CITATION

CITATION: Skelly v. Ontario, 2026 ONSC 1582

COURT FILE NO.: CV-22-00683592-0000

DATE: 20260317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES ADAMSON SKELLY

Applicant

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, THE CITY OF TORONTO, THE BOARD OF HEALTH FOR THE CITY OF TORONTO AND EILEEN DE VILLA

Respondents

Ian Perry and Julian Shephard, for the Applicant

Padraic Ryan and Adam Kouri for His Majesty the King in Right of Ontario, Penelope Ma and Kirsten Franz for the City of Toronto, Board of Health for the City of Toronto and Eileen de Villa

HEARD: February 25, 26, and 27, 2026

leiper, J.

REASONS FOR DECIsION

(APPLICATION FOR CHARTER RELIEF AND JUDICIAL REVIEW)

Introduction

1The Applicant, William Adamson Skelly (the “Applicant”), brought an application for relief under the Canadian Charter of Rights and Freedoms (the “Charter”) and by way of constitutional challenges to sections of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c 17 (the “ROA”), the Emergency Management and Civil Protection Act R.S.O. 1990 c E.9, s. 7.0.1 (the “EMCPA”) and to Ontario Regulation 82/20 (“O. Reg. 82/20”).

2The Applicant seeks declarations that his Charter rights were breached by an order, directions, and a trespass notice issued by the Respondent, Dr. Eileen de Villa, in her capacity as the Toronto Medical Officer of Health (the “MOH”). The MOH took those steps in response to the Applicant’s decision to open his barbecue restaurant to indoor dining. The Applicant disagreed with the pandemic measures that came into force in Toronto under the ROA and O. Reg. 82/20 that affected his business and chose to defy the law in protest.

3In response to his announcement, the MOH issued an order pursuant to s. 22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (the “HPPA”), directions for the enforcement of that order pursuant to s. 24 of the HPPA, and a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T. 21 (the “Trespass Act”). The Applicant alleges that these actions were improper and infringed on his rights under the Charter.

4The Applicant seeks declarations that the MOH and the Toronto respondents acted outside the scope of their authority under the HPPA and the Trespass Act. Initially, the Respondents submitted that this part of the applicant’s application is a request for judicial review which ought to have been initiated in the Divisional Court pursuant to the Judicial Review Procedure Act, RSBC 1996, c 241 (“JRPA”). However, at the hearing of the application, all parties submitted that this court should hear any matters that constitute judicial review.

Overview

5The evidence from the Applicant is that prior to the pandemic he and a co-owner operated three unique barbecue restaurants. These restaurants were successful. They employed several dozen employees and offered a unique “Texas-style” barbecue experience which the Applicant describes as best shared at large tables and served in a dine-in style.

6The initial stages of the pandemic response included lockdowns of businesses. As with many businesses, the Applicant’s restaurant business suffered financial hardship. Restaurant revenues declined and he had to lay off some of his staff.

7In the fall of 2020, COVID-19 rates began to rise. Politicians and public health officials began discussing restrictions to contain the rate of transmission. There was public debate about the merits of closing or restricting certain businesses. The Applicant was concerned about the impact of another round of restrictions which would negatively impact his business again.

8In October of 2020, the Applicant wrote to municipal and provincial politicians expressing his disagreement with lockdown measures that he believed unreasonably prejudiced small businesses in Ontario.

9When a new set of restrictions under the ROA came into effect in Toronto as of November 23, 2020, under O. Reg 82/20 and the “Rules for Stage One”, the Applicant decided to defy the law in protest. His choice to protest in this manner led to legal consequences for him and for Adamson Barbecue Limited. The Applicant has described the legal response to his protest as “a coordinated and vicious response by the Province and the City”. The Applicant’s actions and the government response to those actions, led to this application.

10For the reasons below, I conclude that the provincial legislation is intra vires the provincial government. I dismiss the judicial review of the actions taken by the MOH and the City of Toronto. I find that the Charter rights of the Applicant were not infringed. Had any of his rights been infringed by the provincial legislation, or by the actions of the MOH or the City of Toronto, I would find that the law and the actions of the MOH and Toronto were justified pursuant to s.1 of the Charter. I dismiss the application.

The Events of November 23-26, 2020

11On the evening of November 23, 2020, the Applicant announced on the restaurant’s social media account that he would be opening his Etobicoke barbecue restaurant for indoor dining in protest of the legislation, due to the impact on his business and on other small businesses. His post was viewed widely and attracted approximately 20,000 comments.

12Several members of the public complained to the City of Toronto about the social media post and the Applicant’s announcement that he intended to open his restaurant for indoor dining contrary to the legislation.

13The Applicant opened his restaurant on November 24, 2020. Members of the public attended to purchase and consume food within the restaurant. Others did not purchase food but attended in support of the Applicant’s protest. The Applicant explained that he arranged seating to maintain distance. Despite the cooler weather, he opened a set of bay doors to maximize ventilation. The Applicant’s affidavit stated his belief that his protest had not led to any outbreak of COVID-19 among those who attended.

14On November 24, 2020, a public health inspector attended the restaurant. The inspector observed that the Applicant was offering indoor dining, in contravention of O. Reg 82/20 which set out the “Rules for Areas in Stage 1.” This information was provided to the MOH.

15The MOH issued a section 22 order under the HPPA to the Applicant and to Adamson Barbecue Limited which required them to “Immediately close the [restaurant] and keep it closed until [they] are authorized in writing to reopen by Toronto Public Health.”

16On November 25, 2020, the Applicant again reopened his restaurant for indoor dining, contrary to the s. 22 order from the MOH. In response, the MOH issued directions under s. 24 of the HPPA. That order directed Municipal Licensing Services, Toronto Public Health and Toronto Police Services to “take actions necessary to ensure that the [restaurant] is and remains closed, and that access to the [restaurant] is restricted until such time as the Order has been lifted. The authorities issued six provincial offences to the Applicant as an officer of Adamson Barbecue Limited and to Adamson Barbecue Limited, under s. 10 of the ROA for breaches of the ROA and O. Reg 82/20. The Applicant continued to voice his opposition and his intention to have the restaurant remain open in protest.

17On November 26, 2020, a locksmith hired by Toronto attended to change the locks on all doors to the restaurant to restrict access to the restaurant. The Toronto Police Services (“TPS”) dispatched a significant police presence to the restaurant. Officers formed a ring around the perimeter of the building to prevent entry to the restaurant. The MOH issued a trespass notice to the Applicant under the Trespass Act. That notice advised him that he was not permitted to access or enter the restaurant.

18On November 26, 2020, the Applicant went to the restaurant and although it had been locked by the locksmith retained by the City of Toronto, he was able to enter through an adjoining building and an interior door. From inside the restaurant, he then kicked open the locked entry door to permit the public to enter. Again, he began serving food to members of the public in protest of the law. His actions were captured on film by a bystander who posted the video to social media.

19The TPS arrested the Applicant and charged him with Mischief Under $5,000 contrary to s. 430(4) of the Criminal Code, RSC 1985, c C-46 (the “Criminal Code”) and Obstruct a Peace officer, contrary to s. 129(a) of the Criminal Code. The Applicant was also charged with several provincial offences, including failing to comply with a continued s. 7.0.2 Order under the ROA, failing to obey an order made under the HPPA, and entering his premises when prohibited contrary to the Trespass Act. The Applicant has since entered guilty pleas to these offences, and his sentencing has been adjourned pending a decision in this application.

20After the events of November 23-26, 2020, Ontario, the Applicant and the City of Toronto engaged in related civil, regulatory and criminal proceedings. I describe those here in chronological order, because they are relevant to the procedural objections raised by Toronto and Ontario and because they help to explain why this application is being heard over five years after the events that led to it.

The Legal Proceedings Following the Events of November 23-26, 2020

21After the restaurant was closed, the Attorney General of Ontario brought an application to the Superior Court of Justice to restrain the Applicant from operating his business in contravention of the ROA and O. Reg. 82/20. On December 4, 2020, Kimmel, J. granted an order against the Applicant based on the evidence of his disregard of public health orders issued by the MOH.

22In Her Majesty the Queen in Right of Ontario v. Adamson Barbecue Limited, 2020 ONSC 7679, at paras. 31-32, Kimmel, J. noted that the Applicant and the corporate respondents did not raise any constitutional issues with the legislation or the orders made against Adamson Barbecue Limited.

[23] On December 8, 2020, the Applicant and Adamson Barbecue Limited through their former lawyer (not counsel on this application) sent a letter to the Health Services Appeal and Review Board (“HSARB”) asking for a hearing to appeal the s. 22 HPPA order made by the MOH.

24On December 10, 2020, the MOH issued a letter to the Applicant permitting him access to the restaurant for maintenance, cleaning or obtaining personal effects.

[25] On December 14, 2020, MOH lifted the s. 22 HPPA order based on information that the Applicant was complying with the order. This step ended the s. 24 HPPA direction and the Trespass Notice.

26The Applicant’s counsel wrote to the HSARB to advise that the s. 22 order had been lifted and that he was withdrawing his request for an appeal of the s. 22 order by the MOH. On January 5, 2021, the Applicant contacted the Board. He requested that his appeal be reopened because he had received a collection notice from Toronto Public Health seeking to recover the significant costs of enforcement of the HPPA.

27The HSARB convened a case conference. At that conference, the Applicant raised the enforcement direction under s. 24 of the HPPA as his principal concern, and the fines he had received under the ROA. Toronto submitted that the Applicant would need to bring proceedings challenging the s. 24 direction in the Superior Court of Justice and not before the HSARB.

28The HSARB invited written submissions from the parties on whether it should re-open the Applicant’s appeal. Toronto Public Health submitted that the appeal should be dismissed as moot. The Applicant made no submissions.

29On February 1, 2021, the Applicant, through his previous counsel, filed a notice of motion in the Superior Court of Justice seeking to set aside the order made by Kimmel, J. He included Charter challenges to the legislation and to the s.22 order made the MOH. On the return of that motion, Akbarali J. found that she did not have jurisdiction to hear the Applicant’s constitutional challenges, because he had failed to follow the appropriate procedure. Justice Akbarali dismissed the Applicant’s motion, without prejudice to his right to argue his constitutional challenge after issuing a proper originating notice: Skelly v. His Majesty the King in Right of Ontario, 2023 ONSC 6533.

[30] On February 22, 2021, Vice-Chair Goldberg of the HSARB released reasons finding that the Applicant’s appeal from the s. 22 HPPA order by the MOH was moot, because the s. 22 order had been rescinded. Vice-Chair Goldberg noted that the HSARB’s powers on appeal are to “confirm, alter or rescind an order” made under the HPPA. Vice-Chair Goldberg applied the principles in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; 1989, and concluded, among other things, that no live controversy existed between the parties. This meant that the HSARB proceedings ended without any adjudication on the merits of the MOH’s decision to issue the s. 22 order.

31On March 10, 2021, the City of Toronto issued a statement of claim against the Applicant seeking its costs of $187,466.39 pursuant to s. 24(5) of the HPPA. Section 24(5) permits the Board of Health to seek reimbursement for the cost of enforcing public health measures from the person who is issued a s. 22 order.

32On March 16, 2022, Ontario revoked O. Reg 82/20 which included the prohibition on indoor dining in restaurants for any communities, including Toronto, at Step 1 of Ontario’s re-opening framework.

33On June 30, 2022, the Applicant issued his Notice of Application. In September of 2022, the parties attended Civil Practice Court. Ontario opposed scheduling a hearing date for this application prior to its motion to seek security for its costs of this application.

34On September 8, 2023, Associate Justice McAfee heard Ontario’s security for costs motion. Associate Justice McAfee ordered the Applicant to post $30,000 in security for costs to bring this challenge, and assessed costs of the motion payable by the Applicant at $2,000.

