2023 ONCJ 159, 2023 ONCJ 159

CITATION : Toronto (City) v. 961557 Ontario Ltd., 2023 ONCJ 159 DATE : April 13, 2023 ONTARIO COURT OF JUSTICE Toronto Region B E T W E E N: HIS MAJESTY THE KING v. 961557 ONTARIO LTD., OPERATING AS “THE CROOKED CUE” REASONS FOR JUDGMENT Trial dates: August 9, 10, September 8, October 4, 28, November 17, December 12 and 19, 2022 Judgment: April 13, 2023 Counsel: Ms. S. Kym, Prosecutor, City of Toronto Mr. A. Suboch, Defence counsel M.

ROSS HENDRIKS, J.P. :- BACKGROUND: [ 1 ] The Information before me sworn on September 11, 2020, charged the defendant, 961557 Ontario Ltd., operating as “The Crooked Cue” (hereinafter the “The Crooked Cue”), with failing to comply with an order made during a declared emergency, under s.7.0.11(1)(

c) of the Emergency Management and Civil Protection Act ("EMPCA") , Order Under Subsection 7.0.2(4) of the Act - Stage 2 Closures , O.Reg. 263/20 (Exhibit 3). [ 2 ] This Information was sworn remotely under s. 23 of the Provincial Offences Act , R.S.O. 1990, c.P.33 , by Waheed Bazger, a Public Health Inspector with Toronto Public Health. Both this Information and Summons returnable on September 25, 2020 were confirmed by a Justice of the Peace.

The jurat is proper, and the offence alleged is a strict liability offence. [ 3 ] This matter commenced before a different justice of the peace, who considered a motion regarding redacted documents, by comparing them with the originals, and then who gave a decision. It is my information that because my colleague had viewed the unredacted documents, it was determined that a different justice of the peace should hear this matter. I asked the parties at the outset if they consented to me presiding, and they did so on the record. [ 4 ] The defendant’s premises is located at 3056 Bloor St.

West, Toronto, on the second floor, where it has pool tables and a bar at the back of the location, and a restaurant with a liquor licence (Exhibits 2(

D) and (E)) facing the south side to Bloor Street West, Toronto. [ 5 ] During the COVID-19 pandemic, the defendant submits that it closed off the pool table and bar area of the premises, which is covered by an intractable, solid roof, and operated the restaurant portion of its business, facing Bloor Street West, where it has a retractable roof, and what defence counsel terms as a “floor-to-ceiling” front window. PROSECUTION’S EVIDENCE: [ 6 ] The Prosecutor called two witnesses, Waheed Bazger and Sylvanus Thompson.

Officer Waheed Bazger: [ 7 ] Waheed Bazger testified that he is currently a supervisor overseeing vaccines for preventable diseases with Toronto Public Health. At the time he swore to this Information, he was a Public Health Inspector and a Provincial Offences Officer, and a Supervisor with the Vaccine Preventable diseases

section of Toronto Public Health. [ 8 ] On June 27, 2020, Officer Bazger attended the defendant’s premises at 7:00 pm, along with Municipal Licensing and Standards (“MLS”) officers for an inspection of The Crooked Cue, located at 3056 Bloor St. West, Toronto. This was a result of a complaint received by Toronto Public Health. Officer Bazger's manager, Paul DaSilva, gave him this matter to investigate, since Officer Bazger was the inspector working that day. [ 9 ] Officer Bazger described the premises as being a restaurant that also has a pool table and bar area, and the restaurant has a dine-in option.

He stated that patrons entered the premises through the street level on Bloor Street West, climbed a staircase which had a solid roof, and entered the premises on the second floor. He testified that the premises was divided into two sections, east and west, both used for food preparation and consumption as well as beverages. He identified the certified copy of the Corporate Profile Report of the numbered company that operates as The Crooked Cue, dated 2020-09-01 (Exhibit 1). [ 10 ] He met the Manager of the premises, Jennifer Stark, and explained why he was there.

Officer Bazger testified that the east and west sections of the Crooked Cue are used for food preparation and consumption of food and beverages. It has two large windows on each side, facing Bloor St. West, and each side has a retractable roof, that covered a partial portion of the ceiling. He took a series of photographs at the time, which have been entered as Exhibits 2(

A) to (G). [ 11 ] In photograph 2A and from his testimony about it, it is clear that the defendant has a large window facing Bloor Street West, which was open at the time of his inspection, and a closed window on either side of it. In this photograph, two patrons are seated at a table, and he stated that they were being served. He also confirmed that the retractable roof was open at the time of his inspection. [ 12 ] He observed patrons being served food, at individual tables, and he stated that some patrons were under the roofed

section of the premises, where there are three television sets, and some patrons were seated under the unroofed

section (Exhibits 2B and 2C). He did not measure the premises nor did he measure the retractable roof area. He described the area where the television sets were as having enough roof “to cover the seated area” of the televisions, and said that there were three or four patrons in this area. He indicated that the premises was open for business and that individual clients were providing information, for contact tracing purposes (Exhibit 2C). [ 13 ] He also took a photograph of the defendant's Liquor Licence.

At first, he said that it had been issued on December 31, 2018, but then he changed his testimony to state that it was issued on July 21, 2019 (Exhibit 2D). He described it in detail in his evidence. The licensed area indicates that it is indoor, and the North East Centre

section has a capacity of 63 clients. The second floor North West

section has a capacity of 130 clients. The second floor South Centre and East Centre has a capacity of 143 clients, and finally, the second floor West Centre has 159 client capacity. He stated that these four descriptions captured the second floor premises. [ 14 ] Officer Bazger testified that in photograph 2F, he observed another table with patrons under the roofed section. He also observed a number of patrons under the area where the roof had been retracted, and that their tables had umbrellas on them. He confirmed that the roof was open in this area.

He then described photograph 2G, in which two patrons were seated under an umbrella, another four patrons were sitting under another umbrella, and both of these tables were under a roofed section, but another table with an umbrella was under the open area, near the television. [ 15 ] Officer Bazger testified that he estimated that one-third of the establishment was under the retractable roof, and that two-thirds was covered by the hard roof, although he conceded that he did not take measurements, and only attended this premises once. [ 16 ] Officer Bazger testified that the Regulation (Exhibit 3) was in effect on the date of the alleged offence, since it ran from June 26, 2020 to July 1, 2020 under the EMCPA .

This Regulation refers to “Stage 2 Closures”. He read out the following passage from p. 3 of this Regulation at the request of the Prosecutor:

SCHEDULE 2 STAGE 2 BUSINESSES AND PLACES Food and drink Restaurants, bars etc. 1.

(1) Restaurants, bars, food trucks and other food or drink establishments may open if they comply with the following conditions: 1. Patrons must be served, i. through take-out, drive-through or delivery service, or ii. at an outdoor dining area that is, in or adjacent to the place of business, and configured to ensure physical distancing of at least two metres between patrons seated at different tables. 2. Public access to any indoor portions of the business must be limited to food pickup, payment, washroom access, access required to get to the outdoor dining area or access that is otherwise required for the purposes of health and safety.

3. No dancing or singing may be permitted in the outdoor dining areas.

(2) For greater certainty, a restaurant, bar food truck or other food or drink establishment that is in compliance with the conditions set out in subsection (1) may open in any business or place that is otherwise permitted to open under this Order. [ 17 ] Officer Bazger testified that he has conducted inspections in his role for about 10 years, including restaurants and a variety of premises, and he estimates that he has performed more than 5000 investigations and inspections. He estimates that about 10 percent of these inspections were of restaurants that had patios.

In his experience, most patios are outside the premises. He has some limited experience with patios found on the roofs of the restaurants and testified that they are in the downtown core area. [ 18 ] When asked if The Crooked Cue qualified as an outdoor dining place, he replied that, “based on my experience, I didn’t think it was.” He added that patios are usually outside and adjacent to the restaurant, typically, in front of it.

Some patios are on the roof, especially in the downtown core, and he has encountered that, too. [ 19 ] When he conducted his inspection on June 27, 2020 he did not think this premises qualified as an outdoor dining space, because the majority of patios are outside of the building, either on the street in front, or in the back, and the patios he did find on roofs did not have any roofed areas.

Based on his observations, this premises was two-thirds covered by a non-retractable roof. [ 20 ] The Prosecutor played the video of this premises (Exhibit 5), and asked him what this premises would have needed to qualify as an outdoor dining area on that date? He replied that the entire dining room should be outdoors to qualify as an outdoor dining area. In this case, at the time of his inspection, two-thirds of the dining area had a roof, and only one-third had a retractable roof area.

