Court File and Parties

COURT FILE NO.: CV-21-281

DATE: 20211203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Thomas Piggott, Acting Medical Officer of Health for the Board of Health for the Peterborough County – City Health Unit, Applicant

AND:

Nicole Comber, Respondent

BEFORE: Justice V. Christie

COUNSEL: Jennifer Savini and Kerri Malcolm, Counsel, for the Applicant

Ex Parte

HEARD: December 3, 2021

Ex pARTE REQUEST FOR AN ORDER UNDER SECTION 102 OF THE HEALTH PROTECTION AND pROMOTION ACT

Overview

[1] The Respondent owns a sole proprietorship known as Peterburgers located at 25 George Street North in the City of Peterborough, Ontario. Peterburgers is a restaurant that offers both dine-in and take-out services. Roy Asselstine is an operator of Peterburgers and identifies himself as the husband of the Respondent. Peterburgers is located in the health unit served by Peterborough County-City Health Unit (“PPH”).

[2] On November 25, 2021, the Acting Medical Officer of Health for the Board of Health for PPH served an order under section 22 of the Health Protection and Promotion Act (“HPPA”), requiring the Respondent to close her restaurant or to operate the restaurant in accordance with Regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act (the “ROA”), including requirements relating to masking, contact tracing and proof of vaccination for indoor dining. It is alleged that there is continued non-compliance with the Section 22 Order. The Applicant brings this Application, without notice, requesting an order under section 102 of the HPPA, restraining the contravention of the Section 22 Order and related relief.

COVID-19 – Generally and Locally

[3] The World Health Organization has declared COVID-19 a global pandemic. COVID-19 has been designated a communicable disease of public health significance pursuant to Ontario Regulation 135/18, as amended, under the HPPA.

[4] Current Ontario data illustrates that the current COVID-19 effective reproduction number is greater than 1, which indicates ongoing spread of the virus amongst Ontarians. Ontario data, as of November 24, 2021, shows that the 7-day average rate of COVID-19 cases is 10.26 per 100,000 amongst those with an unvaccinated status, compared to 2.63 cases per 100,000 amongst those with a fully vaccinated status. From December 14, 2020 to October 31, 2021, unvaccinated cases have accounted for 91.3% of hospitalizations and 90.6% of deaths, while breakthrough cases have accounted for 2.2% of hospitalizations and 2.8% of deaths in Ontario.

[5] The virus and variants are spread from an infected person to a close contact by direct contact or when respiratory secretions from the infected person enter the eyes, nose or mouth of another person. Risk of transmission is greater in close contact environments where people are within two metres and/or without masks or face coverings. It has been determined that indoor dining, in the absence of the appropriate health precautions, creates a significant risk of exposure, or spread, of the COVID-19 virus or variants.

[6] All health units in the Province are presently in Stage 3 of the ROA.

[7] Local data demonstrates that the virus causing COVID-19 is present and circulating within the area served by PPH. As of December 1, 2021, there were 45 active cases of COVID-19 in the County, 12 of which were new since November 29, 2021. Community spread and close contact were the most likely sources of 64.8% of the cases in the last 4 weeks.

[8] It is reasonable to conclude that an increase in local COVID-19 cases will increase the risk of further community disease transmission amongst residents in the area served by PPH, and therefore, COVID-19 presents a significant risk to the health of persons in the area served by PPH. The continued risk is the reason that measures to control its spread remain in force.

Facts Specific to This Establishment

[9] On September 16, 2021, a public health inspector attended Peterburgers for a compliance inspection. Two staff members were present, but no customers. The inspector was greeted by a staff member who was wearing a mask. The inspector explained they were there to conduct a routine food inspection and a COVID-19 compliance inspection. The staff member requested that the inspector wait for the operators, Nicole Comber and Roy Asselstine. While waiting for the operators, the inspector noticed a staff member in the kitchen handling food while not wearing a mask or face covering, however, the person was able to maintain at least a 2-metre distance from other individuals in the premises. Ms. Comber and Mr. Asselstine arrived wearing masks. Compliance with the Regulation was discussed. Ms. Comber and Mr. Asselstine informed the inspector that they would take actions to ensure Peterburgers operated in compliance with the Regulation in future. The inspector reviewed the COVID-19 compliance inspection report with both individuals and a copy of the report was provided.

