Court File and Parties

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

DATE: 20211122

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

Kelly Hale, self-represented

HEARD: 19 November 2021, at Kingston

ENDORSEMENT

[1] This endorsement arises from a “come-back” attendance following this court’s 10 November 2021 order under section 102 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”) which was made without notice to the respondents. That order effectively closed down the respondents’ pub and restaurant business.

[2] At the outset of the hearing Mr. Hale requested that that a jury hear his case, rather than a judge appointed by the government. He also requested that the hearing be held virtually, rather than in person, because of the possibility that the recording of the proceedings, and hence, any transcript, would be of better quality if the hearing was conducted virtually.

[3] I dismissed both of these preliminary issues on the grounds that jury trials were only available in actions, and that even in actions, relief involving certain public authorities or injunctive relief could not be heard by juries: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108. I also explained that the process for recording and transcribing hearings, whether heard in person or virtually, is essentially the same.

[4] Since the last attendance on 12 November 2021, when the applicant had sought directions relating to measures to be taken by the sheriff in carrying out the court’s 10 November 2021 order, both the applicant and the respondents had filed additional affidavit evidence. Mr. Hale had also summoned the applicant to attend court for cross-examination. Despite deficiencies in the summons to witness, the applicant attended court and was cross-examined by Mr. Hale.

[5] I should add that Mr. Hale is self-represented. Both the applicant and the court offered to adjourn the come-back hearing if Mr. Hale needed more time, whether to prepare his case or to obtain legal representation, or both. Mr. Hale elected to proceed.

[6] At the conclusion of the hearing, I informed the parties that I was not persuaded that I should vary my previous orders, save for making some changes requested by the applicant to enable him to hand over the keys for the subject premises to a property management company.

[7] I said I would provide some written reasons for my decision. They will be relatively brief.

The Applicant’s Section 22 order was Valid

[8] The applicant made an order under section 22 of the HPPA on 3 November 2021. It was the contravention of that order which led to the court making its subsequent order under section 102 of the HPPA.

[9] The respondents argue that the section 22 order (and, hence, the court’s section 102 order) was invalid. They say that it was the product of an abuse of process and that the condition precedent to the making of such an order was not met.

[10] Section 22(2) provides:

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.

[11] On the issue of due process, the statute expressly authorises a medical officer of health to make an application to the court without notice. The fact that in some other cases referred to by the parties some notice was given to the responding party does not mean that notice has to be given. Furthermore, the applicant was concerned that if notice had been given it would lead to larger numbers of people congregating at the respondents’ pub, with attendant increased risk of infection.

[12] The procedures followed by this court have been otherwise fair. While the applicant’s motion for directions was brought on short notice, Mr. Hale was given the opportunity to, and did, present evidence and make arguments in support of his position. Nor, as Mr. Hale claims, has the principle of being presumed innocent until found guilty been violated. That is a fundamental right under section 11(d) of the Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.). It is a right of any person charged with an offence. It does not apply to administrative measures taken by a public authority or regulator to enforce laws which are not criminal or quasi-criminal laws in substance or effect.

[13] The applicant acknowledged that there was and has been no known outbreak of COVID-19 at, or attributable, the respondents’ pub. Because the respondents have not required patrons to provide contact information or submit proof of vaccination status, it would, however, be harder to associate infections in the community with the respondents’ business.

[14] The respondents reasoned that if there was no immediate risk of an outbreak at their pub, there was no reasonable basis to make a section 22 order.

[15] The respondents have now requested a hearing before the Health Services Appeal and Review Board. The Board may by order confirm, alter or rescind the section 22 order, and for such purposes the Board may substitute its findings for that of the medical officer of health who made the order. Furthermore, section 44(3) provides that the Board, upon application, may grant a stay of the medical officer of health’s order. A right of appeal from the Board’s decision lies to the Divisional Court.

[16] No stay of the applicant’s order has been sought from the Board or granted.

[17] That is all that needs to be said at this juncture about the issue of the order’s validity: the competent tribunal to consider that issue is the Health Services Appeal and Review Board.

