The Honourable Justice Graeme Mew of the Ontario Superior Court of Justice has released his written reasons for endorsing a Section 22 Order for violation of the Reopening Ontario Act (ROA) made under the Health Protection and Promotion Act against J.A.K.K. Tuesdays Sports Pub owner, Kelly Hale.
Mew also ordered the pub owner to pay the court costs of Kingston, Frontenac, Lennox and Addington (KFL&A) Public Health, who were involved in the court cases regarding Hale, J.A.K.K. Tuesdays, and the violations. Hale made his second appearance in court on Friday, Nov. 19, 2021, to argue that a Section 22 Order be overturned.
After noting that Mr. Hale chose to represent himself at the hearing despite “both the applicant and the court” offering to adjourn to a later date if Mr. Hale needed more time “whether to prepare his case or to obtain legal representation, or both,” the judge made written comments on his decision.
Mew noted that the Section 22 order was valid, despite Hale’s insistence that “it was the product of an abuse of process and that the condition precedent to the making of such an order was not met.”
Section 22 states that “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, that a communicable disease exists or may exist or that there is an immediate risk of an outbreak of a communicable disease.“ The statute “expressly authorizes a medical officer of health to make an application to the court without notice.”
Mew rejected Hale’s argument that notice was given to the responding party in some other court cases; such an occurrence, Mew said, does not mean that notice has to be given. Further, the Medical Officer of Health was validly “concerned that if notice had been given, it would lead to larger numbers of people congregating at the respondents’ pub, with attendant increased risk of infection.”
The judge also explained that Hale’s claims that “the principle of being presumed innocent until found guilty had been violated” were invalid because that principle “does not apply to administrative measures taken by a public authority or regulator to enforce laws which are not criminal or quasi-criminal laws in substance or effect.”
The judge noted that Hale argued there “has been no known outbreak of COVID-19 at, or attributable” to, his pub, and that he reasoned that if there was no immediate risk of an outbreak at the pub, there was no reasonable basis to make a Section 22 Order. However, “because the respondents have not required patrons to provide contact information or submit proof of vaccination status, it would … be harder to associate infections in the community with the respondents’ business,” Mew stated.
Furthermore, Mew observed that Hale had continued to publicly proclaim his defiance of the law. The judge noted as an example Hale’s address to a crowd in front of Kingston City Hall on Sunday, Nov. 14, 2021, where he said, “Just say no… It’s all illegal. And they know it’s illegal, folks. They’re playing us. We need to stand. If a hundred of us take our masks off and walk into the local mall and sit in the food court and have a bite to eat, what are they going to do?”
Hale argued that asking customers to provide health details and other personal information is an invasion of privacy and human rights violation and that he risked being sued if he did so.
The judge said, “ultimately, little can be done to prevent someone from starting a civil action, however misguided or devoid of merit.”
Hale argued that he lived at the pub, and “that he has a verbal agreement with the property manager” to say so.
The judge pointed out that even “if the pub is now Mr. Hale’s personal residence, the fact remains that he was running a business from the premises in contravention of provincial law. When asked whether he would comply with the Rules for Areas in Stage 3, he said he would not. In such circumstances, it would make a mockery of the Public Health laws if Mr. Hale could avoid their application by claiming that his business is exempt from following those laws because he claims to live at the place of business.”
As the applicant, Kingston Frontenac Lennox & Addington (KFL&A) Public Health is entitled to recover the costs associated with the application, and therefore sought $20,832.14.
Hale, said the judge, “offered no perspective on what amount of costs they might reasonably expect to pay.” However, Hale has “repeatedly and openly flouted the rule of law,” and as a result “he has suffered the self-inflicted demise of his business and, hence, his own livelihood. But the cost to the public purse has also been immense in terms of legal costs and the law enforcement, public health, court and judicial resources that have been consumed,” Mew explained.
As a result, Hale was ordered to pay costs in the amount of $20,000, within 30 days.