[10] On September 17, 2021, PPH sent an email update to nicolecomber@yahoo.ca, the sole proprietor of Peterburgers, outlining the upcoming “proof of vaccination” requirements, and reiterated the contract tracing requirements. There was a reiteration of how compliance with the Regulation could be achieved.

[11] On September 23, 2021, a member of the public lodged a COVID-19 complaint with the Health Unit in relation to Peterburgers not being willing to comply with the Regulation.

[12] On September 24, 2021, a public health inspector left a message with the Respondent to discuss the complaint. Roy Asselstine returned the call. The Inspector explained that the reason for the call was regarding a complaint from a member of the public concerning social media posts made by Peterburgers indicating that staff would not be asking for proof of vaccination from customers dining indoors. The inspector clarified that confirming proof of vaccination was required by law as per the Regulation. Roy Asselstine explained that he did not believe he was allowed to collect personal health information and that he did not believe that he was legally required to ask for proof of vaccination from customers, as it was not a law. Mr. Asselstine was directed to review the Regulation and was provided with details of how to access the Regulation online. The requirements under the Regulation were further discussed.

[13] On September 25, 2021, Roy Asselstine spoke out against the requirements under the Regulation, as well as COVID-19 preventative measures implemented by the Government of Ontario generally, at Confederation Park.

[14] On September 28, 2021, two public health inspectors attended Peterburgers to deliver a warning letter outlining non-compliance with the Regulation, primarily related to proof of vaccination and identification for dine-in customers. The visit was precipitated by multiple complaints made to the Health Unit from members of the public stating that staff were not asking dine-in customers for proof of vaccination. Nicole Comber and Roy Asselstine were present during the visit. The complaints were discussed. During the discussion and service of the warning letter, Ms. Comber and Mr. Asselstine asserted that the vaccine is not effective, that the Regulation is not law, and that complying with the Regulation was illegal. It was explained by the inspectors that if they did not want to check for proof of vaccination for dine-in customers, they could close their indoor dining area while continuing to operate their outdoor dining area as well as takeout and delivery. They said they would not be asking for proof of vaccination and would not be closing their indoor dining area.

[15] On September 29, 2021, a public health inspector sent an email to Peterburgers which contained educational information related to non-compliance.

[16] On September 30, 2021, a public health inspector sent another follow-up email to Peterburgers to provide general information in relation to the Regulation and the alleged non-compliance.

[17] On October 1, 2021, a public health inspector visited Peterburgers to discuss compliance with the Regulation. Nicole Comber and Roy Asselstine stated that they had “no choice” and advised they would comply moving forward.

[18] On October 8, 2021, after continuing to receive public complaints respecting Peterburgers’ non-compliance with the proof of vaccination requirement, PPH staff attended Peterburgers to perform an “undercover dining” visit to determine compliance. There was observed non-compliance with proof of vaccine / identification requirements, active screening, collection of diner contact information, masking, and personal protective equipment (“PPE”). Later on the same day, three Provincial Offence Notices were served on Ms. Comber in relation to proof of vaccine requirements, mask/face coverings, and customer contact information.

[19] On October 29, 2021, after continuing to receive public complaints respecting non-compliance with Regulations, a public health inspector performed another undercover dining visit. Similar non-compliance was observed.

[20] On November 11, 2021, PPH delivered a cease and desist letter to Nicole Comber directing the premises to comply with the Regulation. Later that evening, a video clip from Nicole Comber’s Facebook group was released on Twitter, showing Roy Asselstine referring to the cease and desist letter as toilet paper.

[21] On November 18, 2021, a public health inspector attended at the premises to discuss compliance moving forward. During the discussion, Ms. Comber and Mr. Asselstine stated that the cease and desist letter failed to state the specific sections of the Regulation they were allegedly failing to comply with. The owner / operator of Peterburgers was believed to have called out for support from community members and a crowd gathered at the premises. Also, the inspector received 25-30 emails from members of the public expressing their displeasure with the actions of PPH in relation to Peterburgers.