The retractable roof was open at the time of his inspection. [ 21 ] Finally, when asked in chief if a patio licence had been provided to him, he replied that no one provided him with a patio licence. [ 22 ] At no time during his testimony, did Officer Bazger speak of serving any type of ticket or order upon The Crooked Cue. [ 23 ] During cross-examination, Officer Bazger read out the charging

section on the Summons, which was before me. Defence counsel asked if the defendant was charged under s. 7.0.11(1)(

c) of the Act and not the Regulation, and Officer Bazger indicated that was correct. (See: Transcript, August 9, 2022, at p.52). [ 24 ] During cross-examination, Officer Bazger testified that he has not been trained in the physics of airborne droplet transmission of COVID-19. He also admitted that he has not been trained in sufficient free airflow.

The Prosecutor objected, indicating that the legislation did not mention free airflow. [ 25 ] He also agreed that initially, all restaurants were not permitted to be open, whether or not they had an outdoor dining area, starting "let's say April, 2020", and that the re-opening was graduated ( Ibid , at p. 54). [ 26 ] He also admitted that he was not an expert in outdoor dining areas. [ 27 ] He also agreed with defence counsel that the legislation does not mention “patio” within the Regulation. [ 28 ] Officer Bazger agreed with defence counsel that he had determined this premises was not an outdoor dining area, but that it could be in or adjacent, as stated in the legislation. [ 29 ] He also agreed with defence counsel that this premises could be an outdoor dining area surrounded by four walls with no roof. [ 30 ] Officer Bazger also agreed with defence counsel that the premises did not have to be a licensed patio to be open. [ 31 ] Officer Bazger testified in cross-examination that he only attended at The Crooked Cue once inside, and that his second visit was to serve the Summons to Mr.

Pappas, the owner, on the street level. [ 32 ] When asked during cross-examination if he was aware of the seating estimation when he attended, he replied, yes. He knew it was thirty percent. He was also aware that the restaurant did not allow patrons past the area where the roof retracted, replying, “okay”, to this question. [ 33 ] When asked if he only saw patrons where the roof retracted, he replied, “not entirely.” He said that some patrons were under the roof section, and then he described the “slight overhang”.

When asked if this meant in the area with the ability to retract the roof, he replied, “correct”. [ 34 ] When asked if it was a reasonable assumption that the patrons sitting in the retractable roof area, at tables with umbrellas, had those umbrellas to protect them from sunlight, he agreed that this was a reasonable assumption. [ 35 ] He also testified that airflow measurements were not taken during his inspection. [ 36 ] When asked if he had received any guidance as to what was or was not an outdoor dining area?

He replied, “not prior to the investigation itself, but before the decision to charge.” He consulted with his manager, Paul Da Silva. [ 37 ] He did not recall exactly what his manager said to him, but he said that before they lay charges, it is customary to present what you are charging with, “like a second opinion, to determine if I’m on the right trajectory.” He did not make notes of this conversation. [ 38 ] Officer Bazger testified that, "based on the evidence that I had collected, based on my observations, we made okay, I presented what they were and you know we decided that this did not constitute an outdoor dining area and as a result, I proceeded laying the charge." (See: Transcript, August 9, 2022, at p.64).

[ 39 ] When asked if he had discussed with his manager how many sides needed to be open to constitute an outdoor dining area, he could not recall it. [ 40 ] Officer Bazger agreed that if the wind was blowing from the south, the large window facing Bloor Street West would have allowed more air into the premises. [ 41 ] When asked if there is any definition in the Regulation of “outdoor dining area”, he replied there is not. (See: Transcript, August 9, 2022, at p. 70). [ 42 ] When asked if an outdoor dining area could be something other than a patio, he responded, “the majority are patios”.

He agreed it could be a non-patio, or something different from a patio, that requires a liquor licence. [ 43 ] When asked if there is any such thing as an outdoor dining licence, he replied, “no”. (See: Transcript, August 9, 2022, at p.71). [ 44 ] When asked if it did not state that the premise needed to be a licensed patio to be opened, he responded "correct". When asked if he would agree that an outdoor dining area could be conceivably something different from a patio, he replied that the majority of outdoor dining areas are patios with restaurants, but agreed with defence counsel that it could be.

He was aware of a patio licence issued by the City of Toronto, but conceded that he is unaware of an outdoor dining licence ( Ibid , at pp.70 to 71.) [ 45 ] When asked if what is an outdoor dining area is entirely subjective, he replied, “correct”. ( Ibid , at p..70.) [ 46 ] He agreed that The Crooked Cue’s retractable roof is “unique”, as described by defence counsel. [ 47 ] He was asked if he agreed that it was not unreasonable to conclude that The Crooked Cue under the retractable roof and with its floor-to-ceiling window could be an outdoor dining area, that this was a reasonable possibility?

He replied, “yes, correct.” (Ibid , at p.71.) [ 48 ] Defence counsel showed Officer Bazger a City of Toronto document entitled, “Enclosed Public Places” (Exhibit 4). It states: Enclosed Public Places Smoking and vaping is not permitted in enclosed public places.

An “enclosed public place” means the inside of any place, building, structure or vehicle (or any part of them) that is covered by a roof and where the public is ordinarily invited or has access, regardless of whether a fee is charged for entry. [ 49 ] Officer Bazger saw this definition, and was asked if The Crooked Cue was not an enclosed public place where its roof was open? He replied that parts of The Crooked Cue were covered by a roof. [ 50 ] When asked if the Regulation contemplated some aspects of a building could be covered, he re-read it, and agreed that a portion can be covered for access.

He added, “depending on where you are in the premises, it may be covered.” [ 51 ] When Officer Bazger was asked if he knew Maria Schultz, he replied, “no”. Defence counsel cited the Rule in Browne v. Dunn , and asked if he was aware of a document produced June 17, 2020, which was Ms. Schultz's personal opinion of what constitutes an outdoor dining area. He replied that was “correct”, and said that he didn’t rely on this and he was not aware of her within Public Health. [ 52 ] When asked if he knew Mike Major, he replied that he did not know him, either.

He added, it was the first time hearing the name. [ 53 ] When asked if Toronto Public Health decided to charge individuals or businesses, if it was a factor if they had received an immediate complaint, he replied, “not that I recall”. [ 54 ] When asked if he knew Mary Campbell, he said it was the first time he had heard her name.

He stated that he never consulted with her. [ 55 ] When asked if The Crooked Cue was the first premises he had inspected a restaurant with a retractable roof, he agreed it was. [ 56 ] When asked if no objective guidance had been given to him regarding what was an outdoor dining area, he said, “no”. [ 57 ] He was shown photograph 2(A), which he had taken from the ground floor, looking at the premises.

He was asked if he could see through the roof, and observe the trees in the background, and he confirmed he could see them. [ 58 ] Officer Bazger confirmed in his testimony that he knew that The Crooked Cue was not serving patrons in the pool hall area, where the roof does not retract. [ 59 ] Officer Bazger agreed that he was aware that the Regulation permitted the kitchen, bathroom and stairwell to be covered with a roof. [ 60 ] He was asked if he had ever attended "Joey" or "The Keg" both at Sherway Gardens and inspected their patios? He replied that he did not recall.

Defence counsel submitted that they have fixed roofs and three sides closed, and Officer Bazger said he did not know how to respond to this question. Defence counsel said Mr.

Pappas will testify that their premises is viewed as having patios. [ 61 ] When asked about the significance of having a liquor licence for a patio, Officer Bazger replied that he does not enforce liquor licenses and agreed that it was irrelevant. (See: Transcript, August 9, 2022, at pp. 86 to 87). [ 62 ] When asked if he and the police officers and municipal inspectors were all wearing masks when they entered the premises for the inspection, he replied, “yes”, but later on in his testimony, he replied he could not remember if the other officers wore masks.

He was asked if failing to do so would contravene the legislation, and he replied, “yes”.

[ 63 ] When shown Exhibit 5, the video of the inspection on June 27, 2020, based on the defendant's security footage, and asked if he was the man wearing the blue shirt, he initially replied that he did not know, and could not tell. When advised that Mr. Pappas will identify you as the man in the blue shirt, he said, “I can’t recall.” He agreed that the officers were not wearing masks, nor was the man in the blue shirt. The servers were wearing masks. Ultimately, he conceded that the man in the blue shirt was himself.

