Court File and Parties

COURT FILE NO.: CV-21-321 (Kingston)

DATE: 20211115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 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

BEFORE: Mew J.

COUNSEL: David Adams and Matthew E. Taft, for the Applicant Domenico Polla, for the Sheriff, County of Frontenac Kelly Hale, self-represented Sergeant Steve Koopman, Kingston Police, in attendance.

HEARD: 12 November 2021, at Kingston (by videoconference)

ENDORSEMENT

(Motion for directions pursuant to Rule 60.17 in relation to the measures to be taken by a sheriff in carrying out an order)

[1] On 10 November 2021, for reasons reported at 2021 ONSC 7473, the court made an order under section 102 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”) which, among other things, restrained the respondents from contravening an order made by the applicant under section 22 of the HPPA and contravening the Rules for Areas in Stage 3, O. Reg. 364/20, under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c 17. The court’s order also directed:

…. 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 order continued:

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.

[2] By correspondence sent to the court by email via the Trial Coordinator at Kingston at 15:50 on 11 November 2021, the applicant’s lawyers sought an urgent hearing, pursuant to Rule 60.17 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to obtain directions from the court in relation to the measures to be taken by a sheriff in carrying out the court’s order of 10 November 2021. The grounds for seeking directions were:

a. The Sheriff and police had attended the respondents’ premises on 10 November 2021 to execute the court’s order, but the external doors of the building were not locked at that time.

b. Public health inspectors confirmed that the respondents had continued to operate J.A.K.K. Tuesdays Sports Pub after service of the order, in contravention of the restraining order and injunction.

c. A concern that persons attending a planned protest rally in Kingston on 14 November 2021 promoted by the respondents would congregate at the respondents’ premises.

[3] The court was closed for Remembrance Day observance on 11 November. On the morning of 12 November, I directed the Trial Coordinator to schedule a hearing via Zoom at 13:00, and directed that:

a. the need for a filing fee and formal material be dispensed with;

b. to the extent that information which not already before the court in proper evidentiary form was to be relied upon, it should be put in affidavit form or an appropriate person should be available to give viva voce evidence at the hearing;

c. reasonable efforts should be made to notify the respondents of the hearing and to provide them with a copy of the 11 November 2021 letter to the Court;

d. Kingston Police and the Sheriff to be notified that the hearing is taking place and to be at liberty, but not required, to attend.

[4] Rule 60.17 provides:

Motion for Directions

60.17 Where a question arises in relation to the measures to be taken by a sheriff in carrying out an order, writ of execution or notice of garnishment, the sheriff or any interested person may make a motion for directions,

(a) to the judge or officer who made the original order, at any place;

(b) to a judge or officer who had jurisdiction to make the original order, in the sheriff’s county, despite rule 37.03 (where motions to be brought); or

(c) where an appeal has been taken from the original order, to a judge of the court to which the appeal has been taken, at any place.

[5] The directions sought by the applicant include the following:

a. In order to give effect to paragraph 2 of this Court’s restraining order and injunction dated November 10, 2021,

i. Kingston Police Service shall, forthwith, take such steps as are reasonably necessary, in its discretion, to physically remove all persons from the business and premises known as J.A.K.K. Tuesdays Sports Pub located at 642 Progress Avenue in Kingston, Ontario (“the Property”),

ii. The Sheriff of Frontenac County shall, forthwith, ensure that the locks on the external doors of the Property are changed and that any windows are secured so that the Property can be locked, with assistance to be provided by a locksmith arranged by the Applicant or his agent, in coordination with the Sheriff, and to be accompanied by Kingston Police Service,

iii. the key(s) to the new locks of the premises shall be retained by the Applicant or its solicitors. The Respondents or their agents should be allowed access to the Property only for necessary inspections, maintenance, and repairs on reasonable notice to the Applicant’s counsel and with the assistance and oversight of the Kingston Police Service, and

iv. the Respondents, their servants, employees, agents, assigns, officers, directors, and anyone else acting on their behalf or in conjunction with them, shall offer such assistance and cooperation as may be requested by the Sheriff of Frontenac County and Kingston Police Service to give effect to this Order.

b. that the Respondents shall, forthwith, cause to be affixed to the external doors of the Property, a copy of this Order, in such a manner that this Order is visible to all individuals entering or attempting to enter the Property.

