Court File and Parties

COURT FILE NO.: CV-20-652216-0000 DATE: 20210629

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen in Right of Ontario AND: Adamson Barbecue Limited and William Adamson Skelly

BEFORE: J.T. Akbarali J.

COUNSEL: S. Zachary Green and Padraic Ryan, for the Applicant Michael Swinwood and Liza Swale, for the Respondents

HEARD: June 28, 2021

ENDORSEMENT

Overview

[1] The applicant, Her Majesty the Queen in Right of Ontario (“Ontario”), issued this application on November 28, 2020, seeking an order restraining the respondents from operating their restaurants in contravention of provincial regulations put in place as a public health measure to limit the spread of COVID-19. The order was granted on notice, in a hearing treated as an ex parte hearing, by Kimmel J. on December 4, 2020.

[2] Justice Kimmel’s reasons, released on December 11, 2020 (2020 ONSC 7679), contemplated a “come-back motion.” The come-back motion was expected to be an opportunity for the respondents to seek to have the restraining order set aside, varied, or terminated on the basis of a challenge to the constitutionality of the legislative scheme.

[3] The respondents argue that what came before me on June 28, 2021 was the come-back motion. However, the motion did not seek to set aside, vary, or terminate Kimmel J.’s order. Rather, the respondents brought an interim motion, without any originating process, seeking a final order for damages under s. 24(1) of The Constitution Act,1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter of Rights and Freedoms”).

[4] Ontario raised a number of threshold objections to the process employed by the respondents. At the outset of the hearing, I asked counsel to address the threshold question of my jurisdiction, given the issues raised by Ontario relating to the deficiencies in the respondents’ Notice of Motion and the lack of any originating process from the respondents. Having heard submissions on that issue only, I advised the parties that in my view, I do not have jurisdiction to adjudicate the issues have been raised by the respondents because of the manner in which they constituted this proceeding. I advised that my reasons for my conclusion would follow. These are those reasons.

Brief Background and Procedural History

[5] The background to Ontario’s application is set out in greater detail in Kimmel J.’s reasons of December 11, 2020. In brief, on March 17, 2020, the Premier of Ontario declared a state of emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “EMCPA”) as a result of the COVID-19 pandemic.

[6] 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”). Among other things, the ROA was designed to allow a targeted approach to COVID-19-related restrictions for different public health units depending on epidemiological statistics and other factors.

[7] In November 2020, the City of Toronto was placed into the Stage 1 – Lockdown Zone under Regulation 82/20. The control measures required, among other things, that restaurants be closed to indoor or outdoor dining, although they were able to operate for take-out, delivery, and drive-through services. Restaurants were required to ensure masking, physical distancing, and to have a safety plan.

[8] The respondents object to the restrictions that were placed upon them. In what they describe as an act of civil disobedience, they opened their Etobicoke restaurant for indoor and patio dining on November 24, 25, and 26, 2020. Charges were laid against the respondents under various statutes, including the ROA, and against the respondent Mr. Skelly under the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[9] On November 27, 2020, city staff and police secured the Etobicoke location.

[10] On December 4, 2020, Kimmel J. heard Ontario’s urgent request for a restraining order, and granted it the same day. Her reasons for decision were released on December 11, 2020.

[11] In her reasons, Kimmel J. addressed the urgency of the proceeding, the notice given to the respondents, and the respondents’ position. She noted that Ontario was not required to give notice of the order it sought, but it had done so, with the intention of proceeding on an abbreviated timetable. The respondents were not prepared to respond on the abbreviated timetable that Ontario had proposed, and argued that Mr. Skelly’s bail conditions alleviated the urgency of Ontario’s application.

[12] Justice Kimmel referred to her scheduling endorsement dated December 2, 2020 (2020 ONSC 7446) wherein she ordered that the application for the restraining order would proceed as if it were ex parte. She quoted from the scheduling endorsement, where she wrote:

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.

[13] The respondents subsequently prepared a Notice of Motion for hearing on February 1, 2021 by telephone conference, for the following relief:

a. An order staying the within proceedings until the determination of the Notice of Constitutional Question, dated February 1, 2021;

b. A request for a further case conference to establish timelines for the production of materials leading to the determination of the constitutional challenge;

c. A suspension of the s. 9 order [Justice Kimmel’s order] due to the revocation of the EMCPA enunciated in s. 17 of the ROA;

d. Compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under s. 24(1) of the Charter;

e. Such further or other order as may be requested and the court deems just and proper.

