COURT FILE NO.: CV-21-321 (Kingston)
DATE: 20211112
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. PIOTR OGLAZA, MEDICAL OFFICER OF HEALTH (KINGSTON, FRONTENAC AND LENNOX AND ADDINGTON)
Applicant
-and-
J.A.K.K. TUESDAYS SPORTS PUB INC. CARRYING ON BUSINESS AS J.A.K.K. TUESDAYS SPORTS PUB AND KELLY THOMPSON HALE ALSO KNOWN AS KELLY HALE
Respondents
David Adams and Matthew E. Taft, for the Applicant
HEARD at Kingston: 10 November 2021
Mew J.
REASONS FOR decision
(Ex parte application under Sections 22 and 102 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7)
[1] The Medical Officer of Health for Kingston, Frontenac and Lennox and Addington (“KFL&A”) seeks a restraining order or, in the alternative, an interim interlocutory injunction, against the respondents who, he alleges, are in breach of a lawful order made by him pursuant to section 22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”).
[2] Section 102 of the HPPA authorises a person who has made an order under the Act and who asserts that such order has been contravened, to apply to the Superior Court for a restraining order, without giving prior notice of that application to the persons against whom the order sought is directed.
[3] The effect and scope of an order to restrain a party from contravening an order made under the HPPA is not defined in the Act itself.
[4] After reviewing the application record and hearing the submissions of counsel for the applicant, I granted the order sought, with reasons to follow. These are my reasons.
Background
[5] An affidavit affirmed by Dr. Piotr Oglaza, the applicant, on 9 November 2021, states the following:
The World Health Organization has declared COVID-19 a pandemic.
Local surveillance data demonstrates that COVID-19 exists and is circulating in the KFLA health unit, as it is in other health units across the Province.
COVID-19 has been designated a communicable disease of public health significance under Ontario Regulation 135/18 under the HPPA.
COVID-19 presents a significant risk to the health of persons in the KFLA health unit, which is why measures to control its spread remain in force.
The science has consistently demonstrated that COVID-19 is highly transmissible. This is particularly true of certain emergent variants of concern. The Delta variant is now the predominant strain of COVID-19 circulating in the region and is highly transmissible.
COVID-19 is transmitted predominantly through respiratory droplets released from the nose and mouth and transmitted to the other person’s nose, mouth, or eyes. The virus transmits easily when people are unmasked and in close spaces. It may be transmitted by persons who have minimal or no signs of symptoms or illness.
KFLA has made significant strides in our battle against COVID-19. That said, our community must remain vigilant.
As of November 8, 2021, there were 121 active cases of COVID-19 in KFLA. We have identified 65 new active COVID-19 since Friday, November 5, 2021, with the majority of cases coming in the 18 to 29 age group and in people in their 30s.
Sadly, as of November 8, 2021, KFLA region is amongst the highest in the Province in terms of COVID-19 cases per 100,000 people per 7 days (50.2).
Just in recent days, positive COVID-19 cases have been identified on Kingston Transit and at a local night club.
All health units in the Province are presently in Stage 3 of the Province’s Roadmap to Reopen, as set out in the [Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17] and Regulation.
[6] The applicant’s evidence is consistent with the following facts which Ontario courts have taken judicial notice of in other cases that have considered the COVID-19 pandemic, its impacts on public health, and measures to control the spread of the virus, which Gibson J. helpfully summarised in Halton Condominium Corp. No. 77 v. Mitrovic, 2021 ONSC 2071, at para. 17:
Canada is currently confronted with a grave public health crisis without parallel in recent decades. Courts have taken judicial notice of this in a number of ways:
(a) “There is currently a global pandemic which has resulted in a significant number of deaths and serious illness throughout Canada and the province of Ontario. The virus affects people of all ages and is particularly dangerous to older people and those with certain medical pre-conditions”: Solanki v. Reilly, 2020 ONSC 8031 at para. 4;
(b) “The fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission”: R. v. Morgan, 2020 ONCA 279 at para. 8;
(c) “The fact that COVID-19 is caused by SARS-CoV-2, a communicable and highly contagious virus [and] that people who are infected with the virus can be asymptomatic yet still contagious”: Manzon v. Carruthers, 2020 ONSC 6511 at para. 18; and,
(d) “The pandemic has wreaked untold death and destruction worldwide; COVID-19 is extremely infectious and can spread rapidly in any location; the main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protective equipment (PPE), and iii) regular testing of the population:: R. v. Grant, 2020 ONSC 3062 at para. 25.
