. The respondents have not demonstrated a willingness to voluntarily cease or refrain from their offending activities. The breaches of the Stage 1 Regulation at the Etobicoke Adamson Barbecue location only stopped when the police forcibly took control of, secured and surrounded the premises. That was not voluntary. Nor are the bail conditions for Mr. Skelly, which cover some but not all of the offending activities, voluntary or permanent. The respondents have not provided any indication that their activities in breach of the Stage 1 Regulation will cease; their past conduct and statements are to the contrary.
b. As long as Regulation 82/30 and Ontario’s Response Framework to the COVID-19 pandemic remain in place, the injunction cannot be said to be moot. This Framework requires compliance with the control measures applicable to whichever stage the Adamson Barbecue locations in Ontario have been designated under Regulation 82/20, which may change from time to time.
c. This is not a case about a pre-existing right that was breached.
d. There is no uncertainty about the respondents’ flouting of the Stage 1 Regulation – their social media statements are clear and unequivocal; their own lawyer describes their conduct as acts of civil disobedience.
e. Disregarding the Stage 1 control measures is precisely the conduct that the ROA and Stage 1 Regulation was intended to prevent. More importantly, the spread of COVID-19 is the harm the Stage 1 Regulation is attempting to prevent and disregarding the Stage 1 Control Measures undermines that objective. The Crown argues that proof of the spread of COVID-19 from these breaches is not required; rather it can be inferred that there were transmissions of COVID-19, given the crowds of people who attended the Etobicoke Adamson Barbecue location on November 24, 25, 26 and 27, 2020 and that most were observed not to be wearing masks or keeping 2 metres apart, contrary to all municipal, Provincial and Federal public health directives. I am satisfied that at least the risk of transmission was increased by this conduct, and that is the harm that the Stage 1 Regulation is intended to prevent.
[38] The public health objectives of both the ROA and the HPPA are clear and obvious.
[39] There is evidence in the record before me about the epidemiological and other bases for the Stage 1 Regulation under the ROA. Many of the charges laid were as a result of, or in conjunction with, the respondents’ failure to comply with orders and directions made under ss. 22 and 24 of the HPPA. A medical officer of health can only make such orders and directions based on a medical opinion that there is a health risk due to a communicable disease necessitating the specified requirements, which were ignored by the respondents in this case.
[40] In considering whether to grant a statutory injunction under public welfare legislation, the court is mandated to give a broad and purposeful statutory interpretation that facilitates the intention and purpose of the legislation. See Downing, at para. 100.
[41] I have no hesitation in granting the injunction in this case, having regard to the public health objectives of the ROA.
The Order Granted
[42] On December 4, 2020 I signed an order pursuant to s. 9 of the ROA, restraining the respondents and any other corporation under their control or direction (including Adamson Bar-B-Que Limited), their servants, employees, agents, assigns, officers, directors and anyone else acting on their behalf or who has or assumes responsibility for all or part of any business carried on by them in the Province of Ontario, from directly or indirectly, by any means whatsoever, contravening Ontario Regulation 82/20 at any restaurant owned or operated by one or both of the respondents or any corporation under their control or direction (including Adamson Bar-B-Que Limited) that is subject to Ontario Regulation 82/20.
[43] The Stage 1 Regulation places the responsibility on those persons responsible for a business, or part of a business, to ensure that the Stage 1 control measures are complied with. The Adamson Barbecue restaurants operate through other individuals, beyond Mr. Skelly. The regulation extends to the class of persons responsible for the business and my injunction extends to that same class of prospective persons who may be responsible for any part of the business carried on at the Adamson Barbecue restaurants. The Crown sought a broader order that could have been read to extend to patrons of the restaurants, which I was not persuaded was justified or supported by the language of the regulation.
[44] The come-back hearing will be scheduled if, and after, the respondents deliver a notice of motion to vary or discharge the restraining order that I granted on December 4, 2020. The respondents had originally asked for the hearing to be held the week of December 14, 2020 to allow time for their response. At the December 4, 2020 hearing they asked for a deadline of January 15, 2021 for their notice of motion, with a hearing to be scheduled at some point thereafter. In the alternative they suggested 21 days from December 4, 2020 which landed on Christmas Eve so that was revised to December 29, 2020, the day after Boxing Day.
[45] While the injunction is in place in the meantime, I agree with the Crown that, if there is going to be a motion to vary or discharge the injunction, it needs to move forward in a timely manner. If there is to be a legal or constitutional challenge to the ROA, it is not in the public interest for that to be drawn out. Taking six weeks to prepare a notice of motion is not timely, in my view. Thus, I have directed the respondents to deliver their notice of motion by December 29, 2020, after which a hearing date and timetable will be set for their come-back motion. Both sides agree that the first step should be the delivery of a Notice of Motion so that the issues can be identified before a full briefing schedule and hearing date are set.
[46] The applicant asked for its costs. The Crown argued that this was not actually an ex parte motion because they had provided notice, even though the court, by an earlier endorsement, had permitted the respondents not to respond. The respondents did not oppose the relief sought (except to raise procedural objections). The Crown had an onus to meet, irrespective of any position of the respondents. If the Crown had proceeded ex parte, it concedes that it would not have been entitled to costs by virtue of Rule 57.03(3).
[47] Although the Crown did provide notice, the respondents’ participation has been deferred until the come-back motion. I have determined that any costs that might be recoverable by the applicant for this motion should be addressed in the context of that come-back motion if it proceeds.
[48] The court’s practice is to fix the costs of each step in a proceeding if possible. The applicant represented to the court that its bill of costs on a partial indemnity scale for the application amounted to $19,675.00. I can appreciate that there was a need for three counsel on a file such as this. This amount is within the realm of expected costs for an urgent application of this nature, although perhaps a little on the high side having regard to comparable cost awards that I was directed to in contested proceedings.
[49] In the exercise of my discretion under Rule 57 and section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and having regard to the applicable factors, I fixed the amount of the applicant’s costs of this application up to and including December 4, 2020 at $15,000.00.
[50] An order reflecting the above was signed on December 4, 2020.
Kimmel J.
Released: December 11, 2020
DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Applicant
– and –
ADAMSON BARBECUE LIMITED AND WILLIAM ADAMSON SKELLY Respondents
REASONS FOR DECISION
– restraining order
Kimmel J.
Released: December 11, 2020
[^1]: After commencing this application, the Crown learned that the Leaside location was run by Mr. Skelly, the Etobicoke location was operated through a company called Adamson Bar-B-QUE and the Aurora location was operated through a company called Adamson Barbecue Limited. Mr. Skelly is the sole director and officer of the corporations and operates all three restaurants. They have a shared website and shared social media accounts.