[14] Also on February 1, 2021, the respondents delivered a Notice of Constitutional Question in which they indicated that they “intend to question the constitutional validity (or applicability) of the [ROA] and to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an acts [sic] or omissions of the Government of Ontario.”

[15] The Notice of Constitutional Question raised three constitutional questions: (i) whether federal, provincial and municipal governments have lawful constitutional authority to unequivocally adopt, adhere and legislate in relation to the international recommendations and guidelines of the World Health Organization to declare a global pandemic without oversight and due process; (ii) whether the legislative scheme is ultra vires the province; (iii) whether the respondents’ ss. 2, 7, 8, 9, and 15 Charter rights were infringed, and if so, if the infringement is justified under s. 1.

[16] Following a case conference with Kimmel J. on February 8, 2021, the respondents delivered an amended Notice of Constitutional Question dated February 19, 2021, which indicated that they “intend to question the constitutional validity and applicability of the [ROA] and claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to acts and omissions of the Government of Ontario.” This amended Notice of Constitutional Question raised a fourth issue: whether the federal and provincial governments breached their constitutional commitment to promote equal opportunities pursuant to s. 36(1) of the Constitution Act, 1982.

[17] As a result of Justice Kimmel’s transfer to another judicial team, I was assigned to this case. On March 9, 2021, I held a case conference with the parties, during which I set a timetable for the come-back motion, and scheduled the motion to be heard over two days on June 28 and 29, 2021.

[18] Subsequently, on March 26, 2021, the respondents delivered a Notice of Motion, indicating that they would move on June 28 and 29, 2021, by way of video conference, for the following relief:

a. An order setting a hearing date for the applicants’ amended Notice of Constitutional Question to be heard at a date determined by Justice Kimmel;

b. An order for compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under s. 24(1) of the Charter;

c. An order for costs of these court proceedings;

d. Such further or other order as may be requested and the court deems just and proper.

[19] Pursuant to the timetable I ordered, the parties exchanged affidavits and held cross-examinations.

[20] The respondents uploaded their motion record to Caselines. The motion record consisted of their Notice of Motion dated March 26, 2021, an affidavit from Mr. Skelly, sworn March 26, 2021, and the amended Notice of Constitutional Question dated February 18, 2021. They also uploaded the affidavits and reply affidavits of their expert witnesses.

[21] An amended amended Notice of Constitutional Question is dated June 8, 2021. This final version of the Notice of Constitutional Question indicates that the respondents “intend to question the constitutional validity and applicability of the [EMCPA] and the [ROA] and claim a remedy under sections 24(1) of the Canadian Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982 in relation to acts and omissions of the Government of Ontario.” It raised a fifth, new, constitutional question (20 days before the hearing was scheduled), asking whether certain sections of the ECMPA and ROA are “unconstitutionally vague and open-ended constituting a constitutionally impermissible delegation of legislative power to public officials rendering the orders invalid and requiring a remedy pursuant to s. 52(1) of the Constitution Act, 1982.”

[22] Subsequently, on June 18, 2021, Ontario delivered its factum in which, among other things, it took issue with the manner in which the respondents had constituted their claims. Ontario raised issues including (i) the lack of jurisdiction of the court to grant Charter damages on an interim motion without an originating process making a claim for such damages; (ii) the failure of the respondents to specify the relief they sought in their Notice of Motion; and (iii) the failure of the respondents to give proper notice under the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, which renders a proceeding a nullity.

[23] Thereafter, on June 24, 2021, the respondents filed a further motion record, including for the first time the February Notice of Motion and the amended amended Notice of Constitutional Question. No affidavits of service were uploaded, so I do not know when the amended amended Notice of Constitutional Question was provided to Ontario[^1]. The parties did not agree on whether the relief claimed in the February Notice of Motion was before me in the motion I was scheduled to hear.