35On July 8, 2024, the Applicant paid the required security for costs to the Accounting Clerk of the Superior Court of Justice and the costs of the motion of $2,000.

36On March 18, 2025, the Applicant pleaded guilty to the offences against him under the Criminal Code, the ROA and the Trespass Act. He did not argue any Charter infringements in the Ontario Court of Justice. According to an agreement in writing signed by the Applicant and the prosecutor, his sentencing on these charges is adjourned pending the outcome of this application.

37On August 5, 2025, Chalmers, J. scheduled this application to be heard over three days on February 25, 26 and 27, 2026. The Respondents, Ontario and Toronto, did not object to the scheduling of the application at that time.

38I turn now to the issues on the application as defined by the parties.

The Issues

39There are several procedural and substantive issues involved in this application. The Applicant modified some of his positions at the hearing, which in turn led to modifications from the respondents, Ontario and Toronto. The following are the issues to be decided:

The Procedural Issues

a. Should the Applicant’s supplementary affidavit attaching the amended prosecution agreement be received in the record?

b. Should the Applicant have brought this application challenging the actions of the MOH as an application for judicial review pursuant to the JRPA? If so, can and should this court hear the application?

c. Should the Applicant’s challenge to the HPPA s. 22 order be dismissed as a collateral attack on an administrative order?

The Substantive Issues

d. Are the ROA, the ECMPA or Regulation 82/20 ultra vires the province pursuant to s. 92 of the Constitution Act, 1867?

e. Do the relevant sections of the ROA and O. Reg. 82/20 infringe on the Applicant’s rights under any of s. 2(b), s. 2(c), or s. 7, 8 or 9 of the Canadian Charter of Rights and Freedoms?

f. If any relevant sections of the ROA and O. Reg. 82/20 infringe on the Applicant’s Charter rights, are any of those sections saved by operation of s. 1 of the Charter?

g. Did the MOH have the authority to exercise her powers under s. 22 and 24 of the ROA, and the Trespass Act to require and enforce the closure of the Adamson Barbecue restaurant? In exercising that authority, did the MOH violate the Applicant’s Charter rights?

h. If Toronto breached any of the Applicant’s rights under the Charter, were those actions justified under s.1?

40In the next section, I describe the legal framework engaged by these issues.

The Legal Framework

The Relevant Public Health and COVID-19 Legislation

41On March 17, 2020, Ontario declared a state of emergency under the EMCPA in response to the COVID-19 pandemic. Ontario issued orders pursuant to s. 7.0.1 of the EMCPA that, among other things, regulated the conduct of businesses in Ontario, including restaurants.

42On March 23, 2020, the City of Toronto declared a state of emergency.

43On July 24, 2020, Ontario enacted the ROA which continued several of the s. 7.01 orders made under the EMCPA, by way of O. Reg. 82/20. The ROA contained a framework for determining the level of restrictions to apply in Ontario communities based on epidemiological evidence and the goal of reducing the spread of COVID-19. This framework can be found in Ontario Regulation 363/20 to the ROA.

44The relevant provisions of O. Reg. 82/20 under the ROA came into effect on November 23, 2020. Schedule 2, s. 3(1) and 3(2) prohibited indoor dining in Toronto restaurants (subject to exceptions which do not apply here) which reads:

Schedule 2 Businesses that may Open

3. (1) Restaurants, bars, food trucks, concession stands and other food or drink establishments that meet the conditions set out in subsection (2).

(2) A business described in subsection (1) may open only for the purpose of providing take-out, drive-through or delivery service.

45Section 10 of the ROA creates offences for breaches of O. Reg 82/20 which incorporates orders made under s. 7.01 of the EMCPA. The Applicant as a director of Adamson Barbecue Limited and as a person responsible for the business was required to ensure his business met the conditions under the ROA and O. Reg 82/20 or was closed. The Applicant in his capacity as a director, and Adamson Barbecue Limited received offence notices under s. 10(1)(b) and (c) of the ROA. Those provisions read as follows:

Offences

10 (1) Every person who fails to comply with subsection 9.1 (2) or (3) or with a continued section 7.0.2 order or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by such an order is guilty of an offence and is liable on conviction,

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c) in the case of a corporation, to a fine of not more than $10,000,000.

46The HPPA is public health legislation that grants statutory powers to a medical officer of health. It includes a process whereby those affected by an order may apply for a review to the HSARB. The relevant sections in this application are s. 22, s. 24, s. 44 and s. 46. Those sections read as follows:

Order by M.O.H. re communicable disease

22 (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order may require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease.

Condition precedent to order

(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.

Time

(3) In an order under this section, a medical officer of health may specify the time or times when or the period or periods of time within which the person to whom the order is directed must comply with the order.

What may be included in order

(4) An order under this section may include, but is not limited to,

(a) requiring the owner or occupier of premises to close the premises or a specific part of the premises;

(b) requiring the placarding of premises to give notice of an order requiring the closing of the premises; requiring any person that the order states has or may have a communicable disease or is or may be infected with an agent of a communicable disease to isolate himself or herself and remain in isolation from other persons;

(c) requiring the cleaning or disinfecting, or both, of the premises or the thing specified in the order;

(d) requiring the destruction of the matter or thing specified in the order;

(e) requiring the person to whom the order is directed to submit to an examination by a physician and to deliver to the medical officer of health a report by the physician as to whether or not the person has a communicable disease or is or is not infected with an agent of a communicable disease;

(f) requiring the person to whom the order is directed in respect of a communicable disease that is a virulent disease to place himself or herself forthwith under the care and treatment of a physician;

(g) requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection.

Person directed

(5) An order under this section may be directed to a person,

(a) who resides or is present;

(b) who owns or is the occupier of any premises;

(c) who owns or is in charge of any thing; or

(d) who is engaged in or administers an enterprise or activity,

in the health unit served by the medical officer of health.

Reasons for order

(7) An order under this section is not effective unless the reasons for the order are set out in the order.

Directions by M.O.H.

24 (1) A medical officer of health, in the circumstances specified in subsection (2), may give directions in accordance with subsection (3) to the persons whose services are engaged by or to agents of the board of health of the health unit served by the medical officer of health.

When M.O.H. may give directions

(2) A medical officer of health may give directions in accordance with subsection (3) where the medical officer of health is of the opinion, upon reasonable and probable grounds, that a communicable disease exists in the health unit and the person to whom an order is or would be directed under section 22,

(a) has refused to or is not complying with the order;

(b) is not likely to comply with the order promptly;

(c) cannot be readily identified or located and as a result the order would not be carried out promptly; or

(d) requests the assistance of the medical officer of health in eliminating or decreasing the risk to health presented by the communicable disease.

Contents of directions

(3) Under this section, a medical officer of health may direct the persons whose services are engaged by or who are the agents of the board of health of the health unit served by the medical officer of health to take such action as is specified in the directions in respect of eliminating or decreasing the risk to health presented by the communicable disease.

Idem

(4) Directions under this section may include, but are not limited to,

(a) authorizing and requiring the placarding of premises specified in the directions to give notice of the existence of a communicable disease or of an order made under this Act, or both;

(b) requiring the cleaning or disinfecting, or both, of any thing or any premises specified in the directions;

(c) requiring the destruction of any thing specified in the directions.

Recovery of expenses

(5) The expenses incurred by a board of health in carrying out directions given by a medical officer of health in respect of a communicable disease may be recovered with costs by the board of health from the person to whom an order is or would be directed under section 22 in respect of the communicable disease by action in a court of competent jurisdiction.

Right to hearing

44 (1) An order by a medical officer of health or a public health inspector under this Act shall inform the person to whom it is directed that the person is entitled to a hearing by the Board if the person mails or delivers to the medical officer of health or public health inspector, as the case requires, and to the Board, within fifteen days after a copy of the order is served on the person, notice in writing requiring a hearing and the person may also require such a hearing.

Powers of Board

(4) Where the person to whom an order is directed requires a hearing by the Board in accordance with subsection (1) or (2), the Board shall appoint a time and place for and hold the hearing and the Board may by order confirm, alter or rescind the order and for such purposes the Board may substitute its findings for that of the medical officer of health or public health inspector who made the order.

Appeal to court

46 (1) Any party to the proceedings before the Board under this Act may appeal from its decision or order to the Divisional Court in accordance with the rules of court.

The Trespass Act

47On November 26, 2020, the MOH submits that she invoked her power as an occupier under the Trespass Act to give notice to the Applicant.

48Section 1(1) of the Trespass to Property Act defines an “occupier” as including:

a. A person who is in physical possession of premises, or

b. A person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises even if there is more than one occupier of the same premises;

49The Trespass Act, s. 5(1) provides that:

A notice under this Act may be given,

(a) Orally or in writing;

(b) By means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or

(c) By means of the marking system set out in section 7.

50The Trespass Act, s. 8 provides that “A notice or permission under this Act may be given in respect of any part of the premises of an occupier.”

51Toronto submits that the Applicant’s challenge to the jurisdiction of the MOH to issue orders under ss. 22, 24 and the Trespass Act are only justiciable via judicial review. This submission flows from the JRPA.

The Judicial Review Procedure Act

1 In this Act,

“application for judicial review” means an application under subsection 2 (1);

“court” means the Superior Court of Justice;

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party;

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, and includes the powers of an inferior court.

2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

Time for bringing application

5 (1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

Extension

(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

Same, other Acts

(3) Subsection (2) applies with respect to any limitation of time for the bringing of an application for judicial review under any other Act, unless that Act expressly provides otherwise.

Transition

52(4) Subsection (1) applies with respect to the judicial review of a decision that is made or of a matter that occurs on or after the day section 2 of Schedule 10 to the Smarter and Stronger Justice Act, 2020 comes into force

Application to Divisional Court

6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.

Application to judge of Superior Court of Justice

(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

Transfer to Divisional Court

(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.

Appeal to Court of Appeal

(4) An appeal lies to the Court of Appeal, with leave of the Court of Appeal, from a final order of the Superior Court of Justice disposing of an application for judicial review pursuant to leave granted under subsection (2)

The Charter of Rights

53The Applicant seeks declarations for Charter infringements under sections 2(b), 2(c), 7, 8 and 9 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. If there has been a breach of his rights, the Applicant seeks declarations of constitutional invalidity of the ROA provisions which affected him and O. Reg 82/20 pursuant to s. 52(1) of the Constitution Act, 1982.

54The relevant provisions read:

1. Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

FUNDAMENTAL FREEDOMS

(2) Everyone has the following fundamental freedoms:

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

(c) freedom of peaceful assembly;

LEGAL RIGHTS

Life, liberty and security of person

7 . 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.

Search or seizure

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

Detention or imprisonment

9 . Everyone has the right not to be arbitrarily detained or imprisoned.

General Primacy of Constitution of Canada

52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Recent Appellate Jurisprudence: Charter Oversight of Pandemic Measures

55The Court of Appeal has considered the issue of Charter challenges to pandemic measures in two recent decisions: Ontario v. Trinity Bible Chapel et al, 2023 ONCA 134, 166 O.R. (3d) 81, leave to appeal refused, [2023] S.C.C.A. No. 168 and Hillier v. His Majesty the King in Right of The Province of Ontario, 2025 ONCA 259, 175 O.R. (3d) 241.

56In Trinity Bible, the Court of Appeal upheld the motion judge’s decision declining to strike down charges laid against the appellants under the ROA by holding religious gatherings in excess of prescribed limits during the COVID-19 pandemic. The Court of Appeal found no error in the approach taken by the motion judge, including by concluding that it was reasonable for Ontario to put in place gathering limits based on the scientific and policy information known and available to Ontario at the time. The Court of Appeal found that these measures were a reasonable limit on the rights of freedom of religion which is protected under s. 2(a) of the Charter.

