2248870 Alberta Ltd. Operating as “Stacey’s Happy Place” Applicant - v. –, 2023 ABKB 368

Court of King’s Bench of Alberta Citation: 2248870 Alberta Ltd (Stacey’s Happy Place) v Alberta Health Services 2023 ABKB 368 Date: 20230619 Docket: 2210 00026 Registry: Red Deer Between: 2248870 Alberta Ltd. Operating as “Stacey’s Happy Place” Applicant - and – Alberta Health Services Respondent - and - Public Health Appeal Board Respondent _______________________________________________________ Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I.

Introduction [ 1 ] This is a judicial review application brought by the Appellant, 2248870 Alberta Ltd., operating as “Stacey’s Happy Place” (the “Appellant”) pursuant to an Originating Notice filed on January 6, 2022, in respect of a decision (Appeal 07-2021) by the Public Health Appeal Board (the “Board”) rendered on July 6, 2021 (the “Decision”).

The Decision dismissed the Appellant’s appeal of enforcement measures taken by Alberta Health Services (“AHS”) in respect of various orders issued by the provincial Chief Medical Officer of Health for Alberta (“CMOH”) to address the Covid-19 pandemic. [ 2 ] The measures taken by AHS in respect of which the Appellant seeks review are: (

a) An order issued by an executive officer employed by AHS dated April 12, 2021 (the “Order”);

(

b) A Food Handling Permit Notice of Suspension issued on April 15, 2021 by an AHS director (the “Notice of Suspension”) pursuant to

section 11 (

b) of the Food Regulation , Alta Reg 31/2006 (the “ Regulation ”); and (

c) A Notice of Defined Closure issued by an AHS executive officer dated April 26, 2021 (the “Notice of Closure Order”) (Collectively, the Order, the Notice of Suspension and the Notice of Closure Order are referred to as the “AHS Orders”). [ 3 ] On March 18, 2022, AHS filed a Cross-Application to strike the Originating Notice on the grounds that it: (1) constitutes an abuse of process as the issues sought to be reviewed are moot; (2) was filed outside of the 6-month limitation period; and (3) failed to name the Board as a Respondent.

AHS’ third ground has been resolved as the Board has now been named as a Respondent to this application: 2248870 Alberta Ltd operating as “Stacey’s Happy Place” v AHS , 2023 ABKB at para 24 (unpublished). II. Background [ 4 ] Since July 2020, the Appellant has operated as a small family-run business in Eckville, Alberta, selling books, pre-packaged snacks (chips) and beverages (coffee). Its owners are Collin and Stacey Pacholek (the “Owners”) who are assisted in the running of the business by their daughters.

Pursuant to the terms of a Food Handling Permit (the “Permit”) issued by AHS, the Appellant is permitted to sell beverages and snacks. [ 5 ] The facts summarized below are taken from the documentary record before the Board including the transcripts of the hearing conducted on May 18 and 21, and June 4, 2021 (the “Hearing”). Ms. Pacholek testified on behalf of the Appellant. Catherine Bulek- Lachman, a public health inspector employed by AHS (the “Inspector”), and her manager, Garth Gosselin (the “Manager”), testified on behalf of AHS. Additional evidence includes Affidavits sworn by Ms.

Mia Neudorf, a paralegal employed by AHS on February 8, 2022, March 18, 2022, and April 24, 2023, and by the Manager on May 29, 2023. [ 6 ] Pursuant to section 29(2.1) of the Public Health Act , RSA 2000, c P-37 (the “ Act ”), the CMOH is empowered to issue orders (“CMOH Orders”) and may take whatever other steps are, in its opinion, necessary to lessen the impact of a public health emergency.

Section 59(1) of the Act grants an executive officer (the Inspector and Manager are both executive officers as defined in the Act ) the power to inspect a public place to determine “the presence of a nuisance or determining whether this Act and the regulations are being complied with”. Section 1(1) (ee) of the Act defines a nuisance as a “condition that is or that might become injurious or dangerous to the public health, or that might hinder in any manner the prevention or suppression of disease”. Section 62(1) of the Act stipulates that upon having conducted an inspection pursuant to

section 59 , an executive officer who has reasonable and probable grounds to believe that a nuisance exists in or on a public place or private place that was the subject of the inspection or that the place or the owner of it or any other persons is in contravention of the Act or the regulations may issue a written order. A. The January Inspections [ 7 ] The Appellant came to AHS’ attention because of a public complaint received in January 2021 regarding the Appellant’s non-observance of Covid-related measures.

At this time, the following CMOH Orders were in place: • CMOH Order 25-2020: effective June 12, 2020, required businesses to implement practices to minimize the risk of transmission or infection among persons working at or attending the business and to ensure people working at businesses maintain high levels of sanitation and personal hygiene (section 4). • CMOH Order 26-2020: effective June 26, 2020, required that every person attending an indoor or outdoor location maintain a minimum of 2 metres distance from others unless they are members of the same household or cohort group (section 2). • CMOH Order 42-2020: effective December 13, 2020, required the wearing of a face mask while attending an indoor public place, including any indoor location where a business is operating (section 23) unless the person attending an indoor public place has a mask exemption, is alone at a workstation and maintains a 2-metre separation from others, or is separated from others by a physical barrier (section 24). [ 8 ] On January 8, 2021, the Inspector attended the Appellant for an inspection.