[7] The respondents operate a restaurant located at 642 Progress Avenue, Kingston, Ontario. The operation of the respondents’ restaurant, in common with all other restaurants and similar operations in Ontario, is governed by provincial measures enacted for the expressed purpose of helping to control the spread of COVID-19. This includes screening of patrons, inquiring about vaccine status, obtaining contact tracing data and mask mandates. These measures are contained in the Rules for Areas in Stage 3, O Reg 364/20 (“the Regulation”) promulgated under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“the ROA”). They are part of the law of this province.
[8] The respondents have been vocal and public opponents of these provincial public health measures. Even before the current “vaccine passport” requirement came into force, Mr. Hale publicly and openly announced that he would not comply.
The Section 22 Order
[9] The Regulation requires, among other things, that:
a. The person responsible for a business or organization that is open ensures that the business complies with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting, and screening for COVID-19.
b. A person shall wear appropriate personal protective equipment that provides protection of the person’s eyes, nose and mouth if, in the course of providing services, the person is required to come within 2 metres of another person who is not wearing a mask or face covering in a manner that covers that person’s mouth, nose and chin during any period when that person is in an indoor area, and is not separated by an impermeable barrier.
c. The person responsible for a business or an organization that is open requires each patron who enters an area of the premises of the business or organization to provide, at the point of entry, proof of identification and of being fully vaccinated against COVID-19.
d. The person responsible for a restaurant must actively screen any dine-in patrons in accordance with the advice, recommendations and instructions of the Office of the Chief Medical Officer of Health before they enter the establishment.
e. The person responsible for a restaurant must collect and retain contact tracing data.
[10] Public health inspectors with KFL&A Public Health observed multiple breaches of the Regulation at the respondents’ premises. The inspectors observed that neither the owner nor staff requested proof of vaccination from patrons that entered the premises. No contact information was being collected for patrons entering the establishment. Neither the owner nor staff were wearing masks or personal protective equipment. None of the employees were seen wearing masks or personal protective equipment. Patrons were not masked upon entering or walking around the premises. Nevertheless, patrons were being served food and were eating.
[11] During an inspection visit to the respondents’ premises on 19 October 2021, the inspectors observed a marquee above the front door which read “SAY NO TO VAX PASSPORTS ALL WELCOME AT JAKKS”.
[12] The following documents were affixed to the door and window of the premises:
a. A copy of what appeared to be the Canadian Bill of Rights, S.C. 1960, c. 44.
b. A document which read: “I PLEDGE: To uphold our unalienable rights and freedoms of the people of Canada. To run my business and serve clients free from discrimination or segregation based on vaccination status, medical mask exemptions, race religion, creed, disability and or health conditions, gender or sexual identity and any other differences protect under Common Law jurisdiction, the Canadian Bill of rights [sic] and Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.”
c. A sign which read: “TAKE NOTICE PRIOR TO TRESPASS.”
d. A printout of O. Reg 264/21: “Declaration of Emergency” under the Emergency Management and Civil Protection Act, noting that the regulation was revoked by the legislature on 9 June 2021.