57The Court of Appeal found that the motion judge appropriately applied the precautionary principle as part of the s. 1 analysis. The motion judge reasoned that Ontario was not required to justify its policy choices to a “standard of scientific certainty,” writing:

Moreover, Ontario is not required to justify its choices on a standard of scientific certainty. That would set an impossible burden, particularly where, as here, the social problem defies scientific consensus. “The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened”: see Hutterian, at para. 37. I agree with Burrage J. in [Taylor v. Newfoundland and Labrador, 2020 NLSC 125], at para. 411 that: “given the emergent and rapidly evolving developments, the time for analyzing evidence shrinks, all the more so when the margin for error relates to serious illness and/or death.”

It is here that the precautionary principle is engaged. Conceived in connection with climate change, this principle is a key factor in matters of public health. It recognizes that, where there are threats of serious, irreversible damage, lack of full scientific certainty is not a reason to postpone harm reduction strategies. To wait for certainty is to wait too long. Clearly, Ontario was not required to wait for scientific unanimity on the properties of the pandemic before taking steps to prevent illness and death. We would still be waiting for that chimeric marker were it the catalyst for action.

Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344 at para. 145.

58In Hillier, the Court of Appeal determined that a complete ban on gatherings for the purpose of peaceful assembly, without exceptions such as by way of the number of persons entitled to gather, constituted an infringement on the appellant’s right to peaceful assembly as guaranteed by s. 2(c) of the Charter. In that instance, the Court of Appeal found that the legislation could not be justified under s. 1. The regulations at issue permitted gatherings for weddings, funerals, and religious services, with restrictions, but did not permit any outdoor peaceful assemblies for political purposes. After the appellant attended several outdoor gatherings to protest pandemic restrictions, he was charged with offences under the ROA.

59Section 2(c) guarantees the right to peaceful assembly and as such it focuses on public actions which aim to “confront others or to gain attention by disrupting ordinary life, or the ordinary use of public spaces.” Because such activity usually concentrates in public areas, “its message can (appear to) reach a general audience. Thus, a “demonstration is an act of solidarity, a coming together of similarly minded individuals, but also collective act of expression”: Hillier at para. 40.

60Although virtual protests and social media are alternative methods of protest, the Court of Appeal discussed the value of public protests in a common space which arises from three elements that are unique to public, in-person protests:

a. Such protests reflect “a desire to create a common space in which public engagement (politics) is possible,” and help overcome the fragmentation of public discourse;

b. A public demonstration bridges physical and emotional distance, brings individuals together, and gives those individuals a sense of presence, and connection with others, that does not exist in “mediated forms of communication.”

c. Protests make visible the extent of support for a position.

Hillier at para. 41.

61The Court of Appeal summarized the “contours” of the s. 2(c) right to assemble peacefully in a series of propositions found at para. 36 of the reasons in Hillier:

1. “[T]he act of assembling is the relevant constitutional event, and the value of it inheres in and attaches to the assembly, qua assembly.” As the “collective enactment or embodiment of individual expressive activity,” a s. 2(c) peaceful assembly can advance the democratic goals of “self-government, truth seeking, and self realization”. Moreover, the “capacity to empower unheard, marginalized voices is at the core of s.2(c)”.

2. An assembly is a “form of collective, not individual, action,” and “[t]he right of peaceful assembly is, by definition, a group activity incapable of individual performance”.

3. “[A]n assembly is a concerted bodily enactment”, or “a plural form of performativity”. It need not accompany “verbalization” to be a form of expressive political action.

4. An assembly includes a physical gathering of individuals in a physical space. There are two corollaries applicable to physical assemblies. First, freedom of assembly “includes activities that are ‘integral’ to the assembly, such as mobilizing resources, planning, preparing, and publicizing a gathering, and travelling to and from the assembly.” Second, “digital connectivity facilitates” but neither displaces nor replaces collective forms of expression; it “complements traditional means of participating in public assemblies.”

5. A public assembly can “leverage a message of protest or dissent, forcing the community to pay attention and become involved in redressing grievances.”

6. The core issue in determining whether the government limited s. 2(c) is assessed by analyzing whether “the government discouraged the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly.”

7. “[B]lanket bans that exclude or restrict an assembly because of its message or purpose are especially problematic.” They are “an ‘excessive restriction’ and ‘presumptively disproportionate’ for that reason. “In particular, assemblies with a political message should receive a ‘heightened level of accommodation and protection’.”

[Footnotes omitted]

62Deference to the legislature takes its meaning from the context of a challenged law or state action. In Hillier, the Court of Appeal found that “the COVID-19 pandemic required Ontario to act on an urgent basis, without scientific certainty, on a broad range of public health fronts. That context not only informs the degree of deference owed to government as the crisis shifted on the ground in real time, but also the heightened importance of vigilance by all branches of government over fundamental rights and freedoms during such times of crisis:” Hillier at para. 102.

63In Hillier, the Court of Appeal distinguished the restrictions on religious gatherings that were challenged in Trinity Bible from the complete ban on outdoor assembly for political protests. At the second step of the s. 1 analysis as to whether the measure was minimally impairing of the right in question, the Court of Appeal wrote:

An outright ban is different than, and leaves no room for, less onerous restrictions of the type considered in Trinity Bible Chapel. As the Supreme Court explained in Ford v. Quebec (Attorney General), “the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1.

Hillier at para. 46.

64I return to this jurisprudence below. These decisions provide important guidance for the issues in this application.

The Division of Powers and the Constitution Act, 1867

65The Applicant has submitted that the ROA and the EMCPA are within the exclusive jurisdiction of the federal government, pursuant to the Constitution Act, 1867, s. 91(11) and s. 91(27) and under the residual peace order, and good government power. Ontario submits that the ROA is valid provincial legislation falling within the exclusive jurisdiction of the provinces pursuant to s. 92 of the Constitution Act, 1867. The relevant provisions within s. 91 and 92 are:

91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

11. Quarantine and the Establishment and Maintenance of Marine Hospitals.

12. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

10. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

13. Property and Civil Rights in the Province.

14. Generally, all Matters of a merely local or private Nature in the Province.

66In the “Amended Amended” Notice of Application filed on the third day of argument, the Applicant abandoned the portions of his Application which sought relief pursuant to s. 36(1) of the Constitution Act, 1982. I will not discuss or include that provision further as a result.

67I turn next to the analysis of the issues in this application, beginning with the procedural issues.

A. Should the Applicant’s supplementary affidavit attaching the amended prosecution agreement be received in the record?

68The Applicant tendered a supplementary affidavit, sworn February 12, 2026, and served it on the Respondents after the parties had exchanged their materials and the period for cross-examinations had closed. That affidavit provided a copy of a March 18, 2025, agreement between the Applicant and the prosecutor in the criminal and provincial offences prosecution, which defers his sentencing to March 18, 2026, pending the outcome of this application. Counsel explained that he had overlooked including this document in the record. He sought to include it for context and background.

69Ontario made no submissions on the admissibility of the supplementary affidavit. Toronto submitted that the timing of the delivery of the supplementary affidavit was unfair and contrary to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

70I find that the Applicant should be permitted to file the supplementary affidavit attaching the March 18, 2025 prosecution agreement. This agreement forms part of the context of the proceedings. Counsel to the Applicant gave a reasonable explanation for its late delivery, which was that he inadvertently excluded the prosecution agreement from his application materials.

71I have also considered the fact that there is no apparent prejudice suffered by any party arising from the Applicant’s late filing of the prosecution agreement. Although, as Toronto submits, the Applicant delivered the supplementary affidavit after the close of cross-examinations, neither Respondent sought to cross-examine the Applicant on his prior substantive affidavit. Neither of the Respondents request an adjournment to cross-examine the Applicant on his supplementary affidavit. The prosecution agreement is only marginally relevant by way of background. It has no bearing on the substantive issues. In these circumstances, I conclude that it is not unfair nor contrary to the interests of justice to permit the supplementary affidavit and its exhibit to be filed.

72Related to the question of the supplementary affidavit are the Applicant’s proposed amendments to his Notice of Application which he brought at the time of the hearing. Those amendments include deleting certain relief under the Constitution Act, 1867, and including Charter relief for the Trespass Act notices. The Applicant also amended his Notice of Application to properly particularize his request for s.7 Charter relief.

73As Charney, J. noted in Thillainathan v. Hindu Temple Society of Canada 2025 ONSC 1782, at paras. 40-41, a party may amend their notice of application in the same manner as a statement of claim. Rule 26.01 applies by analogy. Rule 26.01 is mandatory unless the responding party will suffer “non-compensable prejudice” from an amendment.

[74] The Respondents do not allege non-compensable prejudice. All parties were prepared to argue the substantive issues including the alleged s. 7 Charter violations, and the Charter challenges to the Toronto Trespass Act notice. I allow the Applicant to make the requested amendments to his pleading.

B. Should the Applicant have brought this application challenging the actions of the MOH as an application for judicial review pursuant to the JRPA? If so, can and should this court hear the application?

75Toronto submitted in their materials that the Applicant’s challenges to MOH’s authority under the HPPA and the Trespass Act amount to judicial review of a “statutory power of decision”, as defined by s. 1 of the JRPA. Toronto submitted that the Applicant was required to bring an application for judicial review to the Divisional Court. Toronto also submitted that the Applicant must seek an extension of time for his application, because he issued his Notice of Application outside the time provided within the JRPA.

76In oral argument, Toronto modified its position to align with Ontario. The Respondents submitted at the hearing that this application should be decided on all the substantive issues before a single judge of the Superior Court of Justice, pursuant to s. 6(2) of the JRPA.

77I agree that this application includes relief which involves judicial review. The MOH issued orders under the HPPA and the Trespass Act which involve “a power or right conferred by or under a statute to make a decision deciding or prescribing, (a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party”: s. 1, JRPA. The Applicant has challenged the MOH’s authority to issue the orders and her reliance on those orders for her authority to issue a Trespass Act notice. As a result, those aspects of his application are matters for judicial review pursuant to the JRPA.

78The parties did not refer to the Consolidated Practice Direction for Divisional Court Proceedings, Effective June 15, 2023, Updated October 14, 2025 (“The Consolidated Practice Direction”), which includes in its guidelines the expectation in s. 4 that a motion for leave to have a judicial review application heard by a single judge pursuant to s. 6(2) of the JRPA will be decided by a single judge of the Divisional Court.

79I have considered s. 6(2) of the JRPA, the Consolidated Practice Direction and the positions of the parties, as well as the timeline of litigation summarized above. I conclude that it is in the interests of justice to decide the judicial review of Toronto’s actions on this application, alongside the applications for Charter relief. This will preserve judicial economy, avoid conflicting decisions and will respect the positions of the parties who have thoroughly briefed the substantive issues in this application. This decision also considers the history of procedural stops and starts in the related litigation. I conclude that a single hearing of all of the issues raised in this application is in the public interest.

80The JRPA provides a single judge of the Superior Court of Justice with jurisdiction to decide whether to hear an application for judicial review pursuant to s. 6(2). The legislation does not prevent a single judge from making this determination. This is plain from the wording of s. 6(2) and s. 6(3) of the JRPA which provide:

6(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

Transfer to Divisional Court

(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court.

81The Consolidated Practice Direction contains guidelines for the orderly management of litigation before the Superior Court of Justice. Those guidelines anticipate that counsel will bring their motion to have a single judge hear an application for judicial review to a judge of the Divisional Court. The Consolidated Practice Direction does not prevent a single judge of the Superior Court of Justice, in the appropriate circumstances, from exercising the jurisdiction found within s. 6(2) of the JRPA This is clear from the wording of s. 6(2) and s. 6(3) which permits a judge of the Superior Court of Justice to transfer an application for judicial review to the Divisional Court.