Analysis of Threshold Jurisdictional Question

[24] In these reasons, I restrict my analysis to the question of the proper constitution of the claims that have been made by the respondents, and the attendant jurisdictional and procedural fairness issues that arise. I make no comment on the other threshold issues raised by Ontario[^2] in these reasons.

[25] With respect to the constitution of the proceedings before me, Ontario argues that the only substantive relief the respondents sought on their motion was for damages under s. 24(1) of the Charter. No other substantive relief - including a declaration of invalidity of the legislative scheme - was sought in the Notice of Motion, although r. 37.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the relief sought be stated “precisely.” Ontario argues that, while a motion could have been the proper vehicle to seek to set aside or vary Kimmel J.’s order, the respondents did not seek that relief in their Notice of Motion, nor did they rely on r. 59.06 of the Rules of Civil Procedure, as they would be required to do under r. 37.06, were they indeed seeking that relief. Ontario argues it thus did not have proper notice of the relief the respondents now seek. Moreover, there is no originating process claiming relief against Ontario by the respondents. Ontario challenges the court’s jurisdiction to grant Charter damages to respondents on an interim motion in the context of Ontario’s application that does not raise the issue.

[26] The respondents argued that Kimmel J. contemplated a come-back motion, and so they have followed the procedure set out, to which no complaint was raised until Ontario’s factum was served. They argue that the Notices of Constitutional Question have made clear throughout what it is they are seeking. They say the question is simple: their constitutional challenge was always clear, and it ought to be heard as intended. They point to their Notice of Motion seeking Charter damages, and their February Notice of Motion seeking an order suspending Kimmel J.’s restraining order.

[27] I conclude I have no jurisdiction to proceed with the claims, and that the notice provided by the respondents is deficient, rendering the proceeding procedurally unfair, for the reasons below.

[28] To begin, I do not accept the respondents’ argument that the February Notice of Motion is properly before me. First, it is largely moot and seeks relief for which the need has long expired, and on its face it was to be heard at a teleconference in February. Presumably that is the teleconference that was held by Kimmel J.

[29] Second, the February Notice of Motion was not placed in the respondents’ motion record. Only after Ontario raised the jurisdictional and fairness problems with the constitution of the respondents’ motion did the respondents assemble a motion record that included the February Notice of Motion. In my view, doing so was a last-ditch effort to shore up the defects in the constitution of their claims.

[30] Third, to the extent the February Notice of Motion seeks relief relating to the restraining order, that relief is not predicated on any Notice of Constitutional Question, but on the claim that the EMPCA was revoked as enunciated in s. 17 of the ROA.

[31] Fourth, it is not common practice to have two notices of motion for the same motion that deal with the same substance. If a notice of motion has to be revised, counsel typically prepares an amended Notice of Motion. Indeed, counsel here prepared two amended Notices of Constitutional Question, so presumably they are familiar with the process of amending a document. The fact that only the March Notice of Motion was included in the record, and that it was not an amended Notice of Motion, indicates that it was the motion the respondents were bringing forward for hearing, and that only the relief sought therein is the subject of the proceeding before me.

[32] Fifth, even if the respondents somehow thought the February Notice of Motion formed part of the motion, they did not make that clear to Ontario, which was entitled to proceed on the basis that the March Notice of Motion was the one it had to answer. Why would Ontario think it had to answer to a Notice of Motion that on its face was brought for hearing months earlier, and was not included in the motion record?

[33] In Zargar v. Zarrabian, 2018 ONSC 4016 (Div. Ct.), at paras. 15-22, the court held that it is an error of law to grant relief not sought in a Notice of Motion. The court wrote:

Parties should not have to guess, speculate, or intuitively understand what the issues to be decided are on a motion. In an adversarial litigation system, it is imperative that the litigants are made clearly aware of the case they have to meet.

[34] As I have noted, the only substantive relief sought in the March Notice of Motion is for Charter damages. If the respondents seek any relief beyond Charter damages on this motion, their Notice of Motion runs afoul of r. 37.06, which requires that every notice of motion shall (i) state the precise relief sought; (ii) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and (iii) list the documentary evidence to be used at the hearing of the motion.