e. A sign which read: “NO TRESPASSING” purporting to prohibit “Police officers, Municipal bylaw officers, Public health officers” from entering 642 Progress Avenue “At any time for any reason whatsoever except with a criminal warrant to enter the premises.” The notice warned that the property “will be defended from this unlawful entry.” The notice was effective 12 September 2021, and was signed by Kelly Thompson Hale as “landowner or occupier”.
f. A sign which read: “WE ARE ON THE FREEDOM MAP. WE RESPECT YOUR RIGHT TO MEDICAL FREEDOM. NO QUESTIONS ASKED. FIND THE MAP AT WWW.SAVECANADA.ARMY. SAVE CANADA.”
g. A sign which read, in part: “WE DO NOT DISCRIMINATE AGAINST ANY CUSTOMER BASED ON SEX, GENDER, RACE, CREED, AGE, LOCATION VACCINATED OR NOT VACCINATED. ANYBODY WHO SUPPORTS CANADIAN CHARTER OF RIGHTS AND FREEDOMS CANADIAN BILL OF RIGHTS [sic] IS WELCOME.”
[13] Dr. Oglaza deposes that he was:
… especially concerned by the reports from our enforcement team that the respondents are refusing to wear masks or enforce mask mandates and are refusing to require proof of COVID-19 vaccination, screen for symptoms of COVID-19 or collect contact tracing information. These are clear breaches of the Regulation and present a risk to public health.
[14] Section 22 of the HPPA authorises a Medical Officer of Health to make mandatory orders for the purpose of controlling outbreaks of communicable diseases. Subsection 22(2) sets out the conditions precedent which must be fulfilled before a MOH may make such an order:
Condition precedent to order
22(2) A medical officer of health may make an order under this section where he or she is of the opinion, upon reasonable and probable grounds,
(a) that a communicable disease exists or may exist or that there is an immediate risk of an outbreak of a communicable disease in the health unit served by the medical officer of health;
(b) that the communicable disease presents a risk to the health of persons in the health unit served by the medical officer of health; and
(c) that the requirements specified in the order are necessary in order to decrease or eliminate the risk to health presented by the communicable disease.
[15] On 3 November 2021, the applicant issued an order under section 22 of the HPPA. That order required the respondents to bring their business into compliance with the Regulation, or to close their business until they do comply. Specifically, the order required the respondents to immediately:
achieve compliance with all requirements for a restaurant as outlined in Ontario Regulation 364/20, Rules for Areas at Step 3 and at the Roadmap Exit Step and remove all signs promoting and/or advertising non-compliance with Ontario Regulation 36 4/20, Rules for Areas at Step 3 and at the Roadmap Exit Step; or
close the establishment known as J.A.K.K. Tuesdays Sports Pub (291142693).
[16] The respondents were served with the order on the day it was made. To date, the respondents have not exercised their right to appeal the section 22 Order to the Health Services Appeal Board.
Contravention of Section 22 Order
[17] Inspectors attended the premises again on 5 November 2021. The signs that had previously been observed were still there notwithstanding that, as part of the Section 22 Order, all signs promoting and/or advertising non-compliance with the Regulation were required to be removed.
[18] A chair inside the doorway to the premises was observed. It was draped in a Canadian flag and affixed to the chair was a sign that read “This chair is reserved for Kingston Frontenac Lennox & Addington Public Health Officer to check vaccine passport information. If this chair is empty, it means that KFL&A is not enforcing the vaccine mandate.”
[19] The inspectors spoke to Mr. Hale who said he would not remove the signage. He said that he intends to defy the Section 22 Order and the Regulation.
[20] There was a report in the media that on Friday 5 November 2021 the restaurant saw a busy lunch rush with “lots of people coming and going”.
[21] On 8 November 2021, the inspectors returned and observed promotional materials indicating that the respondents intended to remain open during the Christmas period and that patrons were invited to attend a restriction-free Christmas market.