This was the initial and only interior visit of the defendant's premises and no charges were laid at this time. [ 64 ] When asked if he did not wear a mask because he was uncertain when you were in or out of the outdoor dining area, he said, “that may have played a role in my decision.” [ 65 ] Officer Bazger did not lay a charge when he left The Crooked Cue, but discussed the matter with his supervisors. [ 66 ] When asked if he would have laid the charge immediately if he saw rat excrement on the floor, he responded that many factors are involved in laying charges for a regular food safety violation, but that this situation was not like that, and agreed it was a novel situation. [ 67 ] In Officer Bazger's testimony in Re-Direct, at p.99-100, he was asked, "...in cross you had agreed that portions of the second floor may be classified as outdoors, did I understand that correctly?" His response was, "You did, correct." He added that he was referring to the area directly under the retractable roof.

Mr. Sylvanus Thompson: [ 68 ] Mr. Sylvanus Thompson was the second witness for the Prosecutor. [ 69 ] He is currently the CEO of Doctor T International Food Safety Consulting Services, his own consulting firm, and was previously the Associate Director with Toronto Public Health. He spent more than 20 years with the City of Toronto, and 10 years serving as Associate Director. [ 70 ] In 2020, he testified that he was the Associate Director of Toronto Public Health, and in this role, he was responsible for the food safety program.

He developed guidelines, standards, and was in charge of human resources. [ 71 ] During the COVID-19 outbreak, many staff were transferred internally, but he was one of the ones left behind at Toronto Public Health to conduct visits and meetings with the food industry. [ 72 ] He did the site visit himself at The Crooked Cue on Bloor Street, to see if it was in compliance with existing requirements for outdoor dining.

He believes this took place on June 18, 2020, and then said, “I think it was in June.” He added, it was “just before outdoor dining commencing.” (See: Transcript, August 9, 2022, at p.104). [ 73 ] When asked how he conducted this site visit, he said that the establishment was closed, but he could see the patio from the back and from the front street level. He added, “I had a clear view of the patio itself.” [ 74 ] During this site visit, he was asked if it qualified as an outdoor dining area, and he responded, “no”.

He said that an outdoor dining area was a patio with a roof and two sides open, and that this patio only had one side open. At the time, if a premises had a roof, it must have at least two sides open. [ 75 ] He described his visit as not being an inspection, just a site visit, to determine if the establishment met the requirements for outdoor dining. [ 76 ] When asked if this determination had been communicated to the defendant, he replied yes, “I made a call”, and that he left a voice mail to say he did an inspection and in his "opinion", the establishment didn’t meet the requirements for outdoor dining.

The next morning, The Crooked Cue returned his call. He reiterated his comments, and he believed he was speaking to Sam Pappas. ( Ibid , at pp 104-105). [ 77 ] He said that the caller did not dispute the findings, it was clearly only open on one side, but did not agree with the requirement to have two open sides. After this call, he testified that he was copied on an email to the City of Toronto from Sam Pappas, dated June 19, 2020 (Exhibit 6). [ 78 ] In this email, Mr. Pappas stated: Sylvanus has just informed me that I do not meet the requirements because I do not not [sic] have two open walls in his opinion.

This is classic government in action. My restaurant can achieve the conditions that are required to open. Lots of fresh air and loads of safe spacing. Someone has to explain to me why I will not be able to open. I have been totally compliant thus far. I am going BROKE!! I have people calling everyday asking me for payment. I walk into grocery stores, Ikea, Home depot Dollar stores. All inside, touch points everywhere, workers not wearing masks. People not social distancing but that’s all ok. I have come up with a safe plan to open. Cookie cutter rules do not work in this situation. I’m not asking for much.

I want to open the front ½ of my place that is under the roof with limited seating. I have already been told that I can open by my BIA and that came from the city. I have operated my business for 30 years. Employed thousands of people, paid my taxes and been a positive contributor to the community. I have never complained in all years of business. If I’m going to be denied tell me now because I’m going to go nuts and use every means at my disposal to get open. I feel like this harassment with no base in science or fact. I would like an answer from someone by the end of the day. [ 79 ] Mr.

Thompson further testified in chief that he had been assisted in developing the "guidance for the food industry" document that included a

section on patios and indicated some requirements. One of those requirements was to have at least two open sides. He described it as follows (Transcript, August 9, 2022 at p. 107): ...there was a specific

section relating to patios, right with a number of requirements, and one of the requirements was that for them to qualify as an outdoor dining area they had to have at least two open sides, sides completely without anything, if the patio is covered. And

in that document they - that document was clearly communicated to the industry, it was posted on the City's website, it was sent to a Business Association, it was sent to the Restaurant Associations, and to share as best as we could with the general public. So, that was the guidance for the industry prior to the reopening, so therefore everyone would get a chance to know what the requirements were. [ 80 ] Defence counsel objected to this question and answer, and the prosecutor retracted and rephrased the question. In any event, Mr.

Thompson did not identify this guidance for the food industry document specifically as an exhibit at this trial, was any evidence offered by him to prove it was posted on the City's website. [ 81 ] When asked, despite the public education, did owners of establishments communicate confusion to you? He replied, “I’m not sure about confusion, but many owners and even the public asked for clarification of the requirements.” (Transcript, August 9, 2022, at p.108). [ 82 ] Mr.

Thompson testified that he could not recall exactly what was in this guidance document, but it did state that retractable roofs were not considered an open side and that this was communicated after his site visit, but he did not indicate how this was done.

He testified that the City of Toronto, on or about June 27, 2020, did not consider retractable roofs to be an open side, even if the roof was open. ( Ibid , at p.109.) [ 83 ] When he was asked on what authority they concluded that a site needed to have two open sides to be an outdoor dining area, he said that the Medical Officer of Health had the authority to give direction to the industry based on the Regulation.

The Medical Officer of Health can give directions and guidance, and that same must be adhered to. [ 84 ] Defence counsel became irate, stating that he had asked for all documents in disclosure, and that nothing had been produced by the Chief Medical Officer of Health. This was the first time he had heard about it. At first, the Prosecutor said that the redacted version of this document, which had been determined to be appropriate by her colleague on the disclosure motion, had been provided to him.

I asked the Prosecutor to confirm that the redacted document, previously given to defence counsel, was in fact the same document that had informed Mr. Thompson of the guidance given to the restaurant industry? She reviewed her notes, off the record for a few minutes, and responded to me that they are not the same document. When asked what document Mr. Thompson was referring to, she responded, “I don’t know.” Upon hearing this reply, I directed defence counsel to proceed with his question to Mr.

Thompson about his conversations with the Chief Medical Officer of Health during cross-examination. [ 85 ] Finally, the Prosecutor asked Mr. Thompson about the Regulation (Exhibit 3), s.4(2), which Mr. Thompson read out, which states ( Ibid , at p.118):

(2) The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting. [ 86 ] Mr. Thompson stated that he could rely on the directions given to him for industry to follow. [ 87 ] In cross-examination, he testified that as part of his certified public inspector training, he had received training in airborne diseases, and how they are spread.

He receives regular training. [ 88 ] He was shown a document, dated June 19, 2020, that he sent to Alok Sharma (Exhibit 7). This email states as follows, verbatim : Hi Alok Just keeping you in the loop with this one. In an effort to ensure a more consistent and objective approach in determining whether or not a patio meets the public health requirements and objective of facilitating free air flow, the following changes were made in the Guidance document: Restaurants may have previously installed patio coverings such as canopies, tents, awnings, and umbrellas, but the following conditions must met: 1.

The entire patio must remain fully open to the air on at least two (2) sides to allow adequate air circulation. 2. Except for umbrellas, the covering should be no less than a height of 3 meters/10 feet from ground level This change, which provides more flexibility, and others based on new evidence or provincial directives will be communicated to the industry through various channels. A site visit was done to the Crooked Cue located at 3056 Bloor St West on June 18, 2020. The observation determined that the

section being proposed for use is an enclosed area that does not meet the public health requirements for open dining. This decision was communicated to the owner today. His response is below. Regards Sylvanus [ 89 ] In cross-examination, Mr. Thompson was asked to define “adequate air circulation”, as noted in this email, and he replied that, “I don’t have a specific definition for adequate air circulation.” (See: Transcript, August 9, 2022, at p.123). [ 90 ] When asked if a restaurant cannot know if it meets this standard, he disagreed, and said it would meet this requirement if it had two open sides, since this would be adequate.