[35] Neither Notice of Motion in the respondents’ motion records seeks to vary or set aside Kimmel J.’s order based on the alleged unconstitutionality of the legislative scheme under which it was pronounced. Neither Notice of Motion makes reference to r. 59.06, under which the court may amend, set aside, or vary the order in any particular on which the court did not adjudicate. Given that Kimmel J. treated the application before her as an ex parte application, reference to r. 59.06 would be appropriate on a motion to vary her order, because it is a rule to be relied on. But it is not set out in either Notice of Motion.

[36] The Notice of Constitutional Question did not raise the spectre of setting aside the legislative scheme on the basis of alleged unconstitutionality until its third iteration, dated June 8, 2021, and not uploaded to Caselines until June 24, 2021. As I have already noted, I have no affidavit of service, so I do not know when it was served on Ontario, but presumably it was served no earlier than its date. That is well after the conclusion of cross-examinations, when the evidentiary record was finalized.

[37] Neither Notice of Motion ever sought an order setting aside the legislative scheme based on its alleged unconstitutionality.

[38] These problems cause due process and fairness issues for Ontario, which is entitled to know the case it has to meet. But even more than that, these problems cause jurisdictional issues for the court, because I cannot hear issues that are not properly raised before me.

[39] All of the problems with the Notices of Motion are compounded by the fact that there is no originating process from the respondents. They delivered no Notice of Application under which they seek Charter damages, or a declaration of invalidity of the legislative scheme. They delivered no Statement of Claim under which they seek Charter damages, or a declaration of invalidity of the legislative scheme. Neither a Notice of Motion nor a Notice of Constitutional Question is an originating process.

[40] With limited exceptions, a motion, and particularly one brought in the context of an application, is an interlocutory proceeding, in which a court may grant interim relief. Here, the respondents purport to seek final relief in an interlocutory motion.

[41] The come-back motion contemplated by Kimmel J. was a motion to vary her order, which on its own, would not have required an originating process. But once the respondents moved away from seeking to vary or set aside the order in favour of seeking an order for damages and a declaration of invalidity, they had to commence a proceeding.

[42] Without a proceeding claiming damages, I cannot grant damages. I cannot grant final Charter damages on an interim motion brought by the respondents to an application. I have no jurisdiction to do so. This is basic civil procedure.

[43] The problems are not minor or technical in nature. They cannot be overlooked. They go to the heart of procedural fairness and the court’s jurisdiction.

[44] As to the respondents’ counsel’s submission that Ontario should have objected earlier, it is not Ontario’s job to structure the respondents’ case. This is not a case where the respondents are self-represented parties. They were represented at the hearing by two counsel, at least one of whom has been practicing for many years. Earlier in the proceedings, when the Notices of Motion were being prepared, the respondents were represented by four counsel. I cannot explain why none of them considered these very basic issues, or if they did, why they did not address the deficiencies in the proceeding which could have been done easily and efficiently in February or March, 2021, and would have preserved the June 28, and 29 dates for a hearing on the merits.

[45] The respondents will have to make choices about their next steps. I have explained some of the options that may be available to them in these reasons. If a case conference would assist the parties, they may contact my assistant to arrange one with me.

Disposition

[46] The motion is dismissed, without prejudice to the respondents’ ability to seek relief against Ontario under the Charter or the Constitution Act, 1982 in a properly constituted proceeding or hearing.

Costs

[47] Ontario uploaded a Bill of Costs to Caselines, and indicated it would seek costs of $15,000 with respect to the motion. The respondents sought an opportunity to make written submissions on costs after receiving my endorsement. I agreed to provide them with that opportunity.

[48] Accordingly, I will receive written submissions on costs by way of email to my assistant as follows:

a. Ontario shall deliver written submissions of no more than two pages plus any necessary attachments by July 5, 2021;

b. The respondents shall deliver responding submissions of no more than two pages plus any necessary attachments by July 8, 2021;

c. There shall be no reply submissions.

J.T. Akbarali J.

Date: June 29, 2021

[^1]: The Notices of Constitutional Question are also addressed to the Attorney General of Canada, so I assume they were served on Canada as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, C. C.43.

[^2]: These issues include whether notice was given under the Crown Liability and Proceedings Act, 2019, and whether Mr. Skelly’s affidavit should be struck for failing to at the cross-examination on his affidavit, and failing to answer proper questions on cross-examination when he eventually did attend.