Vaccination status of patrons were not checked prior to entry and employees were not wearing masks
The Ontario Superior Court granted a restraining order and ordered the sheriff to lock up J.A.K.K. Tuesdays Sports Pub for defying an order to comply with regulations addressing the COVID-19 pandemic.
In Oglaza v. J.A.K.K. Tuesdays Sports Pub Inc., 2021 ONSC 7473, J.A.K.K. is an establishment subject to Rules for Areas in Stage 3, O. Reg 364/20 (Regulation), which contained provincial measures for addressing the COVID-19 pandemic. Included in this Regulation is the mandate that all businesses must check and allow only those fully vaccinated against COVID-19 to enter. But Kelly Hale, owner of J.A.K.K., publicly and openly announced that he would not comply.
During an inspection, J.A.K.K. had a marquee which said: “SAY NO TO VAX PASSPORTS ALL WELCOME AT JAKKS.” It also had other signs with a similar message on its door and windows. Hale and his staff were not wearing masks, nor did they request proof of vaccination from patrons.
Dr. Piotr Oglaza, as Medical Officer of Health for Kingston, Frontenac and Lennox and Addington, issued an order under section 22 of the Health Protection and Promotion Act, RSO 1990, c H.7 (HPPA) requiring J.A.K.K. to comply with the Regulation or to close their business until they comply. Instead of appealing the order, J.A.K.K. refused to comply, as observed in a second inspection that all the signs ordered removed were still there. When spoken to, Hale said he would not remove the signage and that he intended to defy the order.
Pursuant to section 102 of the HPPA, Dr. Oglaza, represented by David Adams and Matthew E. Taft, sought a restraining order against J.A.K.K. and have the sheriff lock the doors of the premises. The court granted the application, finding that J.A.K.K. had not only committed multiple “clear breaches” of the Regulation, but “continue to actively and publicly flout these enactments.”
“[J.A.K.K.] may not like the law. And they have the right to speak out against the law and to challenge the policies that underlie the law. But they must comply with the law as it stands,” said the court.
As for the locking of the property, the court said that remedies generally should be proportionate to the nature and extent of the contravention. But in this case, the court found that such an order is not disproportionate or otherwise unreasonable, and if there are good reasons to access the premises, J.A.K.K. is at liberty to ask for a variation of the order.
Justice Graeme Mew, the author of the decision, further said: “should I be mistaken in finding that the ‘locking’ term is within the permissible scope of an order under section 102, I would nevertheless make such an order pursuant to the court’s power to grant an interlocutory injunction or mandatory order, on such terms as it deems just, contained in section 101 of the Courts of Justice Act.”