[ 91 ] When then asked if two open sides could include one roof and one side, he responded, “…an open roof and an open side would not have met the requirement at the time the requirement was in place." (Transcript, August 9, 2022, at p.124.) [ 92 ] Mr. Thompson testified that the City of Toronto was authorized to make requirements for industry based on available evidence.

When asked what the source was for this evidence, he responded the World Health Organization and the Center for Disease Control. [ 93 ] He said that the potential for the spread of COVID-19 increases in enclosed spaces, and adequate ventilation is required. They acted in consultation with their other health units, and determined that two open sides provided sufficient ventilation. This standard was communicated to the industry. [ 94 ] Mr.

Thompson testified that they did not pursue standards based on calculations involving cubic metres of air divided by time, as posed by defence counsel, stating that, “we wanted something easily understood.” ( Ibid , at p.129.) [ 95 ] When asked if the SkyDome, aka the Rogers Centre, with a retractable roof, would constitute an outdoor dining area, he responded that he is not familiar with it.

When asked for his view of it when the roof is completely retracted, he said he has not been there. [ 96 ] When asked if he was aware that about five days after The Crooked Cue was charged, what constituted an outdoor dining area was codified, he replied that he was aware that a retractable roof was included as an open side when fully opened. [ 97 ] When asked if the City of Toronto ever considered a quadangle courtyard, he said he did not recall looking at that scenario. [ 98 ] Mr. Thompson was asked about a document sent on June 19, 2020, which he confirmed he sent to Mike Major (Exhibit 8).

It states as follows: Hi Mike I just had a discussion with Dr Mowat and it was decided that based on further assessment of the risk a bit more flexibility can be exercised with respect to the number of open sides. Having two open sides, rather than three, should meet the desired objective of free air flow. Even with this change, the Crooked Cue would not satisfy the public health requirements. It has a retractable roof, which is commendable, but that is not believed to be sufficient to ensure free air flow. I informed Mr.

Pappas that the establishment did not meet the public health requirements based on my observation and his description of facility. Regards Sylvanus [ 99 ] When asked if Dr. Mowat was relied upon for the two sides is sufficient issue, he replied, "no" but stated that he did give input. Dr. Mowat conducted a risk assessment literature review, but this list was not provided to the City of Toronto. (Transcript, August 9, 2022, p133.) [ 100 ] Defence counsel was again irritated that no disclosure had been provided to him regarding Dr.

Mowat’s role and asserted that this prejudiced the defence. [ 101 ] When asked why Dr. Mowat was chosen, Mr. Thompson did not know the specific reason why he was chosen but stated that he was the former Chief Medical Officer of Health for the Province of Ontario. [ 102 ] When asked why the City appeared to want three open sides, but then changed it to two open sides, Mr. Thompson said that after further assessment, the less restrictive measure was adopted, and that the three open sides suggestion was never implemented. [ 103 ] Mr. Thompson testified that Dr.

Mowat was aware of the retractable roof issue, and that every guidance document the City did was given to Dr. Mowat prior to its issuance. [ 104 ] When Mr. Thompson was asked to show defence counsel any document shown to Dr. Mowat regarding retractable roofs, he replied that he was not in Dr.

Mowat's office. ( Ibid , at p.137.) [ 105 ] When asked about the charging document against The Crooked Cue, and the fact that there is no reference to “patio”, he replied that he could not recall if the word “patio” was included in the legislation. ( Ibid , at p.137.) [ 106 ] When he was referred to the Regulation (Exhibit 3),

Schedule 2, s.1.(1)(ii), while it refers to an “outdoor dining area”, he agreed that it makes no reference made to a “patio”. ( Ibid , at p.138.) [ 107 ] When he was asked if he was aware that the legislation was amended five days after The Crooked Cue was charged, to specifically allow it to be open, he replied, “no, I didn’t know that.” ( Ibid , at p.139.) [ 108 ] When asked if he agreed with defence counsel that it was not unreasonable if the space is uncovered that it could be considered to be an outdoor dining area, he responded that he did not agree, because the guidance document described an outdoor dining area. ( Ibid , at p.139.) [ 109 ] When asked if it was not unreasonable that an area without a roof could be considered to be an outdoor dining area, he agreed that this was a reasonable possibility.

The exchange between defence counsel and Mr. Thompson was telling ( Ibid at p.140):

Q. Sir, I'll suggest to you that the Crooked Cue when it's roof was open and the front window, floor to ceiling windows were opened and you feel the direct sun on your body if you were under the roof and it was sunny outside, would you agree with me? A. I've never been inside the Crooked Cue so I'm not aware of exactly what would happen if the roof was opened. [ 110 ] When directed to an email dated June 19, 2020, at 10:56 pm, he confirmed that he sent this email to Amanda Sinclair, and the email chain that followed (Exhibit 9). In this chain, he has exchanged messages with Marcia Stoltz. He testified that Ms.

Stoltz is not from Toronto Public Health. When asked why he wanted her to comment on a Toronto Public Health matter, he replied that she was at the meeting, and he wanted her thoughts based on her knowledge of The Crooked Cue. As part of this email chain, Ms. Stoltz stated in her reply, dated June 17, 2020, 5:07 pm (phone number redacted by court for privacy reasons): Subject: RE: Crooked Cue Sylvanus, If by thoughts you are looking for a personal opinion, this will be considered indoor dining space. I may live in the neighbourhood and I may have been there.

Otherwise, please keep us updated on your decision from a public health perspective. Thanks Marcia Marcia Stoltz - Manager, Vehicle for Hire 416-XXX-XXXX [ 111 ] When asked if he knew of her professional qualifications, he responded that she would have been a lawyer from the City’s Legal Department (Transcript, August 9, 2022, at .p.144). [ 112 ] As noted in this email exchange, it was apparent that Ms.

Stoltz’s personal opinion was that The Crooked Cue was an indoor dining space, even though he denied seeking her personal opinion. [ 113 ] When asked about the City of Toronto’s document, “Enclosed Public Places”, at Exhibit 4, Mr. Thompson disagreed that The Crooked Cue was a public place, since it was classified as a restaurant. [ 114 ] No Re-Direct examination was sought. DEFENDANT’S EVIDENCE: [ 115 ] Defence counsel called six witnesses, Sam Pappas, Tim Thomson, Michael O’Brien, Tracey Pappas, Daria Agius and Jennifer Stark. Mr. Sam Pappas: [ 116 ] Mr.

Sam Pappas testified that he is the owner of the defendant company, known as “The Crooked Cue.” It was established in January, 1992. His family has owned this building since 1954, when it was originally a bowling alley. It was a business originally run by his grandfather, then his father, and he took it over in 1992. Over the last 30 years, he said that the business has employed over 1500 people. [ 117 ] Mr. Pappas testified that a major renovation took place from 2015 to 2016, which cost over $2 million.

This renovation included updating, installing the retractable roof and the removable wall on the front of the premises. [ 118 ] The Crooked Cue operates seven days a week, except December 24th and 25th, and they have a quarter million people go through The Crooked Cue every year. He indicated that they have never faced a charge, nor any issues with their employees, or judgments against them. They have never needed to call the police. [ 119 ] Mr.

Pappas testified that they are “very aware of public safety, employee safety.” He added, “we try to keep up with every standard that the government comes up with and I think we’ve been pretty successful doing that over 30 years” (Transcript, October 28, 2022, at p.7). [ 120 ] Mr. Pappas testified that The Crooked Cue supports every local charity, and assists fundraisers by giving the space away for free, and offering complimentary food and soft drinks. [ 121 ] He testified that The Crooked Cue faces south, onto Bloor Street West.

It is made up of approximately 12,000 square feet, 100 feet wide across the front, and 120 feet in depth. There is a wall down the middle, so it is split evenly into 6,000 square foot sections. In both sections, the front of the building is mostly restaurant and bar seating, including food consumption and watching sports. The back half of the building is made up of pool tables, and occasionally some ping pong. It has a retractable roof on each side which is a 20 by 50 foot skylight that fully retracts.