82The Applicant encountered several procedural roadblocks to date, including lost time after his former counsel failed to file an originating process to bring his constitutional claims in 2021. This meant that he had to start afresh with his Charter challenges. At other stages, the Applicant was not represented by counsel. There are parallel criminal and regulatory proceedings in the Ontario Court of Justice which were adjourned to await a decision in this application. Those proceedings are now over four years in process, including a one-year delay in sentencing pending a final determination in this application. No party objected to scheduling this application before a single judge of the Superior Court of Justice when the three days for this hearing were selected. These features together present sufficient “urgency” to support a single judge hearing this application on the dates scheduled, including those portions that involve a judicial review of the MOH’s statutory power of decision, at the same time as the Applicant’s request for Charter remedies.

83To summarize my findings on these questions, I find that those aspects of this application which challenge Toronto and the MOH’s statutory authority to make orders are matters of judicial review which ought to have been brought before the Divisional Court. I find that in the unique circumstances of these proceedings, s. 6(2) permits a single judge of the Superior Court of Justice to hear the applications as part of the larger application for relief. I conclude that sufficient urgency arises from the lengthy delay and fragmented proceedings before this court. Finally, I conclude that creating further delay by transferring those applications to the Divisional Court would be a failure of justice for the parties who have dedicated significant resources to argue the substance of these challenges.

84Subject to the second procedural objection, which I discuss next, I will hear the portions of the application which involve judicial review of a statutory power of decision.

C. Should the Applicant’s challenge to the HPPA orders be dismissed as a collateral attack on administrative orders?

85Ontario and Toronto submit that the Applicant’s challenge to the HPPA s. 22 order is a collateral attack on an administrative order and should be dismissed. This submission arises from the Applicant’s failure to fully avail himself of the s. 44 appeal procedures in the HPPA. As described above, the Applicant initiated an appeal to the HSARB and then withdrew the appeal after the MOH lifted the s. 22 order. Had he completed the appeal and received an unfavourable decision from the HSARB, he would have had a further right of appeal to the Divisional Court pursuant to s. 46 of the HPPA.

86As described above, the Applicant initially appealed to the HSARB hearing and withdrew his appeal after the MOH lifted the s. 22 order. On February 22, 2021, the HSARB issued an Order finding that the appeal was moot and expressing doubt as to its jurisdiction to grant relief because the s. 22 order was no longer in effect.

87The Respondents submit that the Applicant is trying to evade the proper procedural route to challenge the s. 22 order. As such, it is a collateral attack and should be prohibited.

88The rule against collateral attacks on judicial orders is well-settled. As cited in R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 SCR 706 at para. 2, the Supreme Court of Canada in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, stated that the rule:

…seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal (R. v. Pastro [(1988), 1988 CanLII 214 (SK CA), 42 C.C.C. (3d) 485 (Sask. C.A.)], at p. 497).”

89The factors which apply to the question of collateral attack on a judicial order, also apply to issue estoppel: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at para. 67.

90The policy objective involved in issue estoppel, and in the rule against collateral attack, is to promote the orderly administration of justice, while not doing so at the “cost of real injustice in the particular case”: Danyluk at para. 67.

91The HPPA provides for a review by the HSARB of orders made pursuant to the Act. It does not include a review of s. 24 directions. The Applicant’s challenges to the directions and the Trespass Act notice, along with the Charter and constitutional challenges to the ROA and O. Reg 82/20 form a part of this omnibus application arising from one set of facts. As the HSARB noted in its reasons the Toronto Board of Health took the position that s. 24 directions could not be the subject of a s. 44 appeal to the HSARB. The Board of Health submitted that the Applicant would need to bring an application for judicial review of the s. 24 directions. Thus, even at the beginning of the HSARB process, the Applicant’s challenges faced arguments that would have led to a bifurcation of proceedings.

92In Danyluk, Binnie, J. observed that “[W]hatever the appellant’s various procedural mis- takes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated.”: Danyluk, at para. 80.

93This observation rings true in this case. The Applicant made some procedural missteps which complicated his goal of seeking an adjudication of his challenges on the merits. He appealed to the HSARB, withdrew the appeal, attempted to reopen his appeal and then made no submissions on the question of whether his appeal was moot. He did not seek to appeal the s. 22 mootness decision. He did not judicially review the s. 24 directions. In neither instance has a court or tribunal decided his challenges to the various government actions on the merits of his claims. Had the application before me been solely on the s. 22 issue, I might have decided this question differently. However, this challenge is one of several challenges to state action, including for Charter relief, which are now properly before the court, based on the ruling of Akbarali, J. in Skelly v. His Majesty the King in Right of Ontario, 2023 ONSC 6533.

94I find that it is appropriate for me to decide the aspects of this application which are a judicial review of administrative action, including the Applicant’s challenge to the s. 22 order of the MOH. I conclude that doing so does not amount to permitting a collateral attack on the decision of the HSARB. The HSARB ruling was confined to the question of mootness. The issue which I will consider is the reasonableness of the MOH’s decision to issue the s. 22 order and her authority to make the s. 22 order, and whether in doing so the MOH breached the Charter rights of the Applicant.

95I turn next to the substantive issues raised by this application, beginning with the challenges to the provincial legislation and then the challenges to the actions taken by Toronto.

D. Is the ROA, the ECMPA or Regulation 82/20 ultra vires the province pursuant to s. 92 of the Constitution Act, 1867?

96The Applicant submits that the ROA and its related, predecessor legislation, the EMCPA are ultra vires Ontario’s legislative authority. In his submission, the pith and substance, that is the “true character” of the legislation involves national emergency management, national security, quarantine, and criminal law. In the Applicant’s submission, both pieces of legislation fall under ss. 91(11) (quarantine and marine hospitals), 91(27) (criminal law), and the residual peace, order, and the good government (“POGG”) power within the Constitution Act, 1867. In his submission, the legislation in providing for lockdowns and restrictions, and “originating” from the Ministry of the Solicitor General supports a finding that the legislation is a matter of policing, security and “quarantine-like restrictions” which are matters of federal jurisdiction.

97The Applicant submits enforcement provisions under the ROA, which include imprisonment for breaches of its terms, further support a finding that the legislation is an exercise of a criminal law power and is ultra vires its jurisdiction.

98While it is true that both the EMCPA and the ROA include sanction provisions, sanction provisions do not convert otherwise valid provincial legislation to legislation relating to criminal law. This is because s. 92(15) of the Constitution Act, 1867 permits that provincial legislatures may impose “Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.” As the Supreme Court of Canada noted in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, provincial penal laws have been upheld on numerous occasions in response to valid provincial objectives: Nova Scotia Board of Censors v. McNeil, 1978 CanLII 6 (SCC), [1978] 2 S.C.R. 662; Mann v. The Queen, 1966 CanLII 5 (SCC), [1966] S.C.R. 238, and Smith v. The Queen, 1960 CanLII 12 (SCC), [1960] S.C.R. 776.

99The division of powers analysis requires the court to first determine the “true character” of the ROA and the EMCPA: Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 at para. 32. In doing so, I must consider the legislature’s purpose in enacting the ROA and the EMCPA, as well as their legal effect: Taylor v. Newfoundland and Labrador, 2020 NLSC 125 at para. 216, rev’d on other grounds, 2026 SCC 5, 510 D.L.R. (4th) 195.

100The analysis considers the words of the legislation, the background and the circumstances leading to the enactment of that legislation. In doing so, I may consider intrinsic evidence including the preamble and purpose clauses within the legislation, as well as extrinsic evidence such as relevant, reliable evidence of the legislative history and parliamentary debate: Taylor at paras. 217-218.

101I begin with the EMCPA followed by the ROA.

The Emergency Management and Civil Protection Act (EMCPA)

102The Divisional Court has described the EMCPA in a different context, as legislation granting broad powers to the Lieutenant Governor in Council to make orders during an emergency for the purpose of protecting the health and safety of Ontarians, including the power to close businesses: Hudson’s Bay Company ULC v. Ontario (Attorney General) 2020 ONSC 8046 at para. 51, 154 O.R. (3d) 103 (Div. Ct.).

103On March 17, 2020, in response to the COVID-19 pandemic, the Premier of Ontario invoked s. 7.01 of the EMCPA to declare a state of emergency in Ontario. Pursuant to O. Reg. 50/20 under the EMCPA, the provincial government implemented its declaration of emergency stating that the COVID-19 outbreak "constitutes a danger of major proportions that could result in serious harm to persons": Hudson’s Bay Company ULC at para. 7.

104The current version of the EMCPA sets out its purpose in section 1:

The purposes of this Act are,

(a) to provide for emergency management to safeguard the health, safety, welfare and property of the people of Ontario;

(b) to facilitate co-ordination as part of emergency management, including amongst,

(i) individuals,

(ii) municipalities,

(iii) Indigenous communities,

(iv) organizations in the public and private sectors,

(v) federal, provincial and territorial governments, and

(vi) international organizations; and

(c) to provide for emergency powers

105By virtue of s. 2 of the EMCPA, the provincial Minister of Emergency Preparedness and Response is responsible to provide “leadership in and ensure co-ordination of emergency management in Ontario.” The EMCPA sets out the Minister’s powers to provide leadership including monitoring and assessing risks and vulnerabilities, monitoring and assessing emergency plans, promoting public awareness and liaising with municipalities, Indigenous communities, organizations in the public and private sectors, federal, provincial and territorial governments and international organizations, all with a view to carrying out the purposes of the EMCPA.

106I conclude that the EMCPA falls within the legislative competence of the province of Ontario. This legislation involves emergency preparedness within the province, including in matters of public health emergencies. I find that its true character involves matters of a local or private nature under s. 92(16) of the Constitution Act, 1867. Further, the province’s jurisdiction over property and civil rights arising from s. 92 (13) applies to the provisions within the EMCPA which focus on emergency planning around critical infrastructure in the province. These findings accord with the language of the legislation, its stated purpose, and with the characterization of the legislation by the Divisional Court in Hudson’s Bay Company ULC. It also accords with the Supreme Court of Canada’s observation that matters of public health are local in nature: Schneider v. The Queen, 1982 CanLII 26 (SCC), [1982] 2 SCR 112 at p. 136..

Reopening Ontario (A Flexible Response to COVID-19) Act.

107The ROA came into force on July 24, 2020. Section 17 of the ROA revoked the COVID-19 declaration of emergency. Any orders and regulations made under the EMCPA continued in force under the ROA. The stated purpose of the ROA was to move toward reopening Ontario after the initial declaration of emergency in March of 2020. O. Reg 82/20 under the ROA sets out the controls that are in place if a region or area of the province is placed into a restrictive, Stage 1 or “Grey” stage.¹

108The Divisional Court in Hudson’s Bay Company ULC compared the purpose of the ROA to that of the EMCPA at para. 60:

As with the EMCPA, the purpose of the ROA is to give the LGIC broad discretion to make orders that reduce or mitigate the public health harm Ontarians face during the pandemic, while balancing the goal of reopening the economy. In particular, these provisions disclose a clear objective to confer on Ontario the power to balance the competing demands of responding to the COVID-19 pandemic and its effects and the needs of the economy and businesses in Ontario. The ROA discloses, as one of its objects, the conferral of the power to prohibit, reduce or regulate face-to-face interactions indoors or in close quarters if necessary, to reduce the risk of community-based transmission of the disease. Under existing orders at the time of the ROA enactment, the provision of essential goods was recognized as an important consideration. A regulation that is reasonably related to these objectives is valid.

109Like the EMCPA, the ROA concerns itself with matters of a local or private nature, and with property and civil rights. The ROA seeks to balance the demands of responding to a health emergency within the province, using various measures with the interests of businesses and the public interest in the economy. I find that the ROA falls within the legislative competence of the province of Ontario because its true character is to address matters of a local or private nature, that is balancing a health emergency with economic interests.