[22] Between November 19 and 24, 2021, the business remained open and continued non-compliance with the Regulations. Individuals were sleeping overnight at the establishment. There were unsanitary conditions, including the accumulation of garbage.

[23] On November 24, 2021, Dr. Ian Gemmill, then Acting Medical Officer of Health, issued and directed service of a Section 22 Order on the Respondent. The Order stated in part as follows:

I, Dr. Ian Gemmill, Medical Officer of Health for the City of Peterborough and the County of Peterborough, order you to take the following actions, effective immediately, upon receipt of this Order:

1. Achieve compliance with all requirements for a restaurant as outlined in O. Reg. 364/20: RULES FOR AREAS AT STEP 3 AND AT THE ROADMAP EXIT STEP; or

2. Close the establishment known as Peterburgers….

The requirements under the regulation that applied to Peterburgers were set out explicitly in the Order, including:

a. The requirement for masks or face coverings in the indoor area unless an exemption applies;

b. The requirement for PPE if the person is required to come within 2 metres of another person who is not wearing a mask / face covering in an appropriate manner in the indoor area, or is not separated by a barrier;

c. The requirement that each patron provide proof of identification and proof of being fully vaccinated at the point of entry;

d. The requirement to record and maintain the name and contact information of every patron who enters the establishment, unless it is a temporary entry for takeout.

[24] The Order also notified the Respondent as follows:

TAKE NOTICE THAT you are entitled to a hearing by the Health Services Appeal and Review Board if a Representative of the site has delivered to me, at the address below, and to the Health Services Appeal and Review Board (HSARB), by e-mail to hsarb@ontario.ca or faxed to the HSARB at 416-327-8524, notice in writing, requesting a hearing within fifteen (15) days after service of this Order or otherwise in accordance with applicable law.

AND TAKE FURTHER NOTICE THAT Although a hearing may be requested, this Order takes effect when it is served on the establishment.

FAILURE to comply with this order is an offence for which an individual may be liable, on conviction, to a fine of not more than $5,000.00 for every day or part of each day on which the offence occurs or continues.

[25] The Section 22 Order was served personally on the Respondent on November 25, 2021.

[26] On December 1, 2021, two private investigators attended Peterburgers on behalf of the PPH. The private investigators observed the following:

a. The staff of the establishment were not requiring dine-in patrons to provide, at the point of entry, proof of identification and proof of vaccine status.

b. The staff at the establishment were not recording the name and contact information of dine-in patrons.

c. No one, including staff and patrons, were observed wearing a mask or face covering within Peterburgers throughout the duration of the investigation.

d. No screening of dine-in patrons was conducted.

e. No one entering the establishment was asked to wear a mask or were requested to provide ID, vaccination status, or contact information.

f. The server was not wearing a mask or eye protection when approaching the investigators’ table and was believed to stand within 2 metres while unmasked.

g. A banner with the title “HOLD FAST”, along with an image of knight’s armour, was observed in the establishment.

h. A person believed to be Roy Asselstine shook one of the investigators’ hands.

i. Beside the cash register was a box of buttons for sale, including one that said “FACE MASK EXEMPT THANK YOU” and another that said “HOLD FAST”.

Analysis

[27] A communicable disease exists which presents a risk to the public. It is clear from R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (C.A.), para. 8, that the court can take judicial notice of the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge, including its mode of transmission and recommended methods to avoid its transmission.

[28] The Province has enacted legislation to put in place measures to control the spread of COVID-19. This legislation applies to the operation of restaurants.

[29] COVID-19 is currently present and circulating within the health unit served by PPH. Peterburgers is a restaurant operating within the health unit served by PPH.

[30] Multiple attempts have been made to work with the owners / operators of Peterburgers in order to educate them and to bring them into compliance without taking drastic measures. The attempts had no impact on the operation of the restaurant. Warnings and Provincial Offences Act charges have not had any impact on the continued non-compliance. The Acting Medical Officer of Health was authorized to act under section 22 of the HPPA and this was done. The Section 22 Order required the Respondent to achieve compliance with all requirements for a restaurant under the ROA or close the establishment. The Section 22 Order has, also, not had any impact.