The front windows on each side facing Bloor Street West have an opening of almost 11 feet by 10 feet. [ 122 ] There are washrooms on each side of The Crooked Cue. On the east side, they are located in the northeast corner, and are unisex. On the west side, they are divided between male and female washrooms, and are found on the wall, in the middle of the premises. [ 123 ] The kitchen of The Crooked Cue is on the west side at the very back of the room. [ 124 ] The retractable roof is a glass structure, which he described as being “a bunch of skylights” that are put together in an aluminium

train, and move on a sealed rail. When Mr. Pappas turns on the motor, within about 5 minutes, it can travel back 50 feet, since the total roof is about 120 feet long. It comes to rest around the 100 foot mark, when totally retracted. It is about 20 feet wide. When not retracted, Mr. Pappas said that it just sits on top of the roof. [ 125 ] The front windows facing Bloor Street West are actually patio doors, and the maximum size allowable. They are 11 feet by 10 feet high, so the opening is 120 square feet. The manufacturer from whom he bought them referred to them as patio doors. [ 126 ] Mr.

Pappas testified that on the day The Crooked Cue was charged, June 27, 2020, the patrons were not permitted to go past any area where the roof did not retract. They were only permitted to go back there to use the washroom, and they did not permit them to use the unisex bathroom because it was further back in a smaller space. Since they were operating at a low capacity, they only used the male and female bathrooms in order to separate people. Only one person was permitted in a bathroom at a time. [ 127 ] The Crooked Cue has two bars.

There is a bar on the east side, located against the middle wall, with one bartender. The bar on the west side had a larger island type of bar. Only one employee was working each bar, again to limit contact. [ 128 ] The seats were removed from both bar areas, and the patrons were not permitted to stand near them, only serving staff could approach them. [ 129 ] Because The Crooked Cue is on the second floor, there is a flight of stairs to climb from Bloor Street West, with a landing area, and then another smaller set of stairs where the hostess and reception stands are.

This was also true in June, 2020. [ 130 ] Mr. Pappas testified that all businesses were shut down from March 16 to June 25, 2020, by provincial decree, because of COVID- 19. [ 131 ] In early June, Mr. Pappas said that with the numbers dropping, they began receiving communication from the City of Toronto and the Province of Ontario that a re-opening was anticipated for outdoor dining and what to do to prepare. As a result, he testified that they began to prepare The Crooked Cue for reopening. [ 132 ] Mr.

Pappas identified a document from the City of Toronto, dated June 5, 2020 (Exhibit 11), entitled, “City of Toronto advises two large business sectors, restaurants and personal service settings - to prepare for safe reopening”. [ 133 ] Mr. Pappas testified that they reviewed every document in order to reopen safely, because this was their livelihood, and they employed 55 people and needed to generate income. [ 134 ] Mr.

Pappas indicated that Exhibit 11 advised that the City staff would be communicating with impacted business owners over the next week, either individually or through their local Business Improvement Associations (“BIAs”). He further indicated that they started communicating right away with Lianna Misador, from the Kingsway BIA. [ 135 ] Mr.

Pappas read from Exhibit 11, which stated: Business owners are advised to begin preparing for reopening, but are not permitted to begin operating until the revised order under the Emergency Management and Civil Protection Act is announced by the Government of Ontario and comes into effect. [ 136 ] Mr. Pappas understood that the criteria to reopen given by the provincial government was that it had to be outdoor dining in or adjacent of a place of business. No definition of same was provided, however. [ 137 ] Mr.

Pappas testified that they did their own research, and formed the belief that what was intended by it was that the public would breathe outdoor air and not be in an enclosed space where the air is recirculated. [ 138 ] Mr. Pappas was referred to Exhibit 4, a document from the City of Toronto, entitled, “COVID-19…”, and describes the steps to reopening. Under the paragraph regarding enclosed public places, it states: Smoking and vaping is not permitted in enclosed public places.

An “enclosed public place” means the inside of any place, building, structure or vehicle, or any part of them that is covered by a roof, and where the public is ordinarily invited or has access regardless of where a fee is charged for entry. [ 139 ] Mr. Pappas agreed that The Crooked Cue is a place where the public is ordinarily invited or has access.

The only restrictions to access are age-based or showing visible signs of intoxication. [ 140 ] In June of 2020, the roof would have been open all day, and only closed if there was inclement weather. [ 141 ] During this time, if the weather caused them to close the roof, The Crooked Cue would close and not allow in patrons. Mr.

Pappas testified that when the roof was closed, he considered it to be an indoor space, but when the roof and windows were open, he considered it to be an outdoor space. [ 142 ] If there were patrons inside and the weather changed, they would close the roof, stop service, hand everyone their bills, and ask them to leave in a timely manner. He relied on guidelines from the City that the patrons could finish what they had before they had to leave. [ 143 ] Mr. Pappas testified that before they opened, since they could not get a full definition from the City, and had conflicting viewpoints.

He further testified that on the first day of the reopening, he and his wife toured some patios, including "The Keg" at Sherway Gardens. It has an open wall in the front and a smaller open wall on the side, and he estimates that their patio is about 4000 to 5000 square feet. He said it has a fixed roof. It was deemed to be an outdoor space. He identified two photographs he took of The Keg at Sherway Gardens after this visit and in preparation of this trial, which were made Exhibits 12A and 12B.

He indicated that in terms of the structure, they are virtually identical to how it appeared in June, 2020, and that is focus was the roof overhang and the opening.

[ 144 ] He formed the opinion that The Crooked Cue had “much more free airflow” than The Keg at Sherway Gardens (Transcript, October 28, 2022, at p.24). [ 145 ] Mr. Pappas testified that his wife, Tracey Pappas, who is the co-owner, contacted their BIA, which informed them that they could open the patio portion in front at 30 percent capacity. [ 146 ] Mr. Pappas testified that Ms. Lianna Misador from the Kingway Business Improvement Association ("BIA") sent them an email, dated June 16, 2020, in this regard. It was read out to Mr.

Pappas, as follows (Exhibit 7): Hello Sam and Tracy [sic] I hope all is well - we have a walk through with the City today and have voiced your concern… You can open up both your patio upstairs at 30% ( patio side), 30% is better than nothing according to City (urban planning), no need to register for Cafeto I will keep you both posted on the official opening day And if you’re not using the downstairs can you please permit Romi's, Azarias and Sempre to use it - we will make sure there’s enough room for your entrance? [ 147 ] Mr. Pappas recalled receiving this email from Ms. Misador.

He testified that for outdoor dining, the stipulation at the time was that the entire patio should be open and tables should be at least six feet apart. He added that the reference to 30 percent was a reference to that percentage of his maximum allowable people, which would have been about 80 patrons per side. The way they set it up, they were nowhere near that capacity. [ 148 ] Mr. Pappas stressed that they were very careful to ensure the safety of their patrons and employees. The maximum number of patrons they had on each side was 50, in 3000 square feet per side.

He voluntarily restricted the capacity to less than what he believed the provincial government permitted. They also followed the best protocols, including using timers to wipe down tables every 15 minutes. They also controlled how many people came in and out of the premises by having walkie- talkies at the top and bottom of the stairwell. They would only allow one group up at a time, and did not permit different groups to pass on the staircase. [ 149 ] When the officer came in who charged him, Mr. Bazger, Mr.

Pappas testified that he was not wearing a mask, did not use the hand sanitizer, touched things, and touched his own face. Mr. Pappas took a video of this incident, and compared it to his staff, who were masked. He added that the two uniformed police officers and two by-law officers who entered with him were also unmasked. [ 150 ] Mr.

Pappas testified that The Crooked Cue had zero COVID-19 transmissions for over two years, and that the first one they had related to the Omnicron variant. [ 151 ] When asked in chief if he ever asked the City of Toronto for any assistance in determining what was an outdoor dining area in or adjacent to a place of business, he replied that yes he had, and he had received conflicting reports. [ 152 ] First, he saw John Tory, the Mayor, publicly state that the City would assist businesses. [ 153 ] Then, when he heard rumours that he would be challenged, he contacted the City, but stated (Transcript, October 28, 2022, at p. 42): I basically – what happened was, I started contacting people because I’d heard rumours that I was going to get challenged.

And so, I did contact the City, nobody got back to me for quite a bit of time. Then just before the reopening happened, Mr. Thompson, I guess, came out and did a look see, didn’t inform me that he was coming, just stood outside the front of the building, deemed that we, in his mind, we didn’t meet the criteria at the time and then he sent me a note. Of course, it upset me greatly and I challenged it and we had a conversation... [ 154 ] Mr. Pappas testified that he is certain that Mr. Thompson has never been inside The Crooked Cue. [ 155 ] Mr.