Relief Sought by the Applicant
[22] The applicant now seeks relief including the following:
a. A declaration and order pursuant to section 102 of the HPPA, restraining the respondents, their servants, employees, agents, assigns, officers, directors and anyone else acting on their behalf or in conjunction with them, 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,
1.contravening the order issued to the respondents on 3 November 2021 by the applicant under section 22 of the HPPA,
2.contravening any further, continued, or other order made under section 22 of the HPPA that applies or may subsequently apply to the respondents in respect of any restaurant or premises owned or operated by one or both respondents or any corporation under their control or direction that is subject to the Regulation,
3.contravening such further directions as may be made by the applicant under section 24 of the HPPA or otherwise,
4.contravening the Regulation, under the ROA, as may be amended from time to time, at any restaurant or premises owned or operated by one or both Respondents or any corporation under their control or direction that is subject to the Regulation, under the ROA.
b. An order requiring that the respondents, forthwith, affix any restraining order made by the Court to the external doors of the J.A.K.K. Tuesdays Sports Pub located at 642 Progress Avenue in Kingston, Ontario, in such a manner that the order is visible to all individuals entering or attempting to enter the premises, and to, forthwith, deliver a copy of the restraining order to all full-time and part-time employees of the respondents via email, regular letter mail or hand delivery.
c. In the alternative, a restraining order pursuant to section 102 of the HPPA on such other terms as the Court deems just.
d. In the further alternative, an interim, interlocutory, and permanent injunction, in equity, at common law, and/or pursuant to the Court of Justice Act, on the same terms, or on such other terms as the Court deems just.
[23] During the course of argument, counsel for the applicant invited the court to include, as a term of any restraining order or other injunctive relief granted, that the Sheriff should lock the doors of the premises and that the respondents should provide reasonable cooperation to facilitate the Sheriff doing so.
[24] Section 102 of the HPPA provides:
Proceedings to restrain contravention of order or directive
102 (1) Despite any other remedy or any penalty, the contravention by any person of an order made under this Act or of a directive relating to a small drinking water system may be restrained by order of a judge of the Superior Court of Justice upon application without notice by the person who made the order or issued the directive or by the Chief Medical Officer of Health or the Minister.
[25] In Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7679, which considered the remedy provided for by section 9 of the ROA, which is substantially similar in all material respects to s. 102 of the HPPA, Kimmel J. adopted and applied the approach taken in cases considering statutory injunctions provided for in other statutes, which either mandate or restrain regulated conduct. Several principles that guide courts determining requests for statutory injunctions can be distilled from the Adamson Barbecue case and the other authorities referred to by Kimmel J. (see paras. 16-21):
a. The applicant must establish on a balance of probabilities a “clear breach” of an enactment.
b. Although the requirements of irreparable harm and the balance of convenience that animate the test for an equitable injunction do not apply to statutory injunctions, where a breach is established, the court retains residual discretion to decline to grant an order in “exceptional circumstances”.
c. “Exceptional circumstances” may include:
1.The offending party has ceased the activity and/or has provided clear and unequivocal evidence that the unlawful conduct will cease.
2.The injunction is moot and would serve no purpose.
3.There is a right that pre-existed the enactment that was breached.
4.There is uncertainty regarding whether the offending party is flouting the law.
5.The conduct at issue is not the type of conduct that the enactment was intended to prevent.
d. An applicant does not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.
e. Proof of damages or proof of harm to the public is not an element of the legal test.
f. There is no need for other enforcement remedies to have been pursued.
g. 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.
h. It remains more difficult to obtain a mandatory injunction.
i. 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. 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.
Reasons for Granting the Relief Sought
[26] It is not the function of the court to engage in a debate about the merits of the laws that the respondents clearly find to be offensive: it is for the policy decision makers in the Ontario legislature and Parliament, not the court, to weigh the benefits to the public good of these public health and welfare measures, and to determine how to balance individual rights with the public good.
[27] The only question is whether a statutory injunction under section 102 of the HPPA or other injunctive relief ought to be granted, given the evidence before the court of the respondents’ alleged past and ongoing breaches of the Regulation and the section 22 Order made by the applicant.
