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COVID lockdown enforcement: The cost of not doing business

Tuesday, March 02, 2021 @ 1:33 PM | By Caryma Sa’d

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Caryma Sa’d %>
Caryma Sa’d
Adamson Barbeque chain owner Adam Skelly is an anti-lockdown folk hero. Alternatively known as BBQAnon, Limp Brisket — or as I call him, BBQ Dude Bro — Skelly portrays himself as the quintessential everyman, routinely sporting a backwards baseball hat, plaid and a scruffy beard. The Toronto-area restaurateur is carefully crafting his brand as a champion of small businessowners amid the pandemic.   

Skelly gained fame and notoriety after his restaurant became a flashpoint for opponents of government-mandated shutdowns. In November 2020, he permitted and encouraged indoor dining in flagrant defiance of public health orders. Skelly took to social media to rally support, raising close to $338,000 in GoFundMe donations within weeks.

Unmasked crowds gathered in the hundreds at his Etobicoke, Ont., location. At one point, Skelly allegedly broke through a wall to re-enter the restaurant after being locked out of the property. And so, the City called in the cavalry — quite literally, in fact. Dozens of police officers were dispatched to the scene, some of whom were on horseback. Skelly was ultimately charged with several provincial and criminal offences, including mischief and attempting to obstruct police.

In December 2020, Skelly received an invoice for $187,030.56 from the Toronto Board of Health for “expenses incurred … in carrying out directions given by Dr. Eileen De Villa.” The bulk of the charges ($165,188.73) were attributed to Toronto Police Services, with the balance linked to staffing costs for Municipal Licensing & Standards and Toronto Public Health and expenses for locksmiths and contractors.

The City’s hefty invoice raises legitimate issues. Is there any authority for the municipality to recoup police costs in the context of a “protest” — and if so, might this have a chilling effect on people asserting their constitutional rights?

Costs recovery under the Act

Under the provincial Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (HPPA), a city’s medical officer of health can, by written order, require a person to take or refrain from taking a specified action in respect of a communicable disease, such as COVID-19. This includes the authority to pass an order regarding “the closure, by the owner or occupant, of the entire place or of a specific part” of a premise with a view towards decreasing the risk to public health presented by the communicable disease.

(Note: I do not represent Skelly, nor do I have any direct involvement with his case. I am not privy to details about Skelly’s charges or the invoice from the Board of Health beyond what has been posted publicly. It may transpire that the City of Toronto is relying on an authority other than the Health Protection and Promotion Act to try and recover costs from Skelly.)

On Nov. 13, 2020, Dr. Eileen De Villa, medical officer for the City of Toronto, issued a Class Order pursuant to s. 22(5.01) of the HPPA. The order applied to a variety of businesses and establishments, including restaurants. The order prohibited indoor dining.

When a person subject to an order under s. 22 refuses to comply, the medical officer of health can take specific actions with respect of “decreasing the risk to health presented by the communicable disease.” In certain circumstances, they may need to give directions to persons such as bylaw officers and police to enforce compliance. Such directions could include “authorizing and requiring the placarding of premises.”

Importantly, the HPPA provides that the City need not bear the cost of such enforcement action. Section 24(5) states as follows (emphasis added):

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.

The City can therefore sue for the cost of expenses associated with enforcing directions to carry out an order under s. 22 of the HPPA. Of course, being able to sue does not necessarily make it in the public interest to do so.

Recovering enforcement costs

According to Toronto’s chief communications officer, Brad Ross, the City rarely invokes the power to invoice citizens for the cost of services. It seems unlikely that Skelly would have been charged for enforcement action if he co-operated quietly with public health officials instead of creating such a public spectacle.

Shockingly, the cost of Toronto Police represents around 88 per cent of the total bill invoiced to Skelly. Either the amount is an accurate reflection of the actual cost, which raises questions of police efficacy, or it is an inflated number, which raises questions of fairness.

At worst, there is a risk that charging dissidents for police services will normalize a pay-to-protest environment that undermines constitutional rights. The threat of recovering costs might become a tool to discourage “undesirable” civil disobedience. One can imagine, for example, the irony of people organizing against police brutality being expected to foot the bill for law enforcement presence at a peaceful demonstration.

Still, the context of the pandemic is a unique factor that may justify recouping enforcement costs. In Ontario v. Adamson Barbecue Ltd., 2020 ONSC 7679, Skelly (and anyone acting on his behalf) was restrained from contravening the strict control measures of Ontario Regulation 82/20 by any means whatsoever. As Justice Jessica Kimmel notes, “This court does not condone civil disobedience of public health and welfare regulations.”

Caryma Sa’d is a sole practitioner focusing on criminal, landlord/tenant and cannabis law. She is frequently called upon by journalists as a trusted source for their news stories.

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