Staying open could have long-lasting legal repercussions for some small businesses, potential civil lawsuits, says local legal expert

"If you want to choose to stay open, you have to make sure you're on solid legal footing."

The City of Barrie has hit several businesses with fines following the latest shutdown order from the province. A local lawyer says you can try to fight it, but you better be on good legal footing first.

Joshua Valler, Senior Associate of General Civil Litigation at Barriston Law in Barrie, says if businesses are prepared to stay open in contravention of the provincial edict, they had better be ready for a fight. “You’re going to see a lot of creative arguments coming from businesses about why they should be permitted to continue operating their business, despite the regulations that are in place currently in the stay-at-home order,” Valler predicted. “As long as they can demonstrate that they follow the rules and the regulations and they were fined regardless, then obviously, there’s a defence there. But if they’re staying open to stay open, and you’re not complying with the terms in the regulations, then obviously, there’s going to be an issue there and the fine can very well stand.”

While many businesses have indicated they will remain open to preserve their livelihood, Valler points out there might be even more at stake. “Say you’ve remained open and someone gets sick because, for whatever reason, you’re not following the rules and regulations in place at the time. You could very well be sued, potentially civilly, for any damages that result from that,” said Valler. “Say they get very sick and have to miss time off work. That can be a potential liability for the employer or for the business that’s continuing to operate. So, there are other concerns that go beyond these rules and regulations from the Ministry of Health.”

While it is anticipated some of those who face fines over contravening COVID restrictions will fight those fines in court, Valler says that’s a legal battle that could go on for quite some time. “This is all very new stuff. It’s less than a year old. It hasn’t been tested by the courts,” said Valler. “Right now, there’s limited guidance from the courts as to how the courts would view those challenges and whether or not those challenges would succeed.”

“We also had the tragedy that occurred at Roberta Place and now Roberta Place is being sued here locally as well. Obviously, that’s going to take years to play out in the court system; it’s not going to be resolved, overnight, it’s not going to be resolved in the next week, it’s going to take years to go through the system,” he added.

The current shutdown order requires restaurants and other eateries to provide take out or delivery only, while personal care services like hairstylists and tanning salons must close altogether. The stay-at-home order additionally stipulates that all non-essential retail locations provide curbside pickup only, while pharmacies and stores that sell groceries may permit indoor shopping. There have been some websites circulating, aimed at those small businesses forced to close, promising to reveal legal ways to stay in operation. Valler says you should take it with a grain of salt. “You’ve got to be careful. My advice is always to seek the opinion of a lawyer or legal practitioner, to ensure that you’re not running offside against any rules or regulations. You could go on this website and think, ‘Oh, you know, what this rule applies to me or this a loophole that applies to me,’ and then he very well could not apply to you.”

“You really do need to look at it through the lens of your own specific business; talk to your legal advisors to determine whether or not this is something that could assist you,” he continued.

Valler adds it would be tough to prevent health officials from inspecting and issuing fines as well. “What we’re looking at is the Ministry of Health and public health inspectors, as well as the Ministry of Labour, are given wide-ranging powers to inspect and enforce regulations that have been imposed by the government,” he said. “They (small business owners) could also be fined for being in contravention of the regulations in the orders that are in place as well, for refusing to allow for inspection.”

“I get it. I can empathize with a lot of small businesses, some of my friends who have small businesses, it’s a tough, tough, tough spot to be in right now,” concluded Valler. “I just want to stress that these regulations, despite the fact that some people may not like them, they were put in place for a reason, and whether or not you agree with them, if you want to choose to stay open, you have to make sure you’re on solid legal footing.”

As of Wednesday afternoon, the City of Barrie had fined four businesses found to be in contravention of the provincial shutdown order.