E. Do the relevant sections of the ROA and O. Reg. 82/20 infringe the Applicant’s rights under any of s. 2(b), 2(c), 7, 8 or 9 of the Canadian Charter of Rights and Freedoms?

110The Applicant submits that s. 10 of the ROA, under which Adamson Barbecue Limited and the Applicant as a director were charged, and O. Reg. 82/20 which restricted his restaurant from offering indoor dining, infringe his Charter rights under 2(b), freedom of expression, s. 2(c), freedom of assembly, and s. 7, right to life, liberty and security of the person, as well as s. 8 and s. 9.

[111] In his material, the Applicant connected his s. 8 Charter infringement to the “entry, seizure and dispossession of business premises” via the ROA and by Toronto’s allegedly unlawful Trespass Act notice. Ontario responded to the s. 8 argument in its factum by relying on the decision in Banas v. Her Majesty the Queen, 2022 ONSC 999, 504 C.R.R. (2d) 104, at para. 35, which found that a s. 9 restraining order under the ROA does not amount to a seizure under s. 8 of the Charter. In oral submissions, the Applicant narrowed his Charter issues against Ontario’s legislation by challenging only those provisions that affected him directly. He chose to allege a s. 8 Charter breach based on the Toronto measures pursuant to the HPPA and the Trespass Act notice, which I will address in that portion of these reasons.

112The Applicant’s factum connects his submissions on arbitrary detention to his arrest for Mischief Under $5,000, contrary to s. 430(4) of the Criminal Code and Obstruct a Peace officer, contrary to s. 129(a) of the Criminal Code. The Applicant tendered evidence that he was held for approximately 30 hours after being arrested, and then he was released on bail with conditions. In contrast to the criminal offences, the ROA offences were ticket offences. Those tickets are attached to the affidavit of the By-law enforcement officer, Paul Di Salvo. As I understand his position, the Applicant brings his arbitrary detention, s. 9 arguments to the HPPA order and directions, and the Trespass Act notice issued by the MOH, which in turn led to his arrest. I discuss the s. 9 issues within that context, below.

Freedom of Expression: s. 2(b) of the Charter

113The test for whether legislation contravenes freedom of expression guaranteed by s.2(b) of the Charter comes from Irwin Toy. At the first stage of the two-part test, the party relying upon s. 2(b) must show that the action in which that party wishes to engage constitutes "expression" within the meaning of s.2(b). If the moving party succeeds, they must establish that the purpose or effect of the impugned law or government action is to infringe upon their freedom of expression. If the party seeking relief is successful at both stages, they will establish a violation of s.2(b). From there, the onus shifts to the government under s. 1 of the Charter to show that the law can be justified in a free and democratic society.

Step 1: Did the Applicant engage in a form of “expression”?

114Ontario submits that opening a restaurant for indoor dining is commercial activity that is not a matter of “expression” under s. 2(b) of the Charter. The Applicant responds that he was engaging in a form of political expression by opening his restaurant in protest of the indoor dining prohibition. As his affidavit explains, he believed that the measures put in place by O. Reg 82/20 were arbitrary, unjustified and economically damaging to his business. In his submission, the response from the authorities proves this point: his opening of the restaurant in defiance of provincial legislation drew significant attention from local, national and international media. Members of the public came to the site of the restaurant. Thousands of others viewed his posts and commented on the issues arising from his form of protest.

115In Irwin Toy, the majority of the Supreme Court of Canada discussed the purpose of protecting free expression in a democratic society:

[T]o ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

Irwin Toy, at p. 968.

116Irwin Toy stands for the proposition that almost any human activity may have expressive content. The majority also considered that certain activities, for example, parking a car might not be a form of expression, unless the plaintiff can show that the activity was “performed to convey a meaning.” The majority wrote:

For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

Irwin Toy, at p. 969.

117The meaning of “expression” under s. 2(b) of the Charter is broad. The Supreme Court has accorded this concept a “large and liberal” interpretation. Ccommercial expression is included within its protection: Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 SCR 712 at pp. 766-767.

118With these principles in mind, I find that the Applicant has shown that he opened his restaurant as a protest of the pandemic measures in Toronto in November, 2020. His opening of the restaurant contrary to the prohibitions in the ROA and O. Reg. 82/20 was commercial activity as protest. The Applicant took the actions that he did to deliberately protest the content of the ROA and O. Reg. 82/20 which closed restaurants like his, in Toronto, for indoor dining.

119In coming to this conclusion, I consider several facts, including that in October of 2020, prior to the protest, the Applicant sent e-mail correspondence to the Premier of Ontario and to his Toronto municipal councillor, complaining about the lockdowns and the impact on his business.

120On November 23, 2020, the Applicant posted a video to his social media account announcing that he would be opening Adamson Barbecue in Etobicoke for indoor dining by way of a peaceful protest of the government restrictions under O. Reg 82/20.

121On November 24, 2020, City Health Inspector John Fernando attended the restaurant. He took photographs of patrons sitting inside the restaurant, eating food, and a gathering of people outside the restaurant. In one of those photographs, signs can be seen beside attendees outside the restaurant with the words, “We are all essential” printed on them. The photographs show at least one news reporter and a camera operator covering the event.

122In his affidavit, the Applicant described supporters at the protest. He stated that many of them stood outside but did not enter the restaurant. He posted public health information and reminded those who entered of provincial mask mandates. By his account, which was not challenged, the protest remained peaceful.

123Ontario submits that Rosen v. Ontario (Attorney General), (1996) 1996 CanLII 443 (ON CA), 131 D.L.R. (4th) 708 (O.N. C.A.) at p. 14, leave to appeal refused, [1996] S.C.C.A. No. 127, at 14 applies in support of its submission that commercial activity does not amount to protected expression. In Rosen, a group of pharmacists challenged the law requiring them to refrain from selling cigarettes. The pharmacists argued that if they complied with the law, they were compelled to carry the government’s anti-tobacco messaging, thus breaching their s. 2(b) rights of freedom of expression.

124The Court of Appeal disagreed, finding that the pharmacists’ argument would mean that “by obeying a law, one is communicating one's support for the message inherent in the purpose underlying the law. If this proposition is accepted, then compliance with virtually any law becomes a form of expression”: Rosen at p. 14. The Court of Appeal concluded that freedom of expression protects the right to disagree with a law, but not to be free from government regulation with which one disagrees as an extension of that right.

125The facts in the case at bar are different from those in Rosen. The Applicant is not arguing that passive acceptance of the restrictions amounts to expression. Rather, his well-publicized form of non-violent, yet transgressive protest, amounts to a form of expression as defined under s. 2(b).

126I conclude that the Applicant’s protest by opening his restaurant amounted to expression, as that term is used within s. 2(b) of the Charter and as defined in Irwin Toy.

Step 2: Has the Applicant established that the purpose or effect of the impugned law or government action is to infringe upon his freedom of expression?

127I begin first with the question of the purpose of the impugned law. The court must consider whether the legislation singles out and attempts to prevent meaning from being conveyed. Alternatively, the court asks whether the legislation restricts a form of expression to control expression or the speaker’s ability to convey meaning: Irwin Toy at p. 976.

128If the purpose of the law is to restrict the content of the expression by limiting meanings that are not to be conveyed, that is a limit of the guarantee. Similarly, if the purpose is to restrict a form of expression, for example by placing limits on the ability to hand out pamphlets, and in doing so the law seeks to control access by others to the content, this is also a limit on the guarantee. However, where the government “aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression”: Irwin Toy at p. 974.

129The ROA and O. Reg 82/20 provisions were public health measures which limited how food could be sold in restaurants in response to the COVID-19 pandemic and public health information known at the time. The ROA offence provisions are the mechanism by which the public health measures were enforced.

130The Divisional Court described the objective of the ROA as to “prohibit, reduce or regulate face-to-face interactions indoors or in close quarters if necessary, to reduce the risk of community-based transmission of the disease.” Hudson’s Bay Company ULC at para. 60. The Divisional Court found that the ROA was designed to implement its purpose by allowing the LGIC to “to reopen, or close, various segments of the Ontario economy to protect the health and safety of people in different parts of the province during the pandemic, as and when the need arises”: Hudson’s Bay Company ULC at para. 81.

131I conclude that neither O. Reg 82/20, nor the ROA offence section under which the Applicant was charged were enacted for the purpose of limiting expression. This legislation aims to control the “physical consequences” of human activity, that is the opening of restaurants during a period of circulation of an air-borne virus. The pandemic context included a period in which Ontario chose to use non-pharmaceutical measures, to control he spread of the virus, using a framework that restricted commercial activity indoors.

132I consider next the question of whether the impugned provisions of the ROA had the effect of limiting the Applicant’s expression. I must do so because even when legislation or government action does not aim to restrict expression, that legislation or government action may have such an effect. The Applicant must show that the effect of the legislation or government action was to restrict his expression. The Applicant must identify the meaning being conveyed by the expression, and relate it to the pursuit of truth, participation in the community or individual self-fulfillment and human flourishing: Irwin Toy, p. 979.

133The ROA and the regulation were the reason for the Applicant’s protest. The effect of the legislation was to require restaurants to close for indoor dining. The legislation did not restrict the Applicant’s ability to express his disagreement or to protest the scheme put in place to manage the pandemic in November of 2020. The Applicant had virtual and physical places to make his views known. He had access to politicians through email channels, which he used in October of 2020. The legislation which he challenges permitted outdoor assemblies. He could have chosen to do so at the site of his restaurant for an outdoor protest: Schedule 4, section 1 of O. Reg. 82/20. The fact that he demonstrated his displeasure by publicly breaching the ROA was his choice, but the way he chose to express that disagreement does not mean that the effect of the legislation was to restrict his expression. Rather, the legislation was the reason for his expression.

134Applying the Applicant’s reasoning would mean that any legislation which regulates human activity would require justification anytime an individual chooses to protest by breaching that legislation. Such a result renders the analysis meaningless and is arguably contrary to public policy. This reasoning would mean that short of violence, which is not a protected form of expression, any activity that breaks the law in the name of protesting that law could be said to have the “effect” of restricting expression. This would apply to any range of regulated activity, for example, safety legislation applicable to construction sites, the safe operation of motor vehicles, damage to public property, serving food without sanitary measures or refusing to observe minimum employment standards.

135I conclude that the Applicant has shown that he was engaged in expression but he has not met his onus to show that either the purpose or the effect of the ROA and O. Reg. 82/20 was to infringe his right to freedom of expression.

Freedom of Assembly: s. 2(c) of the Charter

136The Applicant alternatively submits that the ROA and O. Reg 82/20 infringed his right to freedom of assembly by restricting indoor dining.

137I disagree. Freedom of peaceful assembly as guaranteed by s. 2(c) of the guarantees access to and use of public spaces, including public parks, squares, sidewalks, roadways, bridges, and buildings involved in public life: Hussain v Toronto (City), 2016 ONSC 3504, 55 M.P.L.R. (5th) 108, at para. 38.

138The public use and access of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The Supreme Court of Canada has described this as a “public trust” which the government holds for the public: Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at p. 154.

139The Court of Appeal carefully examined the contours of the s. 2(c) right in Hillier. The Court recognized that this is a right which normally involves public areas, given its focus on collectivity and its importance as a means of confronting others or gaining attention “by disrupting ordinary life, or the ordinary use of public spaces”: Hillier at para. 40.

[140] I find that the ROA and O. Reg 82/20, did not discourage the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly. This is because the impugned provisions did not prevent the Applicant from organizing a peaceful assembly at the site of his restaurant, within the parking area or in the immediate area. The provisions did not prevent a form of indoor protest that did not involve serving food and were otherwise lawful. There were members of the public who gathered outside the restaurant and showed support for his protest, yet they did not enter or seek to order food. I conclude that the ROA and O. Reg. 82/20 did not infringe on the Applicant’s s. 2(c) Charter right.

