Court File and Parties

COURT FILE NO.: CV-21-00000298-0000 DATE: February 11, 2022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacqueline A. Banas and Banas Family Restaurant Inc. o/a Wild Wing Restaurant, Applicants AND: Her Majesty the Queen in Right of Ontario, Respondent

BEFORE: Justice Patrick Hurley

COUNSEL: Nirmala Armstrong and Amanda Armstrong, for the Applicants S. Zachary Green and Ryan Cookson, for the Respondent

HEARD: November 26, 2021

Endorsement

[1] The applicants operate a restaurant in Belleville. On November 26, 2021, I granted an application by the respondent Her Majesty the Queen in Right of Ontario for a restraining order against the applicants under s. 9 of the Reopening Ontario (A Flexible Response to COVID – 19) Act, 2020, S. O. 2020, c. 17 (the “ROA”).

[2] This application is a constitutional challenge to the ROA, the Emergency Management and Civil Protection Act, R. S. O. 1990, c. E.9 (the “EMCP”) and regulations made pursuant to those statutes, the principal one being regulation 364/20 under the ROA (which I will refer to as the Step 3 Regulation).

[3] In the notice of application, the applicants seek wide ranging relief: 15 orders and 30 declarations under, respectively, ss. 59 and 97 of the Courts of Justice Act, R. S. O. 1990, Chap. C.4.

[4] I will first review the procedural history of both applications because it has an impact on the relief being sought.

[5] The Crown is entitled, under s. 9 of the ROA, to apply for a restraining order on an ex parte basis. However, in this case, it advised Ms. Banas of its intention to do so and she retained counsel who said they had instructions to bring an application challenging the constitutionality of the legislative provisions and argued that both applications should be heard at the same time.

[6] I conducted two case conferences under rule 50.13 of the Rules of Civil Procedure in order to give procedural directions about the hearing of the applications and the delivery of material in support of them. I ruled that the Crown’s application would proceed first and set timelines for the exchange of records and factums and the service of a Notice of Constitutional Question.

[7] The hearings were scheduled for November 25 and 26, 2021. I indicated that, if I granted a restraining order, the constitutional application would be heard the next day but, if I declined it, there would be no need to proceed with this hearing.

[8] The basis for the restraining order was the applicants’ failure to comply with the Step 3 Regulation in four respects, all of which apply to customers who dine in the restaurant:

i. They did not require them to wear a mask or face covering.

ii. They did not require them to provide proof that they had been vaccinated against COVID-19.

iii. They did not require their name and contact information.

iv. They did not take any steps to screen either employees or customers for COVID-19 symptoms or recent exposure to an infectious person.

[9] I heard the Crown’s application on November 25 and gave an oral decision the next morning granting a restraining order. The operative term was:

THIS COURT ORDERS that the Respondents, their employees, agents, assigns, officers, directors and anyone else acting on their behalf or in conjunction with any of them are restrained from directly or indirectly, by any means whatsoever, in respect of the business operated as Wild Wing Belleville, currently located at 366 North Front Street in Belleville, Ontario, contravening Ontario Regulation 364/20 or any other continued section 7.0.2 order, as defined in section 1 of the Reopening Ontario ( A Flexible Response to COVID-19) Act, 2020, S. O. 2020, c. 17, that applies or may subsequently apply to the Respondents in respect of the operation of the business currently operated as Wild Wing Belleville.

[10] I found, on the evidence, that the applicants were breaching the Step 3 Regulation in the manner alleged by the Crown and would continue to do so unless restrained by court order. Although the application had been brought on notice, I directed that a “comeback” motion be scheduled at the request of the parties to consider whether or not the order should be set aside, varied or terminated. The parties have not, to date, made such a request.[^1]

[11] At the conclusion of my oral decision, I told counsel that the constitutional application could be adjourned if they wanted an opportunity to conduct cross-examinations or file additional evidence. They were content to proceed with the hearing on the evidentiary record before me.

The scope of this application

[12] As I stated at the outset, the applicants’ claim for relief is extensive, far beyond matters that would substantively affect the operation of the restaurant. Essentially, they seek to dismantle, almost in its entirety, the legislative response to the COVID-19 pandemic.