[31] If the Respondent disagrees with the legality of the Section 22 Order, or the Regulations more broadly, they have an obvious remedy. Pursuant to s. 44(1) of the HPPA, and as directly outlined on the Order they received, they may require a hearing before the Health Services Appeal and Review Board by delivering a notice within 15 days of service of the order. To date, the Respondent has not delivered a notice requesting a hearing to PPH. One would think that if the Respondent feels strongly about this issue, they would use the means available to them to challenge the action taken.

[32] The reality is that the Respondent has not sought a review and has continued “business as usual”. Further the Respondent has been vocal about an intention not to comply.

[33] Despite the availability of a review hearing, s. 44(3) of the HPPA makes it clear that the Order takes effect when it is served on the person to whom it is directed.

[34] Further, s. 102 of the HPPA states that:

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. 2007, c. 10, Sched. D, s. 1 (10).

Proceedings to prohibit continuation or repetition of contravention

(2) Where any provision of this Act or the regulations is contravened, despite any other remedy or any penalty imposed, the Minister or the Chief Medical Officer of Health may apply to a judge of the Superior Court of Justice for an order,

(a) prohibiting the continuation or repetition of the contravention or the carrying on of any activity specified in the order that, in the opinion of the judge, will or will likely result in the continuation or repetition of the contravention by the person committing the contravention; and

(b) requiring the person committing the contravention to take any action that is, in the opinion of the judge, necessary or advisable for the purpose of reducing the likelihood of a continuation or repetition of the contravention. 2007, c. 10, Sched. F, s. 21.

Enforcement

(2.1) Where a judge has made an order based on an application under subsection (2), the order may be enforced in the same manner as any other order or judgment of the Superior Court of Justice. 2007, c. 10, Sched. F, s. 21.

[35] The HPPA provides for a statutory injunction, and the following factors apply:

a. The Applicant establish on a balance of probabilities a “clear breach” of an enactment;

b. The Applicant does 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. Hardship from the injunction will generally not outweigh the public interest, however equity is to be considered;

f. It remains more difficult to obtain a mandatory injunction;

g. Where a public authority seeks injunctive relief, the public interest in having the law obeyed will generally outweigh balance of convenience and irreparable harm.

The court retains a residual discretion to decline to grant an order in exceptional circumstances, including where the offending party has ceased or provides evidence they will cease the offending conduct, the injunction is moot or will serve no purpose, there is a right that pre-existed the enactment that was breached, there is uncertainty regarding whether the offending party is committing the offending conduct, or where the conduct is not the type of conduct that the enactment was intended to prevent. See: Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., 2021 ONSC 7473 at para. 25, citing Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7679 at paras. 16-21

[36] There is no question that the Respondent has contravened and intends to continue to contravene the Section 22 Order. The ROA has not been declared invalid and therefore must be followed. This Court has a duty to uphold valid laws.

[37] This Court is satisfied that an Order under section 102(1) of the HPPA is necessary in order to restrain the continued contravention of the Section 22 Order, and is necessary to reduce the risk to the health of persons residing in the Health Unit.

[38] Having said that, however, this Application is brought without notice. This Court is concerned that the Respondent has not had a voice in this decision and may very well have submissions to make with respect to exceptional circumstances or other reasons this Order should not be made.

[39] Given the immediate concern, this court is willing to order an interim interlocutory injunction, however, is not prepared to make this order permanent without allowing the Respondent to respond and participate, if they choose to do so.

[40] While this court appreciates that there is no time limitation on Orders made under s. 102 of the HPPA, it is the view of this court that it is unfair not to read this requirement in, as typically on an interim interlocutory injunction 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).

[41] For all of the foregoing reasons, an interim interlocutory injunction is granted on terms set out in the Order signed by me on today’s date.

[42] This matter shall be brought back before the court for a further hearing on Tuesday, the 14^th day of December, 2021 at 9:30 a.m. by Zoom, or at another time agreed upon by the parties, subject to court availability, at which time the court will receive submissions from the Respondent 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 December 3, 2021.

[43] A copy of this ruling and the Order are to be served upon the Respondent as soon as practicable.

Justice V. Christie

Date: December 3, 2021