Right to life, liberty and security of the person: s. 7 of the Charter

141Section 7 of the Charter provides that “[e]veryone 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.”

142The onus is on the Applicant to demonstrate first, that he has been deprived of his “life, liberty and security of the person” and second, that the deprivation is contrary to the principles of fundamental justice: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 47.

143The Supreme Court has interpreted the liberty interest protected by s. 7 broadly and in accordance with the principles and values underlying the Charter as a whole: Blencoe at para. 49.

144The Applicant submits that by protesting in the way he did and in being served with offence notices under s. 10 of the ROA which includes penalties by way of imprisonment, his rights to life, liberty or security of the person are engaged and s. 7 must be applied to the legislation.

145I agree. The Applicant was charged with ROA offences. He pleaded guilty to those offences on March 18, 2025. His sentencing has been scheduled to take place on March 18, 2026. The availability of imprisonment for the offence is sufficient to trigger scrutiny under s. 7 of the Charter: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 84.

146The second part of the s. 7 analysis requires the Applicant to show that the deprivation of his liberty interest is “contrary to the principles of fundamental justice.” In his “Amended Amended” Notice of Application the Applicant pleaded that the respondents’ actions “cannot be said to accord with the principles of fundamental justice; in fact, the conduct of the respondents offends such principles, as they were arbitrary, overbroad and grossly disproportionate.”

147As the Supreme Court of Canada explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 111-113:

111Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in Chaoulli, the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.

112Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

113Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

148I find that O. Reg. 82/20 is not arbitrary because there is a direct connection between its purpose and the effect on the Applicant. The Court of Appeal has found that restricting the gathering of people is a rational means of reducing the transmission of COVID-19: Hillier at para. 52; Trinity Bible at para. 96. Ontario tendered similar evidence at this application from Dr. Matthew Hodge, a certified specialist in public health and preventative medicine. Dr. Hodge also testified before the judges of first instance in Hillier and Trinity Bible.

149In his affidavit, Dr. Hodge explained that COVID-19 is a deadly infectious disease which created an unprecedented global public health emergency in 2020. The pandemic strained Ontario’s health care capacity and increased mortality rates. The virus and its variants spreads when an infected person, who may be asymptomatic, comes in close contact with another person via small liquid particles emitted when a person coughs, sneezes, speaks, sings or breathes heavily. These particles travel further indoors than outdoors. Many people show no symptoms for several days and thus they are at risk of transmitting the virus to others when they are not showing any symptoms. These features of the disease led to public health measures including limits on gatherings, including in restaurants and bars, which were found to pose distinct transmission risks. Those risks arose from the opportunities for close contact among unrelated individuals in enclosed spaces, the inability of users to mask while consuming food or drink, and the loud talking among patrons in spaces where music is played in the background.

150The Applicant tendered several expert reports which critiqued Dr. Hodge’s opinions, including on questions of the cost-benefit of the non-pharmaceutical responses to the pandemic, such as limits on restaurant indoor dining. Those reports challenged the level of risk posed by restaurant patrons eating indoors, and the extent of strain on hospital facilities. Those expert reports did not challenge the mechanism by which the COVID-19 virus is spread. While those experts opined that restaurant associated transmission had not been proven to have led to anything more than a “negligible share of severe outcomes” this evidence must be understood in the context of restrictions that were designed to prevent severe outcomes or contribute to the community spread of the virus.

151The Applicant submitted that Dr. Hodge’s expert opinion should be given reduced weight because he is an employee of the provincial government, on whose behalf he is opining.

152The Court of Appeal considered a similar submission in Trinity Bible relative to the evidence of Dr. McKeown, the former Associate Chief Medical Officer of Health for Ontario. The Court of Appeal found that Dr. McKeown’s opinion evidence was admissible as participant expert evidence, due to his role and expertise in advising the Ontario government on its pandemic response efforts and his expertise. The Court of Appeal also found the motion judge had not erred in accepting the opinion evidence of Dr. Hodge on transmission rates and what was known in Ontario at the time of those events: Trinity Bible at paras. 43-51. I apply similar reasoning here. I find that Dr. Hodge is a qualified participant expert, giving similar evidence to that which was accepted in Trinity Bible by way of background. This evidence provides relevant context to the policy choices being made in 2020 and prior to vaccinations being available.

153The Applicant also submitted that Dr. Hodge may have felt constrained in giving his evidence because of a directive from the College of Physicians and Surgeons (the “CPSO”) requiring its licensees not to contradict public health orders or to publicly communicate anti-distancing or anti-lockdown opinions. I would not give effect to this submission. The Applicant questioned Dr. Hodge about whether he was aware of the CPSO directive. The Applicant did not ask any questions about constraints on Dr. Hodge’s evidence because of the directive. I conclude that there is no foundation to conclude that the CPSO directive influenced Dr. Hodge’s evidence.

154As the Court of Appeal found in Trinity Bible, it was open to the motion judge in that case to accept evidence that outdoor gatherings did not eliminate the risk of transmission of the virus, and the increased risk of transmission could have consequences for the health care system more broadly: Trinity Bible at para. 96. I accept the evidence of Dr. Hodge as to the nature of transmission, the risk posed by permitting restaurants to open for indoor dining and the potential consequences to the health care system. I find that Dr. Hodge’s expert evidence connects the risk to the public to the public health measures put in place under the ROA and O. Reg 82/20.

155Based on this evidence O. Reg. 82/20 is not arbitrary. I find also that it cannot be said to be overbroad. It only goes as far as to prohibit indoor dining which is rationally connected to the spread of COVID-19. O. Reg. 82/20 did not go farther and ban other activities or food sales which were unconnected to the purpose of the regulation.

156Thirdly, I find that O. Reg 82/20 and the penalty provisions in s. 10 of the ROA are not “grossly disproportionate.” A law which is grossly disproportionate involves extreme cases where the seriousness of the deprivation is “totally out of sync” with the objective of the measure: Bedford at para. 120. Given the range of penalties available under the ROA and the public health objectives of the legislation this was neither “draconian” nor are the legislation’s objects “entirely outside the norms accepted in our free and democratic society”: Bedford at para. 120.

157I consider that the objective of the impugned legislation was to reduce the risk of transmission of an infectious disease that killed thousands of Ontarians. While there was a clear impact on the Applicant’s business operations, as well as others across Ontario and Canada, I cannot conclude that the deprivation here was grossly disproportionate. The province placed limits on indoor restaurant dining, but it did not ban all types of food service. The restrictions were time limited and Ontario imposed them in response to a period when COVID-19 cases were rising. In an example of other restrictive measures which were not found to be grossly disproportionate, the Federal Court found that quarantine measures imposed on returning air travellers to Canada in 2020 were not grossly disproportionate because there was no way of knowing in advance which passengers were asymptomatic and infected. The Federal Court held that there was a rational basis for testing air travellers and requiring them to stay in quarantine facilities pending receipt of their test results: Spencer v. Canada (Health), 2021 FC 621, 490 C.R.R. (2d) 32, at paras 134-135, aff’d 2023 FCA 8.

158The ROA went no further than necessary to achieve its risk-mitigation objectives. It did not totally ban restaurant food services. It permitted take-out, delivery or drive-through. In setting these COVID-19 restrictions to respond to a global pandemic I agree that, “Ontario was not required to choose the least ambitious means of protecting the public.” Restrictions are not “overbroad simply because Ontario could have chosen from other alternatives” : Trinity Bible ONCAat para 139. See also Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3at para 66; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567,at para. 37; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199,at para 160; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43; and Newfoundland (Treasury Board) v NAPE, 2004 SCC 66, 3 S.C.R. 381,at para. 96.

159I conclude therefore, that although the Applicant’s liberty interests under s.7 were engaged by the ROA and O. Reg. 82/20, the risk of deprivation of his liberty was not contrary to the principles of fundamental justice by virtue of being arbitrary, overbroad or grossly disproportionate. As a result, Ontario is not required to justify the legislation under s. 1 of the Charter.

F. If any of the relevant sections of the ROA and Regulation 82/20 infringe the Applicant’s Charter rights, are those sections saved by operation of s. 1 of the Charter?

160I have not found that s. 10 of the ROA or O. Reg 82/20, Schedule 3 infringe the Applicant’s Charter rights. Although a s. 1 analysis is unnecessary, I will consider whether if any such infringement had been found, whether s. 1 of the Charter would justify any such infringement.

161In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 136, Dickson C.J. identified the approach to the constitutionality analysis in s. 1 of the Charter, including the societal context in which the law operates, and whether any infringement of Charter rights is aimed at an important objective, while being proportionate in its overall impact. Chief Justice Dickson observed that the court must answer the question as to whether the infringement is justifiable in a free and democratic society, not “whether a more advantageous arrangement for a particular claimant could be envisioned”: Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344, 160 O.R. (3d) 748, at para. 122, aff’d 2023 ONCA 134, 166 O.R. (3d) 81, leave to appeal refused, [2023] S.C.C.A. No. 168.

162Turning to the elements of the Oakes test, and by way of overview, I find, first, that the November 2020, Ontario law restricting the operation of restaurants in the context of the global pandemic served a pressing and substantial objective, was rationally connected to that objective, was minimally impairing and was not disproportionate in its effects and thus to the extent that the legislation might have infringed on the Applicant’s Charter rights, it is justified by s. 1 of the Charter.

163I follow and apply the findings of the Court of Appeal that protecting the health of individuals by legislating measures aimed at reducing the risk of the spread of COVID-19 is a pressing and substantial objective: Trinity Bible at para 88; Hillier, at para. 46; Beaudoin v. British Columbia, 2021 BCSC 512, 49 B.C.L.R. (6th) 368, at para. 299.

164Second, I conclude that the law was rationally connected to that objective. As discussed in the s. 7 analysis, above, I accept the evidence of Dr. Hodge about how COVID-19 is transmitted and its impact on Ontarians in 2020. The Court of Appeal has accepted similar evidence that the virus is transmitted from person to person and reducing contact reduces the risk of transmission: Trinity Bible Chapel at para. 96. The Applicant’s expert evidence does not seriously challenge that finding.

165The areas of scientific disagreement between the experts does not change that conclusion. The Applicant’s experts opined as to whether in retrospect, all restrictive measures were necessary or whether there were other effective pharmaceutical options available before vaccinations were offered, to mitigate the impact of the pandemic. As a matter of law, the evidence need only establish that it is reasonable to suppose that the limit may further the goal: Hutterian Brethren, at para. 48.

166I conclude that the regulation of restaurants to limit close contact between members of different households is rationally connected to the goal of protecting individuals from the spread of an infectious respiratory disease. O. Reg. 82/20 limited close contact between members of different households by restricting indoor dining for communities at the “grey” stage of reopening. Thus, the legislation is rationally connected to the goal of protecting members of the community from the spread of COVID-19.

167Third, the legislation minimally impairs any of the alleged Charter rights, whether they involve freedom of expression, freedom of assembly or s. 7 liberty interests. The provisions aimed to restrict but not ban food service in restaurants to control community transmission of a disease. Unlike the total ban on political outdoor assembly that was in issue in Hillier, the restrictions here limit but do not ban restaurant sector economic activity. The restrictions were tailored to the harm that they sought to control. The enforcement provisions in the ROA provide for fines and/or imprisonment with no mandatory minimum on conviction. Those provisions do not create absolute liability offences.

168I appreciate that the Applicant’s business model rested on the principle that the type of food served in his restaurant is best enjoyed hot and around communal tables, however given the time-limited nature of the restriction and the other alternatives which permitted ongoing alternative forms of operations for a limited period of time, the ROA and O. Reg 82/20 were “minimally impairing”. Ontario did not have to choose the least restrictive option in circumstances of potentially serious risks to vulnerable groups, or to compromise public safety: Trinity Bible at paras. 120-125; Hutterian Brethren, at para. 60.