[28] The record before the court amply demonstrates not only that the respondents have committed multiple “clear breaches” of the ROA and the Regulation and the section 22 order, but that they continue to actively and publicly flout these enactments.
[29] The respondents’ public pronouncements in the media and on social media, and their statements to public health inspectors, confirm that they are ideologically opposed to the measures outlined in the Act and Regulation and in the section 22 Order, and that they will continue to flout these measures. While the respondents’ notices and pronouncements assert that the Regulation and other enactments are unconstitutional and violate their human rights, they have not appealed the section 22 Order or, so far as the applicant is able to determine, taken any other steps to challenge the validity of the legislation in a court or tribunal of competent jurisdiction.
[30] In Ontario v. Old Colony Mennonite Church, 2021 ONSC 4638, Howard J., referring to the Court of Appeal’s judgment in Paul Magder Furs Ltd. v. Ontario (Attorney General), 1991 CanLII 7053 (ON CA), 6 O.R. (3d) 188, 85 D.L.R. (4th) 694 (C.A.), stated, at para. 66:
As our Court of Appeal said decades ago, "the Charter of Rights and Freedoms is no licence to break the law or defy an order of the court. It is elementary that so long as a law or an order of the court remains in force it must be obeyed." As such, unless and until the Step 1 Regulation is determined to be constitutionally infirm, its restrictions must be obeyed, and this court has a responsibility to enforce it according to its terms when called upon to do so.
[31] The same principle applies in this case. The respondents may not like the law. And they have the right to speak out against the law and to challenge the policies that underlie the law. But they must comply with the law as it stands. Theodore Roosevelt reinforced that principle in his Third Annual Message to Congress on 7 December 1903:
No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.
[32] Is the relief sought appropriate?
[33] Section 102 of the HPPA is an additional tool, over and above other legislative and non-legislative recourse, to ensure compliance with orders and directives of public health officials, providing for the issuance of a restraining order “[d]espite any other remedy or penalty” available.
[34] Clearly the section 22 order has had no impact on the respondents’ behaviour. Section 102 of the HPPA provides that the contravention by any person of an order made under the HPPA may be restrained by order of a judge of this Court. The remedy provided is preventative in nature: to restrain the contravention. The breach does not have to be continuing or ongoing at the time the statutory injunction is granted, although in the present case it is.
[35] Indeed, the respondents’ intention to defy the Act and Regulation has been made clear and appears to be based on their ideological opposition to it. The past actions of the respondents demonstrate clear breaches of the section 22 Order and their expressed intentions to continue doing so are an added justification for restraining future contraventions of the section 22 Order.
[36] Appreciating that the respondents have not yet had the opportunity to place evidence before the court or to otherwise overcome the finding that there have been multiple clear breaches of the section 22 Order, or to challenge the appropriateness of the remedies sought by the applicant, the record presently before the court discloses no “exceptional circumstances”.
[37] It is, accordingly, entirely appropriate for a section 102 Order to be made at this time.
[38] As already alluded to, one of the terms of the order now sought by the applicant would order and direct:
… the Sheriff of Frontenac County to, forthwith, lock the external doors of the business known as J.A.K.K. Tuesdays Sports Pub located at 642 Progress Avenue in Kingston, Ontario (“the Property”), pursuant to section 102 of the HPPA and section 101 of the Courts of Justice Act, RSO 1990, c C.43. The Kingston Police Service is hereby directed to assist the Sheriff in locking the external doors of the Property while, at the same time, acting reasonably with respect to timing and methods. The Respondents shall provide such reasonable cooperation as may be requested by the Sheriff or the Kingston Police Service to facilitate the locking of the Property. The Respondents or their agents should be allowed access to the Property for necessary inspections, maintenance, and repairs on notice to the applicant’s lawyers and with the assistance of the Kingston Police Service.
