Can a Vancouver Restaurant Use Common Law to Avoid Legal Consequences?
$ 100,000 fine for trespassing? A “common law” jurisdiction? A Vancouver restaurant can put up whatever posters it wants: it’s still bound by the terms of licenses, contracts, leases and, yes … public health orders.
The owner of Kitsilano’s Corduroy Restaurant recently made waves for its selfish decision to continue eating indoors, despite health orders in British Columbia. When health officials attempted to enforce the orders, she persisted in arranging in-person meals at the restaurant.
When health officials closed the restaurant, she continued to serve restaurant customers.
Things came to a head this weekend, when the owner and her customers were caught on camera harassing health officials, yelling at them to get out of the restaurant. The city of Vancouver has since suspended the restaurant’s business license.
Amid it all, owner Rebecca Matthews posted (now private) Instagram posts justifying her decision to stay open, including a post in which she claimed that “we cannot continue to protect some lives by destroying some lives. ‘others”. While such a view is embarrassing in itself, what is more embarrassing seems to be the root of her decision to defy orders.
What is the âcommon lawâ or âfree manâ argument?
A photo recently posted on Reddit shows the restaurant’s front door, covered with signs indicating that the restaurant is a “common law jurisdiction” and that fines will be imposed, starting from $ 100,000 against any health official who attempts to enforce the orders closing.
But what does this mean exactly?
The official legal answer is ânothingâ. What the signs on Corduroy’s gates refer to is a type of pseudo-legal argument that has been raised in various contexts, by individuals attempting to avoid various legal sanctions imposed by the government.
You may have heard of this argument in its other forms – âfree man of the earthâ or the ânatural personâ argument. The crux of the argument is that individuals are governed only by free will, and unless they enter into a binding contract with the state – which they have not done – then they cannot. be ruled by state authority over them. The argument was made to fight against taxes or tickets.
The courts have unilaterally rejected the plausibility of these arguments. The most frequently cited case on this subject is Meads v. Meads, an Alberta divorce case in which Mr. Meads attempted to advance what the court called a “pseudo-legal organized business case.” the names used by – is it fair to say nut-eared? – advancing them have changed.
Supporters of arguments change the names but not the substance of the way arguments are concocted. And the way it’s been done is smart.
“You keep using that word. I don’t think it means what you think it means.”
If you read these arguments without legal training, you might be persuaded to believe they contain some truth. For example, arguments often refer to very old laws such as the British North America Act or the principles of admiralty law as the source of the legal conclusion. The arguments themselves draw on real language used by lawyers and in courts all the time.
The notices posted on the doors of Corduroy refer to the restaurant being under common law jurisdiction. Without reading anything that follows, it is technically true. British Columbia is a common law jurisdiction. But, to quote Inigo Montoya, âYou keep using that word. I don’t think it means what you think it means. Common law jurisdiction does not refer to a person’s right to make their own rules and to live by the rules they want. Rather, it refers to a legal system governed by laws as interpreted by the courts. Judges set a precedent, which creates and shapes the law.
But the power in a common law jurisdiction rests with the judges. And British Columbia judges have consistently rejected the idea that health orders designed to protect against COVIDThe -19 pandemic goes too far.
Even in a common law jurisdiction, the government still has the power. Laws are drafted and interpreted by the courts, which determine the government’s intentions when drafting the law. But the government still retains the power to write rules and to some extent tie the hands of judges with those rules.
Nothing in the legal sense of the term âordinary jurisdictionâ implies that Corduroy can exempt himself from complying with public health orders, bringing in health officials, or entering without permission.
Are Vancouver Coastal Health inspectors âinfringingâ on the enforcement of an order? No.
The trespassing signs, which are recommended notices in the pseudo-legal babbling manual, have their roots in the British Columbia Trespass Act, which itself contains a trespass ban section. The Act provides remedies for victims of trespassing who post such notices on their properties.
So if you were to search for it, you might see that it is connected to something that feels real. That’s the thing with these arguments. They’re just close enough to the real law that it’s easy to be fooled.
Even trespassing itself is a loaded term. Trespassing in common law jurisdiction refers to a tort. It is a wrongful civil act to enter another person’s property without the right to do so. Health officials are permitted to enter restaurant premises and indeed any premises to enforce public health orders. And, of course, the trespassing law states that it does not apply to people who enter a premises with legal authority.
Oh, and the $ 100,000 fine for trespassing on restaurant property? Well, these fines cannot be imposed by an individual. In a civil action for trespassing, the court would determine the amount of financial compensation, which would be limited to the damage suffered by the trespass. It would be exactly $ 0 in a case like this given that no intrusion has or can occur.
The ârightsâ you waive when you own a business
But even entertaining for a moment (can’t believe I’m doing this) the idea that Ms. Matthews needed to contract with the state in order to give up her rightsâ¦ she did.
By applying for a business license, it entered into a contract with the city of Vancouver. By applying to become a catering establishment, she entered into a contract with the health authority that included the power to inspect and enforce health ordinances. By applying for a GST and the PST number, it has contracted with the provincial and federal governments to collect and pay taxes. Ditto for the liquor license. And the lease, assuming she doesn’t own the property, likely contains standard terms regarding illegal activities.
If her position is that a contract cannot be unilaterally imposed on her by the state, then she cannot unilaterally cancel all the contracts she entered into when starting the restaurant. Even assuming that his arguments posted on the door have some legal merit, which they don’t, they are not applicable in his case.
Kyla Lee is a Vancouver-based criminal lawyer