169I adopt the reasoning of the motion judge in Trinity Bible, quoted with approval by the Court of Appeal at this stage of the s. 1 analysis:

… Ontario is not required to justify its choices on a standard of scientific certainty. That would set an impossible burden, particularly where, as here, the social problem defies scientific consensus. “The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened”: see Hutterian, at para. 37. I agree with Burrage J. in [Taylor v. Newfoundland and Labrador, 2020 NLSC 125], at para. 411 that: “given the emergent and rapidly evolving developments, the time for analyzing evidence shrinks, all the more so when the margin for error relates to serious illness and/or death.”

Trinity Bible, ONCA at para. 145.

170The final stage of the Oakes test requires the court to consider a “broader assessment of whether the benefits of the impugned law are worth the cost of the rights limitation.” I conclude that the ROA and O. Reg 82/20 are sufficiently proportionate to the risks of transmission of COVID-19 as Ontario understood that disease at the time. Ontario was not required to justify its choices to a standard of scientific certainty. The legislative choices were supported by “sound medical opinion”: Trinity Bible, at para. 156.

171The broader societal context for this legislation was a pandemic which burdened all residents of Ontario. The legislature had to make immediate policy choices in the name of a public health emergency involving an airborne virus. Ontario did not impose the indoor dining restrictions broadly or indiscriminately. In November of 2020, Ontario imposed those restrictions based on epidemiological statistics and on the advice of public health officials who concluded there was an elevated risk of transmission in Toronto. The legislation did not require restaurants to close entirely. Ontario permitted restaurants to operate in ways that posed a lower risk of transmission. Ontario imposed the restrictions for a time limited period.

172I acknowledge the hardship that these legislative choices had for many businesses, including the Applicant’s business. There was a clear cost to the restrictions. The Applicant provided evidence of the cost to his business resulting from. He tendered sales figures and evidence about the considerable proportion of employees he was required to lay off during the early months of the pandemic. Yet, he chose a way to express his disagreement with these measures that drove away his employees by the third day of the protest. He was not alone in experiencing business losses. Ontarians suffered health, economic and social upheaval as a result of the pandemic, an event beyond the control of individuals, health institutions, and government. These are harsh realities. However, against the broader context and the need for the protection of public health I conclude that the measures put in place by Ontario were justified. The Applicant’s business was impacted by temporary restrictive measures that did not amount to a complete ban on his ability to do business. The measures imposed by the Ontario legislature were not disproportionate to the costs they imposed on the Applicant.

173To conclude, if s. 10 of the ROA and O. Reg 82/20 infringed the Applicant’s rights, those infringements were justified by s. 1 of the Charter.

G. Did the MOH have the authority to exercise her powers under s. 22 and 24 of the ROA, and the Trespass Act to require and enforce the closure of the Adamson Barbecue restaurant? In exercising that authority, did the MOH violate the Applicant’s Charter rights?

174The Applicant submitted that the MOH acted outside her authority under the HPPA and the Trespass Act, and by making the order, direction and issuing the Trespass Act notice, the MOH violated his Charter rights. As discussed above, because this part of the Applicant’s argument engages a statutory power of decision, Toronto submitted that this amounts to relief by way of judicial review. Having determined that judicial economy favours hearing all the issues at one time, for the reasons given above, I heard all arguments on the merits.

175The question of the statutory decision-maker’s exercise of authority under statute attracts a standard of reasonableness: Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, 170 O.R. (3d) 241, at paras. 87-97, leave to appeal to S.C.C refused, 41140 (October 24, 2024). However, where a decision-maker is required to consider the Charter rights of those affected by her order, the standard of review is one of correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 DLR (4th) 613at paras. 62-71.

The Section 22 HPPA order by the MOH was reasonable and Charter compliant

176I begin with the MOH’s decision to issue an order under s. 22 of the HPPA. Although the Applicant’s factum concentrates on the issuance of the Trespass Act notice it is important to note that the MOH did not begin with that notice. Instead, the first action which the MOH took in response to the Applicant’s announcement that he intended to intentionally violate the ROA and O. Reg 82/20, was to investigate whether that was taking place. To that end, Toronto dispatched a public health inspector, Mr. Di Salvo, to the restaurant on the first day of the unlawful opening. When City officials communicated this information to the MOH, she issued the s. 22 order under the HPPA which required the Applicant to close the restaurant.

177Section 22(1) of the HPPA empowers the MOH to make an order in writing requiring a person “to take or to refrain from taking any action that is specified in the order in respect of a communicable disease.”

178As a condition precedent to making such an order, the MOH must have reasonable and probable grounds to believe:

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.

179Subsection 22(4) of the HPPA permits a MOH to order closure of a premises to address public health concerns. The s. 22 order served on the Applicant notified him that he was to close the restaurant, post a red “closed” placard on a conspicuous place, and comply with O. Reg. 82/20 as well as any public health orders. The s. 22 order provided the reasons for the MOH’s finding that she had reasonable and probable grounds as required under the HPPA to issue the order:

180Dr. de Villa’s evidence under examination was that by the fall of the 2020, the City of Toronto was seeing hundreds of new cases of COVID-19 a day, with people needing hospitalization and over 1,000 deaths since the onset of the pandemic, with no vaccination available. She gave evidence under examination that her reasonable grounds for issuing the s. 22 order were that COVID-19 was circulating in Toronto at the time, and that her order to close was reasonable in the circumstances.

181The evidence from Dr. Hodge was that at the time of the order, COVID-19 was circulating in Toronto, and it presented a risk to the health of Torontonians.

182The MOH received information from the By-law Control Officer that the Applicant had opened his restaurant contrary to O. Reg 82/20, and that the Officer had observed indoor dining at the restaurant.

183I find that the MOH had reasonable and probable grounds to issue the s. 22 order. The order was based on the Applicant’s stated intention to breach provincial public health legislation which required his restaurant, and others in Toronto, to close for indoor dining.

184I further find that the s. 22 order met the requirements of the HPPA. It was in writing as required by s. 22(1). The evidence on this application demonstrated that the MOH had reasonable and probable grounds and as such it was within her statutory authority to issue an order to close the restaurant. The MOH set out her reasons for making the s. 22 order in the order, in accordance with s. 22(7). Finally, the s. 22 order provided information on the Applicant’s right to seek a review of the order from the HPARB, as required by s. 44.

185I also conclude that the MOH’s issuing of the s. 22 order did not breach any of the Applicant’s Charter rights. Just as the ROA and O. Reg 82/20 were valid pieces of legislation which did not infringe the Applicant’s s. 2(b) right to freedom of expression, the actions of the MOH in issuing the s. 22 order to close the restaurant under the HPPA did not engage the Applicant’s s. 2(b) right to freedom of expression under the second step of the Irwin Toy test. The purpose and effect of the s. 22 order was to respond to public health concerns about the circulation of the COVID-19 virus. The s. 22 order did not target the Applicant’s right to freedom of expression. Its aim was to address the potential public health impact posed by his decision to open his restaurant to the public contrary to the ROA and the regulation.

186Similarly, I do not find that the s. 22 order infringed the Applicant’s right to freedom of assembly protected by s. 2(c) of the Charter. Just as the ROA and O. Reg 82/20 were directed to public health concerns from indoor dining, so was the s. 22 order. The MOH issued the s. 22 order to respond to activities proposed to take place within the restaurant premises. It was not directed to (otherwise compliant) political protests against the legislation or the restrictions. The s. 22 order did not prevent the Applicant from holding a protest outside the restaurant or in any other public space, subject to the restrictions on outdoor gatherings which were in place at the time. As the Court of Appeal found in Hillier, an outright ban on public political assembly breached s. 2(c), and could not be saved by s. 1, but a limit of 10 persons was justifiable given the public health context at the time.

187I also reject the submission that the s. 22 order infringed the Applicant’s rights under s. 7 of the Charter. That order did not put the Applicant’s liberty interest in jeopardy. Section 7 does not protect economic rights or the right to a given vocation: Siemens v Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45. Although the TPS later arrested the Applicant and charged with criminal offences on the third day of his opening the restaurant, those restrictions on his liberty have not been connected to the s. 22 order, but to the events and choices made by the Applicant in response to the s. 22 order. The Applicant did not include the Toronto Police Service as respondents in this application. The Applicant has not tendered evidence on the grounds for his arrest. Accordingly, I find that he has not connected the s. 22 order either to his s.7 liberty interests, or to his allegation that his rights to be free from arbitrary detention under s.9 of the Charter were engaged by the s. 22 order.

188In respect of the Applicant’s s. 8 submissions, I conclude that the s. 22 order did not amount to a seizure pursuant to s. 8 of the Charter. Section 8 protects privacy interests in property. The Charter’s protection does not apply to every governmental action which interferes with property rights: Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 53. Here, compliance with the order meant the Applicant was required to close his restaurant and post a notice to that effect on the exterior of the building. This is not a “seizure” of the building, nor does it amount to an infringement on the Applicant’s privacy interests in the property.

189As the chronology of steps summarized above reveals, the MOH did not pre-emptively direct municipal enforcement steps. The MOH provided the Applicant with an opportunity to comply with the s. 22 order to close. He announced that he would not respect that order. He proceeded to open the restaurant in contravention of the s. 22 order on November 25. Had he obeyed the order, it is reasonable to expect these additional steps might not have been necessary. However, given his breach, the MOH took additional steps under the HPPA and the Trespass Act. I consider the Applicant’s submissions that these steps infringed his Charter rights in the next section of these reasons.

The s. 24 directions and the Trespass Act Notice

190The Applicant has challenged the directions issued by the MOH under s. 24 with a view to enforcing her s. 22 order, after he failed to close the restaurant in compliance with her s. 22 order.

191The Applicant submits that the MOH had no statutory authority to issue a Trespass Act notice to him and that the MOH’s actions breached his rights under sections 2(b), 2(c), 7, 8 and 9 of the Charter. In his factum, the Applicant characterizes the Trespass Act notice as the “first and primary enforcement mechanism through which the assembly was quashed and the restaurant was seized.”

The s. 24 Directions Issued by the MOH

192I begin with the s. 24 directions issued to enforce the s. 22 order. The MOH delivered the s. 24 directions by email to several municipal departments, including the Chief of Police and members of the Toronto Police Services. The s. 24 directions read:

VIA EMAIL

November 25, 2020

TO: Municipal Licensing and Standards and Toronto Public Health staff including Bylaw

Enforcement Officers and Public Health Inspectors, the Chief of Police of the

Toronto Police Services and members of the Toronto Police Services, and third

parties engaged to provide locksmith and other services specified below

RE: Directions to take actions in respect of section 22 order regarding closure of

Adamson Barbecue

On November 24, 2020, I issued the attached Order under section 22 of the Health

Protection and Promotion Act, R.S.O. 1990, c.H.7. to require the closure of the premises

operating as Adamson Barbecue and located at 7 Queen Elizabeth Blvd., Toronto,

Ontario, M8Z 1L8 (the "Premises").

Further to that Order, and pursuant to section 24 of the Health Protection and Promotion Act, I am directing you to take actions necessary to ensure that the Premises is and remains closed, and that access to the Premises is restricted until such time as the

Order has been lifted. These actions include the engagement of third party services to

remove existing locks and secure a magnetic lock, padlock, or other similar mechanism

on all doors to the Premises, the installation of cinder blocks or other blockades to

prevent entry, and the posting of notices to notify members of the public about the Order.

The above actions should not prohibit entry to the Premises for health and safety

purposes, including inspections under the Building Code and Fire Code.

Thank you for your support in undertaking these actions in order to decrease the risk to health presented by COVID-19.

