Common law won’t save a small business from facing fines after violating provincial COVID restrictions

Common law doesn't apply in regulatory cases, mainly civil suits

The Simmering Kettle in Barrie recently had its liquor license pulled following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to the Kettle’s social media channels, it is immune to these restrictions under something called common law.

Common law, or judgement law, involves the practice of looking back at previous rulings made by the courts in order to guide decisions on similar ongoing cases. “Common law is case law,” said Barriston Law Senior Associate Joshua Valler, who gave Barrie 360 a crash course on the term. “It’s when someone sued someone, or a case ends up in front of a judge, a judge makes a decision on the matter. That is called common law.” A judge’s decision sets a precedent that can be referred to at a later date.

SIMMERING KETTLE LOSES LIQUOR LICENCE, COULD FACE FURTHER ACTION FOR BREACHING PROVINCIAL ORDER FORBIDDING DINING IN

“All provinces, with the exception of Quebec, follow the common law, or judgment law,” he added.

Can common law help a restaurant avoid or mitigate being fined, having its liquor license removed, or being shut down by health inspectors altogether?

Simple answer: No.

Complex answer: Common law only applies to civil litigation and some criminal proceedings, but would be extremely difficult to apply to areas like by-law violations. “There’s a bit of a difference when you’re dealing with regulatory proceedings,” said Valler. “Say there’s a fine issued by the Ministry of Labor, or an inspector hired by the province to ensure compliance with respect to the regulations. There will be a different standard if there is a fine that they want to challenge; there’s going to be a different sort of court and there are different arguments that are available to them.”

Valler adds that common law could apply in cases involving a civil lawsuit, like a former employee suing an employer after being laid off. He says there are such cases before the courts already, and with few precedents to draw on, judges will have to scrutinize decisions made by employers. “What you’re going to see, I think, is the judge will look at the standard of what’s reasonable,” he said. “Did they follow the advice of the public health officials in their local health units? Did they implement the proper safety protocols to ensure that they maintain a safe and clean business space for customers and for employees? And did they follow the regulations that were in place?”

While some businesses that have been penalized for violating current restrictions have indicated a willingness to fight fines or charges levied, there has been word others will fight the legality of the restrictions themselves. Valler says that argument will take a while to play out in the courts. “They could look at the validity in the context of COVID-19 and was it a justifiable limitation? Now, that’s going to take a while to work its way through the court as well. Were these restrictions justified? And where did they even go as far as to violate the Charter of Rights and Freedoms or other legislation?”

Since restrictions came into place, the Simmering Kettle has faced monetary fines for staying open for indoor dining. The restaurant was also fined for not renewing its business license. On Friday, the owner indicated she would pay her fines and renew her licence.

The Alcohol and Gaming Commission of Ontario (AGCO), which was responsible for suspending the Simmering Kettle’s liquor licence, says it has moved to have the licence revoked permanently over violations of provincial restrictions. “This is a very difficult time for all Ontarians. The hospitality sector has been particularly hard hit by the pandemic, and we understand and share the concerns faced by those whose livelihood depends on it,” said AGCO registrar and CEO Tom Mungham. “We know the vast majority of licensed establishments are also doing their part, despite the toll it’s taking on them. We never like taking these actions, but we have a mandate to protect the public and ensure the safety of our staff and we will not hesitate to take the actions needed to do so.”