Pappas felt very frustrated, and believed that the final answer lied with Licensing and Standards. As he stated (Transcript October 28, 2022, at p. 44): …I was told that this this was Mr. Thompson’s opinion, but the final answer lied with licensing and standards. They were the ones who were going to make the final determination whether I could open or not. And when I tried to get a hold of people from licensing and standards, nobody got back to me. So, the only thing I had was from Mr. Thompson – and I was told that that was his opinion, but it wasn’t the final answer. [ 156 ] Mr.

Pappas is uncertain about the involvement of Dr. de Villa in this matter, but said that her name did come up in the redacted emails in this case. [ 157 ] In chief, Mr. Pappas testified that the City staff never came by when the roof was open and the front patio doors were open to measure the airflow. The first person to come in from the City was Mr. Bazger. Mr. Pappas testified that Mr. Bazger never measured the overhang areas versus the area under the open roof. He estimates this overhang is 7 or 8 feet.

When the retractable roof is fully open, he testified that the air in the premises is replaced in “the entire place” (Transcript October 28, 2022, at p. 47). He added that it impacts on the temperature and exposes patrons to the elements, even under the overhang. He characterizes their focus on the overhang as a grasping at straws to justify this prosecution. [ 158 ] By way of comparison, he testified that the roof at The Keg at Sherway Gardens (as seen in Exhibits 12A and 11B) is a complete roof. [ 159 ] At The Crooked Cue, Mr.

Pappas testified that they removed all the lounge furniture, and had no more than six chairs per table. He

also ensured that everyone was at least six feet apart, and often 10 to 12 feet apart. They also put up patio umbrellas to deal with the sunlight on the patrons when the roof was retracted. [ 160 ] Mr. Pappas testified that when the province permitted the reopening of outdoor dining areas, there was no reference to the term “patio” in the regulation. [ 161 ] Mr. Pappas testified that the Liquor Control Board did not deem The Crooked Cue to be a patio, because the space had already been licensed before they installed the retractable roof.

When it was installed, he contacted the Liquor Control Board which advised him that he did not need to change his licence because he had not changed the number of seats. Most restaurants that open a patio in the summer time have added extra seats. Since his capacity and configurations did not change, this requirement did not apply. [ 162 ] Mr.

Pappas described his business as being “very unique”, and testified that the City should have taken some time and care to assess it on its merits, rather than assessing it from the street without entering the premises. [ 163 ] Defence counsel referred him to the email dated June 19, 2020, from Mr. Thompson to Mike Major, Melissa Simone, Elizabeth Glibbery and David Mowat, but forgot which exhibit it was (Exhibit 8). In this email, it appears that David Mowat was a doctor and consulted by the City, although he has not been produced by the City as a witness. He asked Mr.

Pappas if he knew David Mowat or if he has ever been at The Crooked Cue with the roof open or closed? Mr. Pappas replied, “no”. [ 164 ] Defence counsel continued to read from an unidentified email from Mr. Thompson, which referred to a “guidance document”, as follows: Good morning Mike, in an effort to ensure more consistent, objective approach in determining whether or not the patio meets public health requirements, an objective of facilitating free airflow, the following changes were made in the guidance document. [ 165 ] Mr.

Pappas testified that he never received this guidance document from the City of Toronto regarding what constituted an outdoor dining area, however. [ 166 ] This same email further states: Restaurants may have previously installed patio covering such as canopies, tents, awnings and umbrellas, but these coverings must meet the following conditions: one, the patio must remain fully open to the air on at least three sides to allow for adequate air circulation. [ 167 ] However, Mr.

Thompson sent another email, dated June 19, 2020, 1:01 pm, to Alok Sharma (Exhibit 7), which he read out and it stated: Hi Alok In an effort to be more consistent, an objective approach determining whether or not a patio meets the public health requirements and objectives facilitating free air flow.

The following changes were made in the guidance document…restaurants may have previously installed patio coverings such as canopies, tents, awnings, umbrellas, but the following conditions must be met…the entire patio must remain fully open to the air on at least two sides …to allow for adequate air circulation, except for umbrellas and coverings should be no less than the height of three metres, ten feet around… [ 168 ] Mr. Pappas testified that he was unaware of these discussions. [ 169 ] This same email referred to a site visit at The Crooked Cue at 3056 Bloor Street West on June 18, 2020, but Mr.

Pappas stated that no City official came into The Crooked Cue on this date. [ 170 ] He was asked about Mr. Thompson's testimony that he saw this premises from the street, when the patio doors were closed and the roof was closed. Mr. Pappas testified that he had invited him to return when it was open but he refused. Mr. Pappas said that he was at the end of his rope. Mr. Pappas believed he was in compliance with the law because the provincial requirements made no reference to a patio but stated dining in or adjacent and “that’s exactly what we were” (Transcript, October 28, 2022, at p.57). [ 171 ] Mr.

Pappas had received competing information from the Kingsway BIA, which advised him that they had been told by the City he could reopen, versus Mr. Thompson’s “point of view” which he refused to back up or return, and then silence from Mike Major or anyone else at Licensing and Standards. When asked in chief if he believed that he was contravening the provincial legislation when he reopened, he replied ( ibid , at p.59): No. 100 percent, no. And the reason I say this is the first day people were allowed to open, I didn’t open.

And the reason for that is I had to go see what they were allowing before I took that step. And when I saw what they were allowing versus what I had, any reasonable person, reasonable, would conclude that I had more airflow than many of the establishments they were allowing to open. I was not treated with any kind of respect or dignity, nobody even came in to look at the place not one person. [ 172 ] Mr. Pappas clearly believes that his business complied with the requirement, by being an outdoor dining area within a place of business. [ 173 ] Prior to being charged, Mr. Pappas testified that Mr.

Bazger, two by-law officers and two police officers did an inspection and that his staff believed that everything was good and that they were happy. They took pictures of his liquor licence, and observed their protocols and left without charging them. Mr. Pappas believes, based on Mr. Bazger’s testimony, that he only charged them after consulting with his superior. [ 174 ] Mr. Pappas said that his staff advised him to attend around 9 or 10 pm on June 27, 2020, and he met Mr. Bazger outside of the premises along with someone from public health.

He was advised that he was being charged, but was not given any reasons by Mr.

Bazger. [ 175 ] Mr. Pappas testified that he was very upset, and went back upstairs, and texted someone he knows to obtain Premier Ford’s telephone number. He spoke with Premier Ford on the phone within about five minutes. On June 28, 2022, he also spoke to Dr. de Villa, and had a further conversation with Premier Ford. He believed that the legislation was amended on Friday, July 3, 2022 to include establishments with retractable roofs as outdoor dining areas. [ 176 ] Mr. Pappas testified as follows (Transcript, October 28, 2022, at p.75): Yeah.

My opinion was that the City had misinterpreted the legislation in the first place and that we had run into a dead end and therefore the Province stepped in and clarified it. [ 177 ] Mr. Pappas testified that he was never advised as to who was responsible for interpreting what is an outdoor dining area. He was also never advised as to who would decide which businesses can open for either indoor or outdoor dining. [ 178 ] Mr.

Pappas said that the amended legislation came out at 9 am on the Friday morning, and he informed the City that he was going to reopen at 4 pm that day “in any event” ( Ibid , at p.76). [ 179 ] During his cross-examination, Mr. Pappas confirmed that as the owner, he took steps prior to June 27, 2020 to find out if he could re-open, including asking the City of Toronto for information. As a result, he received some documents from the City, and he also contacted the local BIA. Later in his cross-examination, he confirmed that it is the Kingsway BIA. [ 180 ] Mr.

Pappas testified that the BIA communicates with the City, and acts as “a liaison”. He confirmed that it is not overseen by a government office, but has its own board of management (Transcript, November 17, 2022, at p. 4). [ 181 ] When asked if the BIA was a government office, he stated that he is not certain how it is viewed. He added that the BIA receives allocated tax money, and that this tax is involuntary. He believes that they have access to City staff that a regular businessman such as himself would not have. [ 182 ] Mr.

Pappas agreed with the Prosecutor that the BIA helps the flow of communication between business and government, and he added, “policy, that sort of thing.” He also conceded that the BIA does not make the law nor does it interpret the law ( Ibid , at p.3). [ 183 ] Mr. Pappas agreed with the prosecutor that the BIA did a walk-through of his business on June 16, 2020 (Exhibit 6). The BIA spoke to the City on his behalf, and they told him that the City had approved a 30 percent capacity to open. [ 184 ] Mr. Pappas confirmed that Lianna Misador and Mike Major both work for the Kingway BIA.

