Common Law Won’t Save Small Business From Fines After Violating Provincial COVID Restrictions
Barrie’s Simmering Kettle recently had its liquor license revoked following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to Kettle’s social media channels, he is immune to these restrictions under what is called common law.
Common law, or the law of judgment, involves the practice of going back on previous decisions rendered by the courts in order to guide decisions on similar pending cases. “Common law is case law,” said Joshua Valler, senior partner at Barriston Law, who gave Barrie 360 a crash course on the term. “It’s when someone sues someone, or a case ends up before a judge, a judge makes a decision on the matter. This is called common law. A judge’s decision sets a precedent that can be referred to later.
The simmering kettle loses its liquor license, could face further lawsuits for violating the provincial order banning dining in
“All the provinces, except Quebec, follow the common law, or the law of judgment,” he added.
Can the common law help a restaurant avoid or mitigate fines, removal of its liquor license, or complete closure by health inspectors?
Simple answer: No.
Complex answer: The common law only applies to civil litigation and certain criminal proceedings, but would be extremely difficult to apply to areas such as regulatory offenses. “There is a little difference when it comes to regulatory procedures,” Valler said. “Let’s say there is a fine issued by the Ministry of Labor or an inspector hired by the province to ensure compliance with the regulations. There will be a different standard if there is a fine they want to challenge; there is going to be another type of tribunal and different arguments are available to them.
Valler adds that the common law could apply in cases involving a civil lawsuit, such as a former employee suing an employer after being laid off. He says there are already such cases in court, and with little precedent to draw upon, judges will have to review decisions made by employers. “What you’re going to see, I think, is that the judge will look at the standard of what is reasonable,” he said. “Did they follow the advice of public health officials in their local health units? Have they implemented the appropriate security protocols to ensure that they maintain a safe and clean business space for customers and employees? And did they follow the regulations in place? “
While some companies that have been penalized for violating current restrictions have indicated their willingness to fight fines or fees imposed, it has been said that others will fight the legality of the restrictions themselves. Valler says that argument will take a long time to play out in court. “They could look at validity in the context of COVID-19 and was that a justifiable limitation? Now, it’s also going to take some time to make its way to court. Were these restrictions justified? And where have they even gone so far as to violate the Charter of Rights and Freedoms or other laws? “
Since the restrictions came into effect, the Simmering Kettle has been fined for staying open for indoor dining. The restaurant was also fined for not renewing its business license. On Friday, the owner said she would pay her fines and renew her license.
The Alcohol and Gaming Commission of Ontario (AGCO), which was responsible for the suspension of the Simmering Kettle’s liquor license, said it had asked for the license to be permanently revoked due to violations of provincial restrictions. “It is a very difficult time for all Ontarians. The hospitality industry has been hit particularly hard by the pandemic, and we understand and share the concerns of those whose livelihoods depend on it, ”said Tom Mungham, Registrar and CEO of AGCO. “We know that the vast majority of licensed establishments are also doing their part, despite the toll that this imposes on them. We never like to take these steps, but we have a mandate to protect the public and ensure the safety of our staff and we will not hesitate to take the necessary steps to do so. “