[13] I agree with the Crown’s position that Ms. Banas does not have the legal standing to challenge statutory provisions or state actions that do not have an impact on her personally nor can the applicants seek a remedy on behalf of other parties: Ernst v. Alberta Energy Regulator, 2017 SCC 1 at para. 22 and Campisi v. Ontario, 2017 ONSC 2884 at paras. 8 – 9.[^2]

[14] This is not to say that Ms. Banas’ constitutional rights are inextricably entwined with her business. She can assert an infringement of her rights and, if established, seek a remedy for that infringement. But she cannot pursue a legal claim that is founded solely on an ideological objection to government policy and laws that have no practical impact on her personally nor can the corporate applicant assert a claim based on an alleged violation of its customers’ constitutional rights.

The evidentiary record

[15] The application is supported by the affidavits of Ms. Banas, two customers of the restaurant, Bryson Johnson and his girlfriend Elysse Ireland, and an employee, Thomas Thompson. Much of the affidavit evidence consists of argument, conjecture and presupposition.

[16] Ms. Banas specifically acknowledges in her affidavit that she has no expertise in virology or immunology. Nor does she have any proficiency in epidemiology and public health medicine. Rather, the applicants rely on internet research to underpin their assertions about the fallibility of the public health measures taken during the COVID-19 pandemic. The research is reflected in the numerous exhibits attached to her affidavit. This form of evidence in an application should be given little or no weight: Dia v. Calypso Theme Waterpark, 2021 ONCA 273 at paras. 18-19.

[17] The other witnesses express their personal experiences with certain of the requirements under the Step 3 Regulation – mainly masking and proof of vaccination status – and their skepticism about the efficacy of them. In summary, they view them as ineffective and discriminatory.

[18] In response, the Crown filed an affidavit from Dr. Matthew Hodge. He is a physician and holds a doctorate in epidemiology and biostatistics. He has significant experience in public health. Attached as an exhibit to his affidavit was a signed acknowledgement of expert’s duty under rule 53.03.

[19] In this affidavit, he describes at length the harm caused by COVID-19, the methods of transmission and the public health measures implemented by the Ontario government to mitigate the risk to the public from this contagious disease.

[20] He explained the rationale for these measures from the public health perspective at paras. 5-7:

I make three preliminary observations. First, my opinions are informed by the realities of public health practice in Ontario. These include the need to prepare advice and make decisions with imperfect information, and the challenge of minimizing adverse effects of measures that establish limits on human behaviour. Ontario’s Health Plan for an Influenza Pandemic, (“OHPIP”), explicitly recognizes this reality of incomplete information, noting that “the OHPIP severity model includes an initial stage before severity is known when the limited availability of surveillance data does not allow for confident identification of severity. The severity may not be clearly known until after an influenza pandemic is over”. For COVID-19, the rise of variants with increased transmissibility and, for some variants, increased severity of illness, has added additional uncertainty.

Second, public health measures in Ontario must consider the precautionary principle. The OHPIP states “The MOHLTC does not await scientific certainty before taking action to protect health”. The precautionary principle is particularly relevant during a pandemic’s early stages when scientific evidence on the severity of a novel virus is limited or, for COVID-19, as new variants are identified whose transmissibility and severity are incompletely understood at the time that government must make decisions to protect Ontarians from infection, illness, and death.

Third, my opinions are informed by the burden model, which recognizes that it is generally appropriate to implement more restrictive public health measures when an infectious disease imposes a higher burden. This notion of burden can be understood as a function of the prevalence of the disease (i.e., number of cases in a population), the exposure risk (i.e., the probability that one infected person will infect others), and the consequences of infection, such as hospitalization and death. This is complemented by the general principle that reducing risks to human health typically requires a multilayered approach to intervention. Scientific methods such as randomized trials can provide high quality evidence as to which interventions are likely to be most effective, but not all interventions or public health measures can be evaluated through randomized trials. At the core of public health practise is the need to reduce burdens to human health in the face of both uncertainty and less than perfect scientific evidence.

The legal arguments

[21] The applicants’ oral submissions were limited to the masking and proof of vaccination status requirements under the Step 3 Regulation. As a result, I will focus on the constitutionality of these provisions.

[22] They contend that these provisions infringe ss. 2, 7, 8 and 15 of the Charter of Rights and are not saved by s. 1. Therefore, these provisions should be declared of no force and effect under s. 24 of the Charter and s. 52 of the Constitution Act, 1982.

[23] The respondent says there has been no infringement of the Charter and, even if there was, the legislation is justified under s. 1. The main thrust of their argument is that the Charter protects personal rights, not a purely economic interest (in this case, operating a business free of government regulation) and, in any event, there has been no infringement of Ms. Banas’ Charter rights.