193Section 24 permits such directions where a person refuses to comply with an order under s. 22 of the HPPA. The Applicant acknowledged that he opened his restaurant again on November 25, 2020, in defiance of the s. 22 order, served on him on November 24, 2020. At the time of service of the s. 22 order, the Applicant informed the by-law control officer that he intended to open the restaurant again the following day. The MOH dated her directions to Toronto staff on November 25, 2020, and delivered them by email to the Director at 12:22 a.m. on November 26, 2020. The Director’s evidence was that the MOH issued these directions based on reports to her of the Applicant’s non-compliance with her order.

194The Director described his arrival at the restaurant at 5:30 a.m. on November 26, 2020, where he coordinated the s. 24 direction, including watching a locksmith replace the locks on the restaurant, including by installing a magnetic lock on one of the restaurant entrances. In cross-examination on his affidavit, the Applicant stated that his staff “bailed” on working during the third day of the opening of the restaurant. The Applicant stated that “we got literal protestors to come and serve the food.”

195The Director confirmed that he viewed video footage uploaded to social media showing the Applicant accessing the restaurant and then breaking the lock from inside the restaurant. The Applicant acknowledged that after doing so, he opened the restaurant again for food service, again contravening the s. 22 order and the ROA and O. Reg 82/20.

196The Director stated in his affidavit that he was on site when members of the Toronto Police Service arrested the Applicant. The Applicant did not tender evidence from the officers involved in that arrest. In his cross-examination, the Applicant testified that he was released on conditions following his arrest that restricted him from returning to the site of his restaurant and limited his use of social media. Those conditions are similarly not part of this application.

197The s. 24 directions were issued to enforce the s. 22 order. The MOH met the preconditions for issuing those directions: they were based on her grounds to issue the s. 22 order, including that COVID-19 was circulating in the community, and the MOH had ordered the Applicant to close the restaurant as a measure to contain the spread of COVID-19.

198I find that the HPPA empowered the MOH to “take such actions as is specified in the directions in respect of eliminating or decreasing the risk to health presented by the communicable disease”: s. 24(3), HPPA. The HPPA empowered the MOH to give directions which included but were not limited to cleaning or disinfecting things or premises, or destroying anything named in the directions: s. 24(4), HPPA (emphasis added).

199I am satisfied that the s. 24 directions could include taking actions that would enforce the order to close the restaurant to prevent the spread of communicable disease. The MOH was reasonably authorized under the HPPA to authorize the changing of the locks to prevent entry and to prevent defiance of the s. 22 order. The directions were valid, and for the same reasoning as discussed above within the context of the s. 22 order, I find that the s. 24 directions did not breach the Applicant’s Charter rights. There is no need to repeat the same findings in respect of the s. 22 order, nor that of the ROA and O. Reg 82/20.

The Trespass Act Notice

200This leads to the next step taken by the MOH: the issuance of a Trespass Act notice to the Applicant. On November 26, 2020, the MOH issued the following notice to the Applicant:

NOTICE UNDER THE TRESPASS TO PROPERTY ACT

November 26, 2020

To: Adam Skelly, owner/operator of Adamson Barbecue

Re: Adamson Barbecue, located at 7 Queen Elizabeth Boulevard, Toronto, Ontario, M8Z

1L8

On November 24, 2020, I issued an order under section 22 of the Health Protection and

Promotion Act, R.S.O. 1990, c.H.7. (the "Order") requiring the closure of Adamson

Barbecue Limited, operating as Adamson Barbecue, located at 7 Queen Elizabeth

Boulevard, Toronto, Ontario, M8Z 1L8 (the "Premises"). This legally enforceable Order

establishes that it is my authority to determine which persons will be allowed to enter the Premise at any time or for any purpose. Accordingly, and pursuant to the Trespass to Property Act, R.S.O. 1990, C.T21, I am an occupier of the Premises.

As an occupier, I have issued this Notice of Trespass under the authority of the Trespass

to Property Act to all persons who do not follow my lawful Order. This Notice confirms that you are not permitted to access, enter in or be on the Premises.

Please be advised that this Notice of Trespass may be enforced in accordance with the

provisions of the Trespass to Property Act, or by any other legal means available to the

City of Toronto.

In the event that you do not adhere to the terms and conditions of this Notice of Trespass, the Toronto Police Service may charge you under the Trespass to Property Act.

Please be further advised that under the Trespass to Property Act, every person who

engages in an activity on premises when the activity has been prohibited under the Act is guilty of an offence and is liable, on conviction, to a fine of not more than $10,000.

Please contact the above number if you have any questions or concerns regarding this

Notice.

201The stated authority for the notice is the s. 22 order, which the MOH asserted provided her with the lawful authority to control entry to the restaurant premises, which made her the occupier of the restaurant premises. The definition of “occupier” under the Trespass Act includes, “A person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises even if there is more than one occupier of the same premises”.

202The s. 22 order required the Applicant to close the restaurant. He refused to do so, and after he was served with the order, and faced with his stated intention to continue to flout the order, the MOH issued the Trespass Act notice, having exercised her power of control over the restaurant. That notice required the Applicant not to enter the closed restaurant.

203I am satisfied that the MOH acted within her authority to issue the Trespass Act notice to the Applicant, having taken the first step, by issuing the s. 22 order to close, and having received the clear response from the Applicant that he would not obey that valid order.

204By virtue of the HPPA, the MOH had the authority to close the restaurant, and thus to control “the activities” within the restaurant premises. This made her an occupier of the premises during the life of the s. 22 order. Both the directions and the Trespass Act notice were actions available to the MOH to enforce a lawful s. 22 order which the Applicant had refused to obey. The s. 22 order gave the MOH the authority to determine who could have access to the restaurant. This included the Applicant who had stated his intention to breach the order and demonstrated that he would continue to do breach it.

205The Applicant submitted that the Trespass Act notice was unlawful because the MOH agreed with counsel’s suggestion on cross-examination that this was an “unprecedented” step. I do not agree. Unprecedented in this context means that this was the first time that the MOH had used this mechanism of enforcement. In conjunction with the lawful s. 22 order, and the Applicant’s actions in response, I find that the MOH was reasonable in serving the Trespass Act notice. The definition of “occupier” under the Trespass Act applies to the MOH as a time limited occupier, during the life of the s. 22 order. The MOH had the legal authority to control the premises and the activities carried on in the premises, connected to her public health mandate and the control of the spread of a communicable disease. The source of her authority was by way of the HPPA with procedural safeguards in place to prevent the abuse of such authority, including the need for reasonable and probable grounds, a reasons requirement, and a mechanism for review to the HSARB.

206As for the question of whether the directions under s. 24, or the Trespass Act notice breached the Applicant’s Charter rights, I apply the reasoning above under the analysis of the s. 22 order. The directions and notice drew their authority from the s. 22 order which I have found did not breached the Applicant’s rights under the Charter.

207The Applicant also submits that the Trespass Act notice amounted to a “seizure” of the restaurant by the MOH, contrary to s. 8 of the Charter. The Applicant relies on R. v. Buhay, 2003 SCC 10, [2003] 1 SCR 631, in which Arbour, J. for the unanimous Supreme Court found that a warrantless search of the accused’s rented bus depot locker breached his s. 8 rights. At para. 33 of Buhay, Arbour J. wrote that:

The conduct of the police — opening of a locked locker over which the appellant still had lawful control and taking possession of its contents — constituted a “search” within the meaning of s. 8 as well as a “seizure”, the essence of which is the “taking of a thing from a person by a public authority without that person’s consent”: R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at p. 431, per La Forest J.

208As the Supreme Court made clear in Buhay, the “taking of a thing” can amount to a seizure, where the authorities seize things belonging to a person, that is the contents of a place, whether it be a home, a bus locker, or a hotel room, over which an individual has a reasonable expectation of privacy. A warrantless entry, and seizure of items within a place will attract the protection of s. 8 of the Charter.

209However, in this instance, the MOH did not take things belonging to the Applicant. Her actions were directed at enforcing the Applicant’s choice to breach the s. 22 order that required him to close the restaurant to indoor dining. The MOH was enforcing the s. 22 order by controlling access to the restaurant by the public, to prevent the Applicant’s commercial activities. These measures did not involve a search or a seizure of a thing in which the Applicant had a privacy interest. I apply the reasoning of the Supreme Court of Canada in Quebec (Attorney General) v. Laroche, cited above under the s. 8 analysis related to the s. 22 order apply to the issuance of the Trespass Act notice as well.

H. If Toronto or the MOH breached any of the Applicant’s Charter rights were those actions justified under s.1?

210The Applicant submits that the alleged Charter breaches cannot be justified by s. 1 of the Charter. He submits that the Oakes test applies to the s. 1 analysis concerning the Toronto respondents, including the MOH. Toronto submits that the Doré framework applies because these were the actions of an administrative decision-maker within her mandate, and thus the standard of review is one of reasonableness at the s. 1 stage: Doré v. Barreau du Québec, 2012 SCC 12, 1 S.C.R. 395. Toronto made submissions under both approaches. For this reason, and because under either analysis I would find that any breach to the rights of the Applicant would be justified, I apply the more stringent test as set out in Oakes. As the Court of Appeal observed in Trinity Bible at para. 75, there is “analytical harmony” between the Doré framework and the final stages of the Oakes framework when assessing the reasonableness of a limit on a Charter right under s. 1.

211First, I find that the objective of the MOH’s measures was “pressing and substantial.” The MOH was acting to protect public health and decrease the risk of transmission of COVID-19 in Toronto during a period when the cases of COVID-19 were increasing.

212Second, there was a rational connection between the measures undertaken by the MOH and the harm that the MOH was addressing. As discussed above the measures need only further the legitimate goal. Toronto’s evidence supports such a finding. The MOH acted to address the public health infractions at the restaurant. The MOH relied on observations of indoor dining, failure to use masks or face coverings, and failure to maintain physical distancing. The evidence from Dr. Hodge and Dr. de Villa that she did so to respond to the elevated risk of COVID-19 transmission associated with these activities supports the finding of a rational connection between the order, directions and Trespass Act notice to the objective of reducing the transmission of COVID-19.

213On the question of minimal impairment, the MOH’s measures fell within a range of reasonable options. The MOH used a staged set of measures, beginning first with the s. 22 order, which if complied with would have meant a temporary closure to indoor dining. The order did not prevent the Applicant from permissible forms of selling food. The precautionary principle endorsed by the Court of Appeal applies. The HPPA authorized the MOH to take reasonable precautionary measures to protect public health. The Applicant responded by announcing he would ignore the law and the order. The MOH responded with enforcement, to the extent needed to ensure the closing of the restaurant. The protest was peaceful. The external protest was peaceful. The only evidence of damage was by way of the Applicant kicking open and breaking the lock put on the restaurant by the locksmith retained pursuant to the MOH’s directions. Contrary to the Applicant’s submission, I find nothing in the record to support a finding that there was anything “vicious” about the enforcement measures taken by Toronto or by Ontario.

214Finally, I find that the actions of the MOH were proportional to the impact on any rights those measures may have limited. The salutary effects of the measures taken by the MOH included protecting the community, including vulnerable groups, from serious risk of illness, hospitalization, and death. The public health benefits outweigh the deleterious effects on the business operations of the Applicant.

Conclusion

215I dismiss the application for judicial review, constitutional and Charter relief.

216If the parties are unable to agree as to costs, they may propose a timetable to exchange brief written submissions on costs (maximum 4 pages) via my judicial assistant.

Leiper, J.

Released: March 17, 2026

Corrected Version, with Amendments Shown, Released: March 23, 2026

CITATION: Skelly v. Ontario, 2026 ONSC 1582

Footnotes

1. 1The re-opening colour-coded stages under the ROA range from least to most restrictive as follows: Green-Prevent, Yellow-Protect, Orange-Restrict, Red-Control and Grey-Lockdown.