The Court Should Not Have Made the Section 102 order

[18] A more detailed review of orders under section 102 of the HPPA and the principles which govern the court’s exercise of its jurisdiction to make such orders was provided in my previous reasons for decision reported at 2021 ONSC 7473, at paras. 24-25.

[19] To displace the court’s order, the respondents have the onus to show that on the record now before the court the application of those principles favours a different outcome. They cannot do so. In his public pronouncements since the court made its order, Mr. Hale has continued to proclaim his defiance of the law. By way of example, on Sunday 14 November, while addressing a rally in front of Kingston City Hall, he is reported as having said:

Just say no. Say no! Take off your mask. Say no to the vax passports. It’s all illegal. And they know it’s illegal folks. They’re playing us. We need to stand. If a hundred of us take our masks off and walk into the local mall and sit in the food court and have a bite to eat, what are they going to do?

[20] However, Mr. Hale does raise what might be regarded as “exceptional circumstances”, arguing that he would in fact be breaking other laws were he to enforce the public health measures contained in the Rules for Areas in Stage 3, O Reg 364/20. He asserts that asking his customers to provide certain health details (i.e., vaccination status) and other personal information (i.e., names and telephone numbers) breaches privacy and human rights legislation. He also relies on the Canadian Bill of Rights, S.C. 1960, c. 44, and in particular section 1(a), which provides:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law…

[21] Mr. Hale was not able to point to any particular legislative provision, other than section 1(a) of the Bill of Rights, that he believes he would be breaching. He reeled off a list of laws and treaties, but could not say how they would be breached. Nor was he aware of any examples of other individuals or businesses in similar circumstances being prosecuted for breaches of other statutes as a result of complying with pandemic-related laws and regulations. Nevertheless, he argued that there was a risk of being sued for breach of privacy if he did comply.

[22] While there is ultimately little that can be done to prevent someone from starting a civil action, however misguided or devoid of merit, against someone who is complying with the law, such a risk would not amount to an exceptional circumstance.

[23] As for the Bill of Rights, it applies only to federal laws and, thus, is of no effect on provincial law. This, as well as the limited effect of the law even in the federal context, was explained by the Supreme Court in Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, at paras. 10 and 31:

10. The Bill of Rights is a federal statute that renders inoperative federal legislation inconsistent with its protections. It protects rights that existed when the Bill of Rights was enacted, in 1960. If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating that the legislation in question operates notwithstanding the Bill of Rights. […]

11. It is useful to consider the limited jurisprudential history of the Bill of Rights. The Bill of Rights is a federal statute, applicable only to federal law. Although the Bill of Rights remains in force, it has received little judicial notice since its passage in 1960. This is so in spite of the fact that it has been referred to as quasi-constitutional.

[24] Aside from the lack of “exceptional circumstances”, none of the other principles adopted by the courts in relation to section 102 and equivalent legislation assist the respondents. To the contrary, these principles reinforce the appropriateness of making the order in this case. And while no one principle is determinative of whether a section 102 order is appropriate or not, one of those principles in particular bears repeating:

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.

[25] There is therefore no basis for changing the decision to make the section 102 order.

The Terms of the section 102 order Exceed the Court’s Authority

[26] The respondents claim that aspects of the court’s section 102 order are excessively draconian. Mr. Hale also claims that as the subject premises are now his residence as well as his place of business, that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 applies and, by section 168(2) vests exclusive jurisdiction to determine all applications to recover possession of a rental unit subject to a tenancy.

[27] This court has previously acknowledged that authorising 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, is an intrusive remedy. It prevents the respondents from accessing their property and, thus, from conducting business. But nothing short of making such an order has been effective in preventing the respondents from breaking the law. Drastic though the remedy may have been, it has worked. It was not, in my view, a disproportionate response to the respondents’ brazen and open flouting of 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.

[28] Mr. Hale acknowledged that he does not have a residential lease. He claims, though, that he has a verbal agreement with the property manager that he can live at the pub.