[24] The applicants also rely in their factum on s. 36 of the Constitution Act,1982, s. 92(14) of the Constitution Act,1867 and what they characterize as fundamental democratic and constitutional principles, written and unwritten. These were not addressed during submissions. I agree with the respondent’s position that ss. 36 and 92(14) do not apply on the facts of this case. Nor do unwritten legal principles, constitutional or otherwise, grant me the authority to declare written laws of no force and effect: Toronto (City) v. Ontario (Attorney-General), 2021 SCC 34 at para. 63.

[25] I turn now to applicants’ arguments under the Charter.

[26] S. 2 provides:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[27] Obviously, religion has nothing to do with this case. Ms. Banas says she has a conscientious objection to the mask and vaccination requirements. But that does not mean the mask and vaccination requirements infringe her freedom to hold and maintain this objection.

[28] Similarly, she maintains the same freedom to hold whatever thoughts, beliefs and opinions she has about COVID-19; whether the legal requirements are good or bad; and should or should not be imposed by the government. She is also free to express these beliefs. None of the impugned provisions limit her ability to do so.

[29] She can peacefully assemble and associate with people as much as she wants in and outside her restaurant. Potential customers may not care to dine at a restaurant because of the mask and vaccination requirements: that is their right in a free and democratic society.

[30] S. 7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[31] According to Ms. Banas, masking and vaccine requirements indirectly increase the risk of death and directly affect her physical and mental health. They interfere with her personal autonomy. She avers that her employees and customers are similarly impacted.

[32] Ms. Banas appears to accept that laws aimed at protecting the health and safety of her employees and customers are a good thing. There is no evidence to support her claims that the requirements under the Step 3 Regulation adversely affect her physical and mental health. If anything, the evidence points to the opposite conclusion. Moreover, she does not have to be vaccinated in order to operate the restaurant. Masking in the presence of customers is a minor inconvenience.

[33] It is settled law that s. 7 does not grant the right to engage in an economic activity free of government regulation: Siemens v. Manitoba (Attorney-General), 2003 SCC 3 at para. 45 – 46.

[34] S. 8 provides:

Everyone has a right to be secure against unreasonable search or seizure.

[35] There is no evidence that any state agent has searched the applicants’ place of business or home or seized any property. Indeed, Ms. Banas says that she has cooperated with the inspections of the business premises by employees of the local health unit.

[36] She argues that the restraining order under s. 9 of the ROA, because it requires her to comply with the Step 3 Regulation, is a seizure of her property. It is not.

[37] S. 15(1) provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[38] The applicants submit that what they call a “mandatory vaccine passport” is discriminatory, because it indirectly promotes systemic racism as people of colour are, they say, disproportionately unvaccinated and adversely affects religious adherence because COVID-19 vaccines contain aborted fetal tissue. They complain of a “medical apartheid” in the country, segregating the unvaccinated from the vaccinated.

[39] This is noxious rhetoric. There is no evidence of any differential impact on any ground protected by s. 15.

[40] If I am wrong in these conclusions, the regulatory measures at issue are, I find, reasonable limits under s. 1 of the Charter. The law serves a pressing and substantial objective, is rationally connected to the objective, is minimally impairing, and not disproportionate in its effects.

[41] There is now a substantial body of jurisprudence that has examined the far-reaching consequences of the COVID-19 pandemic and the deferential role that a court should take in assessing the government’s efforts to control the serious public health consequences of it. This requires a delicate balancing of the public good and individual rights which is best addressed by the legislative assembly.

[42] It is also important to note that the evidence before me overwhelmingly supports the reasonableness of the Step 3 Regulation. And it is evidence that decides cases, not information culled from the internet and appended as exhibits to an affidavit.

Disposition

[43] The application is dismissed. The parties exchanged cost outlines at the conclusion of both hearings at my direction. I will accept written submissions from them of no more than two pages in addition to the cost outlines. The Crown, as the successful party, should deliver it submissions within 10 days of the date of the release of this decision. Ms. Banas will have 10 days in which to reply. Upon receipt of her submissions, the Crown will email all of the submissions and cost outlines to my judicial assistant at Mary-Ann.Valiquette@ontario.ca.

Date: February 11, 2022

Hurley, J

[^1]: This was the procedure followed by Kimmel, J. in Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7679 [^2]: Aff’d 2018 ONCA 869, leave to appeal to the SCC refused [2019] S.C.C.A. No. 52.