[39] Similar terms were imposed by Thomas R.S.J. in R. v. The Church of God (Restoration) Aylmer, 2021 ONSC 3452, at paras. 38-39. That was a decision on the sanctions to be imposed following a finding of contempt against parties found to have breached a court order made under section 9 of the ROA. They were not terms of the original restraining order.
[40] Counsel for the applicant argues that, consistent with a purposive approach to statutory interpretation, the authority given to the court by section 102 – “the contravention by any person of an order made under this Act … may be restrained by order of a judge of the Superior Court of Justice” – would include reasonable terms to give effect to the restraint of a party’s actions, including ordering the locking of external doors of the respondents’ premises by the Sheriff. The applicant also suggests that such terms would also lessen the chances of future conduct on the respondents’ part amounting to contempt of this court’s order.
[41] I was not referred to any authorities which discuss the methods that can be employed to give effect the purpose of restraining contravention of the Act. As with remedies generally, the terms of an order under section 102 should, in my view, be proportionate to the nature and extent of the contravention. They should not be more intrusive or restrictive than is reasonable in all of the circumstances.
[42] I do not regard a requirement that the external doors of the premises be locked, coupled with a facility for the respondents to access the premises for necessary inspections, maintenance, and repairs on notice to the applicant’s lawyers, to be disproportionate or otherwise unreasonable. And if there is some other good reason for the respondents needing access to the premises that is consistent with the purposes of the order, the respondents are at liberty to ask for a variation of the order sought.
[43] Should I be mistaken in finding that the “locking” term is within the permissible scope of an order under section 102, I would nevertheless make such an order pursuant to the court’s power to grant an interlocutory injunction or mandatory order, on such terms as it deems just, contained in section 101 of the Courts of Justice Act. In my view, the applicant easily meets the three part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which requires him to demonstrate that (i) there is a serious question to be determined; (ii) if the order is not made it will result in irreparable harm that cannot be compensated for by an award of damages; and (iii) the balance of inconvenience to both parties favours the relief requested. I will determine whether the court should exercise its discretion under rule 40.03 of the Rules of Civil Procedure to relieve the applicant of the need to give an undertaking concerning damages on the next court date. The requirement to give an undertaking as to damages is waived until then.
Next Step
[44] If an interim interlocutory injunction is granted on a motion made without notice to the responding party, its duration is limited to 10 days without further order of the court (Rules of Civil Procedure, rule 40.02). There is no such time in effect limit on an order made under section 102 of the HPPA. Nevertheless, the applicant proposed, and I agree, that there should be a “come-back” hearing within the next ten days. That will provide the respondents with an opportunity to take advice and, if they elect to do so, ask the court to vary or set aside its order.
[45] This matter shall be brought back before the court for a further hearing on Friday 19 November 2021 at 11:30 a.m. at the Frontenac County Court House, 5 Court Street, Kingston, at which time the court will receive submissions from the respondents and the applicant as to (a) whether this order, or elements thereof, should be varied, discharged or made permanent; (b) whether the applicant must provide an undertaking concerning damages pursuant to Rule 40.03; and (c) the costs of the application, including the ex parte hearing held on 10 November 2021.
Mew J.
Released: 12 November 2021
COURT FILE NO.: CV-21-321 (Kingston)
DATE: 20211112
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. PIOTR OGLAZA, MEDICAL OFFICER OF HEALTH (KINGSTON, FRONTENAC AND LENNOX AND ADDINGTON)
Applicant
-and-
J.A.K.K. TUESDAYS SPORTS PUB INC., CARRYING ON BUSINESS AS J.A.K.K. TUESDAYS SPORTS PUB AND KELLY THOMPSON HALE ALSO KNOWN AS KELLY HALE
Respondents
REASONS FOR decision
(Ex parte application under Sections 22 and 102 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7)
Mew J.
Released: 12 November 2021