He was asked about an email from Mr. Major dated June 16, 2020 (Exhibit 7), which stated, “I hope all is well. We have a walkthrough with the City today and have voiced your concern.” He confirmed that he and his wife were sent a further email from Mr. Major dated June 17, 2020 (Exhibit 13), stating, “I spoke to MLS and they are aware of your specific situation and are trying to make it work, will let you know when I hear back more.” [ 185 ] Mr.

Pappas was shown a 4-page email chain dated June 19, 2020 from Elizabeth Glibbery, with a focus on the email from Sylvanus Thompson to a number of City of Toronto officials, dated June 16, 2020 (Exhibit 14), which stated in part (Transcript, November 17, 2022, at pp.15-16): All of the benefits are likely to be lost were structures such as large canopies restrict free airflow. Some establishments, such as the Crooked Cue may have to be treated on a case by case basis to determine if they can satisfy the intent and purpose of this requirement. A site visit may be part of such review. [ 186 ] While Mr.

Pappas acknowledged that the City was taking extra steps to determine if his business was qualified to reopen based on this email, he stated ( Ibid , at p. 18): …there was no communication to me that any of this was happening. Zero. The communication was poor at best. [ 187 ] He admitted that he knew that Lianna of the Kingsway BIA had communicated his concerns to Mike Major, and that the City was looking at it on a case by case basis. He also testified that he received a call from Sylvanus Thompson on June 18, 2020, in which he was told that The Crooked Cue did not qualify. Mr. Pappas was shocked that Mr.

Thompson had made this determination without ever entering The Crooked Cue to see how they had free and sufficient airflow. He believed that Mr. Thompson had been prejudiced by an email that he had received from Marcia Stoltz that indicated that she did not believe they met the criteria. [ 188 ] Mr. Pappas agreed that he responded in an email back dated June 19, 2020, and that while he did not agree, he did understand what Mr.

Thompson had indicated. [ 189 ] When asked in cross-examination if this was the last official communication he received from the City of its position before reopening, he responded that this was the last communication he received in writing, but that Mr. Thompson had advised him it was up to Licensing and Standards. Mr. Pappas said that Mr. Thompson did not have that authority as far as he was concerned (Transcript, November 17, 2022, at p. 20). [ 190 ] Mr. Pappas was of the belief that while Mr.

Thompson did not think The Crooked Cue qualified, Licensing and Standards could make a different determination, and that this happens all the time. He was very angry that Mr. Thompson, “just showed up and left”. He maintains that the City had made a mistake in reaching this determination without Mr. Thompson walking through the premises ( Ibid , at p. 21). [ 191 ] Mr. Pappas stressed that in 30 years of business, his establishment has not had any violations, and that they don’t break rules or behave shabbily.

They did not reopen right away, they put the best protocols in place, and they have had zero transmissions of COVID-

19. [ 192 ] Mr. Pappas read the provincial legislation and did his due diligence, and no one from the City told him he could not open. He had been told by one person that they did not meet the standard, but he had never been told he could not open. He is upset that the City did not give him a warning at least as a courtesy after all his years in business. [ 193 ] When asked about his testimony about conflicting opinions, he responded ( Ibid , at p. 23): No. I had one from the BIA, that said they had done a walk through with the City and determined it was okay to open. Then I had Mr.

Thompson giving me a different opinion, and I had nothing from anybody else. [ 194 ] He agreed that he had not heard back from Mr. Major again prior to reopening. [ 195 ] Mr. Pappas was strident in his testimony that Mr. Thompson had given him his opinion that The Crooked Cue did not meet the requirements because it did not have two open walls, but that the City’s requirements were, in his view, “changing by the minute.

It was three walls and then two walls” ( Ibid , at p.24). [ 196 ] He agreed that his response to the City included the phrase, “I’m going broke”, when asked if financial pressures were also a factor in his decision to reopen. [ 197 ] He reiterated his belief that it was not up to the Health department of the City, but up to Licensing and Standards. He acknowledged that he was charged under the Emergency Measures Civil Protections Act and not under the Reopening Act . However, he stated ( ibid , at p.27): But I was told if you were going to reopen, it was up to licensing and standards. That’s what I was told.

Whether that’s correct or incorrect, that’s what I was informed. [ 198 ] Mr. Pappas testified that The Crooked Cue did not require a patio licence from the Liquor Licence Board after its renovations which included the retractable roof, since the space involved remained the same. He stated that he made this call to them around the time of these renovations. [ 199 ] Mr. Pappas attended The Keg and Joey’s both at Sherway Gardens, and was familiar with their layouts. He went again in June 2020 prior to re-opening.

He stated that this Keg has two walls, one of which is fully open and the other is partially opened. [ 200 ] A google map (Exhibit 15) was shown to Mr. Pappas of The Keg at Sherway Gardens, taken October 2020. He confirmed that he has attended this place at least half a dozen times. He described one wall that is fully open. He also described a second wall, which he estimates is open about four or five feet, but it covers the length. He added that the entire bar area is covered by a roof, which is 50 to 60 feet away from any of these openings, and yet it is still considered to be an outdoor space.

It also has a roof that is potentially retractable, although Mr. Pappas has never seen it open. [ 201 ] When asked about Joey’s at Sherway Gardens, he was uncertain if it has a retractable roof. He did attend at this location on June 25, 2020. It has large windows that drop down. He concluded that the Crooked Cue had more airflow than either of these establishments. [ 202 ] Mr. Pappas confirmed in cross-examination that he did not speak with the owners of these other two establishments nor did he call 311 or MLS or Toronto Public Health, to discuss the discrepancies he had noted.

Since they were operating and they were part of big chain restaurants, he believed that he could open too. He knows that Joey’s was subsequently charged and convicted, but that The Keg was permitted to operate. He is of the belief that Joey’s pled guilty, but is not certain.

He did not try to call the City to ask, since he said that to do so would have been “fruitless” (Transcript, November 17, 2022, at p. 45). [ 203 ] The Prosecutor was permitted to enter evidence of the conviction of Joey's generated in an affidavit of a municipal law clerk to prove that Joey’s was convicted of the same charge (Exhibit 16), but there is no indication whether it went to trial or if their matter was pled out. [ 204 ] Mr. Pappas testified in cross-examination that when he contacted Dr. de Villa after the charge had been laid, that she would not be able to assist him, and said it was out of her hands.

She advised him that it was up to “standards and enforcement”, and that if the City was not willing to budge, that he had to have the Province change it, because she had nothing to do with enforcement. While this statement was clearly hearsay, I permitted it to go into the record, since the prosecutor specifically sought this answer ( Ibid , at p.48). [ 205 ] During cross-examination, he was asked about his testimony that he did not receive any reopening guidelines from the City. In particular, he was shown Exhibit 11, which includes “guidelines for restaurants” and a clickable link.

In response, he said that the City did not provide him with this document, that they had to go find it themselves. He indicated that his wife ensured they had all the documents and “protocols”. He also confirmed that he received a call from Sylvanus Thompson, advising him of the City’s position. [ 206 ] In Re-Direct, Mr. Pappas testified that there were only two authorities on whom he relied to determine if The Crooked Cue met the definition of an outdoor dining area in or adjacent to a place of business, being Mr. Thompson and Mr. Major.

As he put it, “no other authorities contacted me…”( ibid , at p. 57). [ 207 ] He had been told that The Crooked Cue was in compliance with the City by the BIA, but then he was charged. [ 208 ] He confirmed that he went to The Keg and to Joey’s at Sherway Gardens on June 25, 2020, the date of the reopening. He testified that he assumed, perhaps incorrectly, that being large corporations, they would have had more administrative and legal guidance and that, “their due diligence would have been done” ( ibid , at p. 58).

[ 209 ] During Re-Direct, Mr. Pappas described his thoughts at the time as follows ( ibid , at pp. 58 to 59): You know, because I had been – my opinion just had been left high and dry by the City. Nobody had gotten back to me after my last conversation with Mike Major, which was a week before, and I was just left hanging. A – a very cursory walk by, by Mr. Thompson, coming in the morning when the Cue wasn’t even open, establishing the criteria that he thought that we didn’t meet. I just – I – I just – I don’t know, I felt very alone and very up in the air.

I knew we had met the requirements of the free and flowing air, but yet it seemed like nobody cared or – or it was a political hot potato or something. I just couldn’t understand what was happening. ---- I – I was never given any guidance on what free and – free airflow was or any establishment or – or any reason about – or any – sorry, any criteria of the reasoning they were using. You just basically had to be an outdoor space in the Provincial statute and they just basically did not give me any – any criteria how to meet that other than two open sides, which, you know, I – I figured we had two open sides.