[6] At the directions hearing, the applicant called Ryan Decker, a public health inspector employed by the applicant, to testify.

[7] Counsel for the Sheriff, as well as Sergeant Steve Koopman of Kingston Police also participated in the hearing. Sgt. Koopman informed the court that the police were willing to assist in a “keeping the peace” capacity.

[8] A report from the Sherriff’s officers concerning their attendance on 10 November to serve the court’s order was filed. It stated, in part:

At 5:40pm enforcement office[r] … read the injunction order to Kelly Hale. After completing the reading the order to Hale, he stated this is not his business, it is his residence and that he would lock up his business, but we will not lock this establishment because it is his home. He also stated that there would be many people attending that night for a birthday party.

On completion Mr. Hale was asked if he would comply with the order and he responded no, again claiming he lives at the property. Four copies of the order were left with Mr. Hale on the table. After refusal to comply with said order enforcement officers … concluded that they were unable to lock the doors. [The enforcement officers] and the police left the premises.

[9] Mr. Decker informed the court that on 11 November he attended the premises for a compliance visit. He was met at the door by the respondent Kelly Hale and individuals who he believed to be patrons. He observed that the external doors of the subject premises had not been locked and the “Open” sign was on. Mr. Hale told him he had friends inside. Mr. Hale also acknowledged that masking, vaccine status and contact tracing information regulations were not being enforced.

[10] Mr. Hale read into the record an affidavit which he had hastily prepared after having been notified of the directions hearing. He also answered questions put to him by counsel for the applicant and by the court.

[11] Mr. Hale’s affidavit confirmed that he is not requiring his customers to wear a mask or provide their vaccination status. He says that to do so would violate a host of laws which he lists in his affidavit. He also challenges the basis upon which the section 22 order was made, claiming that there was no evidence that it was necessary to close his business “because of immediate risk to public health” (emphasis added).

[12] Mr. Hale informed the court that the respondents have now lodged an appeal against the applicant’s section 22 order.

[13] Mr. Hale confirmed that he has not complied with the term of the 10 November order requiring him to cooperate with the Sheriff or the Kingston Police Service to facilitate the locking of the property, and that the property remained unlocked. He told the court that he is now living at the premises, as well as operating his business there, and has legally changed his residential address to 642 Progress Avenue. He asserted that the court does not have authority to evict him from what is now his residence as well as his place of business.

[14] Mr. Hale was asked whether he was prepared to comply with the order to cease operating his business at the premises until such time as the court’s 11 November 2021 order was varied, revoked or otherwise ceased to be in effect. He said he was not.

[15] Given the generality of the terms of the 11 November 2021 order as they pertain to the locking of the premises, the respondents’ ongoing non-cooperation, and for the avoidance of doubt, it is appropriate to give further directions to assist the Sheriff and the police to enforce the order.

[16] The court reiterated that its orders must be complied with until they are no longer in force. If, as the respondents assert, the court should not have made the 10 November 2021 order, the respondents have the right to challenge it, and, indeed, to challenge the laws that the court relied upon to make the order. At this juncture, however, the immediate issue before the court is to achieve compliance with its order by whatever reasonable, lawful and proportionate means are available.

[17] In agreeing to provide the directions sought by the applicant, I am mindful of their intrusive nature. They authorise the Sheriff and the police to enter the premises without the permission of the respondents, to remove all persons on the premises, and to change the locks, thereby barring the respondents from accessing the premises except as permitted by the court’s orders. However, they are in my view necessary to give effect to the court’s order and to prevent ongoing violation of the law by the respondents and their patrons.

[18] Although the applicants have advised that they intend to bring contempt proceedings in due course, it will take time for a contempt motion to be brought, heard and adjudicated. In the meantime, it cannot be in the public interest for the premises to remain open and for the defiance of public health measures by the respondents to continue. As discussed in my initial decision to grant the section 102 Order, the purpose of the remedy is to prevent contravention of orders made under the HPPA. These directions are necessary to give effect to that objective. They are not intended to punish.

[19] For the foregoing reasons, I have made the order for directions as sought by the applicant.

Mew J.

Date: 15 November 2021