Court rejects appeal of J.A.K.K. Tuesdays owner Kelly Hale

The legal saga of one local business owner who refused to comply with Public Health mandates during the COVID-19 pandemic continued right up until the end of 2022, when Kelly Hale, owner and operator of J.A.K.K. Tuesdays Sports Pub, once again appeared in court.

This time, Hale appeared in the Superior Court of Justice Divisional Court to hear the court’s findings in the case of his most recent appeal. Overseen by the Honourable Stephen Firestone, Regional Senior Judge for the Toronto Region, alongside Justices Thomas Lederer and Edward Morgan, the ruling saw Hale appear by video on Thursday, Dec. 29, 2022.

In order to understand the case before the court that day, it is important to look back on the storied history over the past two years that saw J.A.K.K. Tuesdays lose its liquor licence and business licence, and become a makeshift clubhouse for Hale and his supporters: fellow protestors of the mandates imposed on businesses as the pandemic continued to strain the health-care and economic sectors throughout Ontario.

On September, 14, 2021, Hale was reported as one of over 50 Kingston business owners who said they would not comply with COVID-19 mandates regarding requiring patrons to wear masks and provide proof of vaccination.

On September 30, 2021, the Alcohol and Gaming Commission of Ontario (AGCO) suspended the liquor licence of J.A.K.K. Tuesdays.

By late October 2022, the Licence Appeal Tribunal had denied an appeal of the AGCO decision, instead extending the liquor licence suspension pending its permanent revocation.

On Wednesday, Nov. 3, 2021, the sports bar’s business licence was revoked; then on Thursday, Nov. 4, KFL&A Public Health issued a Section 22 order for violation of the Reopening Ontario Act. As of Thursday, Nov. 11, 2021, J.A.K.K. Tuesdays still remained open, despite a court order from the Superior Court of Ontario.

The following day, November 12, J.A.K.K. Tuesdays’ liquor licence was permanently revoked, and Hale and protestors at the business location who refused to leave were evicted by Kingston Police on November 13.

Hale made his second appearance in court on Friday, Nov. 19, 2021. Acting in his own defence, he argued that his rights under the Canadian Bill of Rights were being violated, and pressed for a trial by jury. Hale also had the opportunity to cross-examine Dr. Piotr Oglaza, KFL&A Public Health’s Medical Officer of Health (MOH), regarding his reasoning behind the issued orders. The court, overseen by Justice Graeme Mew, decided that day, perhaps foreshadowing decisions made over a year later, that it “had not been swayed that the orders that have been made should be set aside.” The Section 22 Order remained in effect.

By December 6, 2021, Justice Mew had disclosed his reasons for endorsing the Section 22 order against J.A.K.K. Tuesdays, and also ordered Hale to pay the court costs of KFL&A Public Health.

On December 29, 2022, the court briefly went through that history, noting some of the violations that occurred at the west-end business location. These included the posting of signs encouraging others to ignore Public Health mandates, an attempt to organize a “restriction-free Christmas market” even after the serving of the Section 22 order, and even a sign on a chair that read:

“This Chair is reserved for Kingston Frontenac Lennox & Addington Public Health Officer to check vaccine passport information. If this chair is empty, it means that KFL&A is not enforcing the vaccine mandate.”

The court documents also note that Hale refused to remove the signs and “told inspectors that he intended to defy the Section 22 order and the regulation.”

But focusing on the current appeal, the court heard that “to this point, we have said nothing about the decision of the Health Services Appeal and Review Board, which is the subject of this review.”

Court documents explain that, when an MOH makes an order under Section 22 of the Health Protection and Promotion Act, that MOH is required to include the advice that the recipient of the order is entitled to a hearing by the Health Services Appeal and Review Board. While Hale initially appeared in court in November of 2021 without having filed for such a review, court records show that when he returned to court two days later, he then requested a hearing before the Board.

The Health Services Appeal and Review Board conducted its hearing over three days in January 2022, with Hale representing himself and J.A.K.K. Tuesdays. The court found that of the two experts Hale had proffered that day, one was of questionable qualification to speak to the medical matters at hand, and the other was “not qualified.”

“The Board reviewed the applicable legislation and considered at length whether the conditions precedent to the issuance of the Order under s.22 of the Health Protection and Promotion Act had been met,” court documents state. These conditions would include whether a communicable disease existed or may have existed at the time of the order, that the communicable disease presented health risks, and that the requirements specified in the order were “necessary in order to decrease or eliminate the risk to health presented by the communicable disease.”

“After a careful and thorough review, the Board found that the medical officer of health had reasonable and probable grounds to issue the order and confirmed it,” the court’s findings read.

“Kelly Hale was given the opportunity to make submissions before this court. His foundational submission was to repeat his reliance on the Canadian Bill of Rights. When it was pointed out that he had already been advised by the judge who dealt with the restraining order and the motion for directions that the Canadian Bill of Rights was a federal statute and had no application to provincial legislation, he indicated that he, nonetheless, continued to rely on this submission,” the decision continues.

Then, having taken note of Hale’s attempt to have the court take into account a decision made in a British Columbia case – which he did not know the citation or title of – the court stated that the case in question was tracked down but was a case in “ticket court” before a “judicial judge,” not a case in the provincial court. A judicial judge, the court stated, is “described as just above the justice of the peace.” Further, there was no written decision on that case, and, although one could be ordered, “In the circumstances, the court determined not to proceed further. We do not see how a case with different facts, in a lower court, in a different province will assist in our consideration of this matter.”

“For the reasons above we find there is no merit to this appeal. The Health Services Appeal and Review board did not err in its interpretation and application of Section 22 of the Health Protection and Promotion Act. The appeal is dismissed,” the court decision concludes.

Finally, the judges decided, the costs to be paid by Hale and J.A.K.K. Tuesdays to Dr. Oglaza and KFL&A Public Health, as agreed upon by both parties, amount to $15,000.