We had a front and we had a – a ceiling which was two open sides. [ 210 ] He was adamant in his testimony that he was never given any definition of what constituted a side, nor did the City provide him with any guidance as to what constituted an outdoor dining area in a place of business. [ 211 ] After his conversation with Dr. de Villa, he contacted the Premier again, on June 28, 2020. The provincial legislation was amended on July 3, 2020, to include retractable roofs. [ 212 ] In Re-Direct, Mr.

Suboch raised the issue of whether or not The Keg at Sherway Gardens has a retractable roof, in reference to Exhibit 12B, and Mr. Pappas’s testimony during cross-examination. He argued that the City never proved that the roof at The Keg is retractable, and that he has information from its manager that in fact, it does not retract. During Re-Direct, Mr. Pappas testified that he has been at the Keg several times, and never seen this roof retracted, and that he has no idea if it is a retractable roof or not. [ 213 ] Finally, Mr. Suboch showed Mr.

Pappas a print-out of the The Keg at Sherway Gardens website (Exhibit 17). Mr. Pappas read it out (Transcript, November 17, 2022, at p.71): ...location has a spacious covered roof, outdoor patio to enjoy. Ms. Daria Agius: [ 214 ] In order to further deal with the issue of whether or not The Keg at Sherway Gardens has a retractable roof, I permitted defence counsel to call a patron of that establishment, Daria Agius. [ 215 ] Ms.

Agius testified under oath that she is a Risk Manager with the LCBO, who resides in Mississauga, Ontario. [ 216 ] She stated that she is a frequent patron of The Keg at Sherway Gardens, and she normally attends its patio area, which is on two floors. When asked if it has a retractable roof, she stated that it does not. [ 217 ] Ms. Kym did not have any questions for this witness, and she was excused. Mr. Tim Thomson: [ 218 ] Mr. Tim Thomson is 57-years old and he testified that he is a lifetime resident of Etobicoke. Mr. Thomson works as a managing director of a major fixed income bond broker.

He is familiar with The Crooked Cue as a patron and has been since he was in high school. He recalls the installation of the retractable roof in 2015 and what he termed, “the big front window…the reclining window”, as well. He attends at The Crooked Cue after playing hockey once per week, and believes that he has attended at this venue about 30 times this year (Transcript, October 28, 2022 at p.83) [ 219 ] Mr.

Thomson testified that before the renovations, he would describe The Crooked Cue as being an indoor dining area, but when the roof and the patio doors are open, he believes it is an outdoor space, “100 percent absolutely”. He has sat inside the Crooked Cue with t-shirts and sandals and also with a toque and winter jacket on when the premises is fully open ( Ibid , at p. 84). [ 220 ] Mr. Thomson was at The Crooked Cue on the night it was charged, in the east side of the premises, sitting at a harvest table. He said that the roof was open, as well as the patio doors.

He described it as “eating in an outdoor establishment, on the patio” ( ibid , at p. 86). [ 221 ] Mr. Thomson recalls that evening, and said that the enforcement officers and police officers were unmasked. He saw them enter the establishment, talk to management, and then they left, and he described their approach as being, “very minimal” ( Ibid , at p.88). [ 222 ] Mr. Thompson was surprised by this, since when he entered the establishment, he had to go through the lower entrance at the bottom of the stairs, and go through a number of protocols, with a mask and advise of his vaccinations.

While he was in the restaurant, he had to wear his mask when he wasn’t eating or drinking, and put it back on when he left his table. [ 223 ] Once the reopening took place, Mr. Thomson went to a few other establishments as well, describing himself as, “a pretty social guy” who likes to get out.

After trying a few places, he “settled on the Cue because I thought that was – for me, the most comfortable and the safest place to go as – you know, it’s very spread out, so you’re not close to anybody…” He added that they followed all the rules, and everyone wore their masks and had cleaning supplies available for handwashing ( Ibid , at p.88). [ 224 ] During COVID-19, Mr. Thomson lived with his wife, their four boys ages 25 to 17 years old, in-laws in the basement and his sister-in-law who assists with eldercare. At this time, his in-laws were between 80 and 85 years old.

[ 225 ] During cross-examination, Mr. Thomson confirmed that he is only a patron of The Crooked Cue, and he is not a directing mind nor in management with this business. He also confirmed that he does not have any expertise in emergency legislation. [ 226 ] He confirmed that prior to entering The Crooked Cue, the staff checked his vaccine status, but when the Prosecutor pointed out that vaccines were not available yet. He stated that he was speaking in generalities, and that the staff asked for protocols to be covered before permitting entry, which included temperature testing. Mr. Michael O’Brien: [ 227 ] Mr.

Michael O’Brien is a 57-year old man who has resided in Etobicoke since 1979. He works as an in-house counsel at a major university, responsible for its labour relations. [ 228 ] He has been going to The Crooked Cue since he was in high school, when it was "Pappas Billiards", and has been going there through what he termed its “evolution”, to The Crooked Cue. He is aware of the major renovation that took place in 2015. He recalled that it was done in two parts, because of the adjoining rooms.

He testified that the east side was renovated first, and the roof was opened up and a glass-like arboretum roof that retracts was added. On the south side, facing Bloor Street, he described a glass wall. When asked if it was fair to call it patio doors, he responded that it was, “ a larger version of patio door because they’re bifold…opens the whole wall up” (Transcript, October 28, 2022, at pp. 103-104). [ 229 ] Before the retractable roof and these doors were installed, he described The Crooked Cue as being, “an enclosed restaurant indoor”.

He added that when he attends at The Crooked Cue but the roof and patio doors are closed, Mr. O’Brien testified that it is “akin to indoor dining” but added that it was very bright ( Ibid , at p.104). [ 230 ] When he attends and the roof is fully retracted and the patio doors are fully open, he testified that it is “a fully exposed outdoor dining experience” ( Ibid , at p.105). [ 231 ] Mr.

O’Brien testified that the retractable roofs on the east and west side are glass, and that there is a small portion of roof from both sides which are covered. [ 232 ] When he sits under the open roof, the opening is in the centre of the room, and he feels that he is outside. He has had sufficient sun exposure with the roof open to get a sunburn. He has also been at The Crooked Cue when the roof was closed, due to rain. [ 233 ] During cross-examination, Mr.

O’Brien confirmed that he is a regular patron, and has no other connection with this business. [ 234 ] He cannot recall specifically if he was there on the day that The Crooked Cue was charged, but has been present when by-law officers have attended. [ 235 ] He also confirmed that he does not work or interact with drafting legislation for emergencies, although he has done work related to other legislative drafting. [ 236 ] Mr.

O’Brien also confirmed that when he compared The Crooked Cue to other similar establishments and found that their airflow was also similar, this was his opinion and he did not take any scientific measurements. Mrs. Tracey Pappas: [ 237 ] Mrs. Tracey Pappas testified that she is married to Sam Pappas, and that she is the co-owner of The Crooked Cue. She has been involved in its management since it opened on January 31, 1992. [ 238 ] Since their business opened, she testified that The Crooked Cue has not been charged with any other offence whether it be criminal, provincial or municipal.

They received one warning about 15 years ago from a health inspector regarding an issue with the foil not being properly wrapped in some of the chaffing dishes, and they complied and never did that again. [ 239 ] Mrs. Pappas testified that during the COVID-19 pandemic, The Crooked Cue was shut down completely except for take-out food. The first shut-down was on March 17, 2020.

She said that they watched the news diligently to determine the status of any re-openings, and she heard “rumblings” of a possible re-opening in June, 2020 on various news programs. [ 240 ] She began her own research to protect the health and safety of her staff and her customers. She said that their business was built completely on their reputation. She stated that, “we were taking all of our responsibilities with the utmost seriousness” (Transcript, November 17, 2022, at p. 80). [ 241 ] She said there was talk of reopening outdoor areas, and she was very hopeful.

Their renovations, done in 2015 and 2016 included two retractable roof tops, and cost about $1.5 million. [ 242 ] She was asked in chief whether or not The Crooked Cue is an outdoor dining area when the roof is fully open and the front windows are fully open. She replied, “I believe with my whole heart that it’s an outdoor dining area” ( Ibid , at p.81). [ 243 ] She is only aware of one other restaurant in the Greater Toronto Area that has a retractable roof, and it is dow

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