[29] Even if one were to accept that the respondents’ pub is now Mr. Hale’s personal residence, the fact remains that he was running a business from the premises in contravention of provincial law. When asked whether he would comply with the Rules for Areas in Stage 3, he said he would not. In such circumstances it would make a mockery of the public health laws if Mr. Hale could avoid their application by claiming that his business is exempt from following those laws because he claims to live at the place of business.

Variation of the Court’s order of 12 November 2021

[30] The applicant requests that its role as custodian of the keys to the premises be assigned to Limestone Property Management. Although Mr. Hale objected to this request, he was not able to show how such a variation would prejudice or otherwise negatively affect the respondents’ interests. The variation sought is, accordingly, approved.

Undertaking as to Damages

[31] The requirement for the applicant to provide an undertaking as to damages would only arise if any part of the relief granted fell outside the remedial scope of section 102 of the HPPA. The court held that in such an eventuality, it would grant injunctive relief. Ordinarily, that would then give rise to a requirement for the applicant to provide an undertaking to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. However, rule 40.03 of the Rules of Civil Procedure provides the court with discretion to relieve the applicant of the need to give an undertaking concerning damages in appropriate circumstances. I would exercise that discretion in this case. Firstly, because of the contingent nature of the injunctive relief (as only being necessary if the remedial jurisdiction of section 102 has been exceeded). And, secondly, because, by virtue of section 95(1) of the HPPA, a medical officer of health is statutorily immune from any “action or other proceeding for damages or otherwise” for any act done in good faith in the execution or the intended execution of any duty or power under the HPPA, or for any alleged neglect or default in the execution in good faith of any such duty or power.

Disposition

[32] For the foregoing reasons, the court’s orders of 10 November 2021 and 12 November 2021 are continued, subject to the minor variation sought by the applicant.

[33] Should circumstances change, either party is at liberty, on not less than seven days’ notice, to make a further request for the orders to be rescinded, vacated or amended.

Costs

[34] The applicant is presumptively entitled to recover costs associated with this application to date, which includes three attendances before the court over a nine-day period. The legal fees incurred by the applicant total approximately $27,000. I have reviewed the information provided about the time spent, the rates of the fee-earners involved, and the expenses incurred, including the cost of a locksmith attending at the premises. I am satisfied that these costs have been reasonably incurred.

[35] The applicant seeks partial indemnity costs for the fees incurred in relation to the original without notice motion and the come-back hearing. Substantial indemnity costs are requested for the directions hearing because that hearing was necessitated by the respondents’ refusal to fully comply with the court’s section 102 order.

[36] The total award of costs sought is $20,832.14.

[37] The respondents are self-represented and offer no perspective on what amount of costs they might reasonably expect to pay.

[38] As Orkin on the Law of Costs, 2nd ed., loose-leaf (Aurora, Ont.: Canada Law Book, 2020) reminds us (at 201), awarding costs is an exercise in balancing two principles:

The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting principles: one, that a successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all the costs of a successful one. Costs are an appropriate deterrent to advancing questionable claims, or for dealing with the unreasonable conduct of a case, it has been said, but should never reach a level where they bar access to the courts.

[39] In this case, the respondents have repeatedly and openly flouted the rule of law. None of the litigation that has occurred should have been necessary. Although Mr. Hale presented his case in court in a respectful and measured way, for which I thank him, his conduct and his open defiance of the law and of the applicant’s authority has come at a huge cost. For a start, he has suffered the self-inflicted demise of his business and, hence, his own livelihood. But the cost to the public purse has also been immense in terms of legal costs and the law enforcement, public health, court and judicial resources that have been consumed.

[40] Mr. Hale and his business have to be held accountable, at least to the extent that the law on costs permits.

[41] I therefore order the respondents, jointly and severally, to pay the applicant costs in the amount of $20,000, inclusive of HST and disbursements, within 30 days of the release of this endorsement.

Mew J.

Date: 22 November 2021