In her inspection report, she notes that in addition to various food handling related deficiencies, staff were not wearing masks and maintaining the required 2 metre distance from patrons, signage notifying patrons about Covid requirements was not posted, tables and chairs were within 2 metres of each other, and certain disinfection/hygiene measures were not being observed. The Inspector ordered the Owners to bring themselves into compliance with the CMOH Orders and required them to submit a Relaunch Plan outlining the steps they were taking to ensure public safety and adherence with current CMOH Orders. Ms.

Pacholek received a copy of the inspection report via e-mail. [ 9 ] On January 12, 2021, Ms. Pacholek e-mailed the Inspector to confirm she had taken the steps to correct most of the food handling issues, that staff members serving patrons would be masked, that mask-exempt staff would be confined to the back of the business, that appropriate signage was posted and that patrons were aware of Covid-related restrictions.

The Inspector replied and explained that if the Appellant was to stay open, the Owners would need to submit a “detailed plan” identifying which staff members would wear masks, what duties mask-exempt staff would have, what measures were in place to ensure appropriate distancing and to prevent patrons from consuming their drinks inside the premises, and to confirm that signage was posted. [ 10 ] Ms. Pacholek provided her plan.

The Inspector sought further clarification regarding proposed distancing measures, particularly in respect of mask-exempt staff, the Appellant’s maximum occupancy load, and measures the Owners were taking to prohibit indoor dining. She also confirmed that the proposed “our rules” signage was not acceptable. Ms. Pacholek initially advised the Inspector she was not prepared to remove her sign, but this matter ultimately was resolved on January 13, 2021, when Ms. Pacholek confirmed she had posted the “masks are mandatory” sign and that she would “post any signs that are provided to us”.

[ 11 ] The Inspector explained she was not expecting business owners to enforce Covid measures or to confront non-compliant patrons but that the CMOH Orders required business owners to implement practices including informing patrons of the Covid-related rules which must be followed or alternatively, to post the approved signage. [ 12 ] The Inspector re-attended at the Appellant’s premises on January 14, 2021, and confirmed that it continued to be in non- compliance in respect of food handling requirements and Covid-related matters originally identified in the January 8, 2021 inspection. [ 13 ] During the hearing, Ms.

Pacholek conceded that starting in January 2021, the Inspector provided her with information regarding the applicable Covid-related requirements including links to the provincial website with a list of current Covid restrictions, approved signage, fact sheets, guidelines, and Relaunch Plan guidance. B. The March Inspections [ 14 ] Another public complaint was received by AHS in March alleging the Appellant’s employees were not properly masked and were otherwise ignoring preventative measures.

By then, CMOH Order 04-2021 had come into effect on March 1, 2021, which reiterated the masking and distancing obligations articulated in sections 23 and 24 of CMOH Order 42-2020. [ 15 ] The Inspector carried out an inspection on March 19, 2021 and observed two staff members and one patron situated near one another and that, when she arrived, one of the staff members put on their mask.

In her inspection report, she notes there were no barriers at the serving counter, that two staff were serving customers without masks and were within 2 metres of a patron, and that staff were not asking patrons to maintain a 2-metre distance.

She explained to the Owners they could mitigate the issue with non-mask-exempt staff by ensuring they maintain a 2-metre distance from customers or put in place other preventative measures, such as having a barrier at the counter, having the patron step back from the counter when staff set down their drinks, or placing line markings on the floor that would assist customers maintain the necessary separation. [ 16 ] The Owners advised the Inspector they were not prepared to follow the Relaunch Plan the business had submitted in January 2021. [ 17 ] In her inspection report, the Inspector lists the following Covid-related requirements: Staff must wear a mask in indoor public places in accordance with CMOH Order 4-2021.

Anyone that is exempt is to maintain 2m distance from all others, be assigned to other duties, work in an area alone, or work behind a sufficient barrier. Provide a barrier at counter to protect any exempt staff or patrons from coming in close contact.

PHYSICAL DISTANCING, CAPACITY Persons at the facility are not able to, or are not consistently maintaining appropriate separation distances in order to mitigate disease transmission risk, AR 243/2003 s2(1) EDUCATION, TRAINING, SIGNAGE Persons at the facility are not provided adequate direction on proper infection control practices and/or procedures are not clearly posted.

AR 243/2003 s2(1) [ 18 ] Her inspection report notes that violations were observed and that follow-up was required. [ 19 ] The Inspector testified that the reference to “proper infection control practices” related to a requirement contained in CMOH Order 25-2020 that required business operators to implement practices to minimize the risk of transmission of infection amongst persons working at or attending a business, including such measures as the installation of physical barriers, floor markers or the maintenance of appropriate distancing.

She further explained that the Relaunch Plan template, which the Owners had submitted in January 2021, included reference to these practices. [ 20 ] In the “Closing Comments” box of her inspection report, the Inspector notes the Owners must ensure compliance.

When the Inspector e-mailed the Owners with a copy of her inspection report that day, she attached a copy of CMOH Order 4-2021 which articulated the masking requirements the Inspector had referred to. [ 21 ] The Inspector testified she found the Owners to be “relatively argumentative” and that they told her they didn’t have to follow the CMOH Orders due to their Charter rights.

The Inspector confirmed that mask-exempt employees could still serve customers, but the Owners were obliged to implement certain measures to reduce the risk of Covid transmission, such as the installation of physical barriers separating mask-exempt staff from customers (at the counter/till), having appropriately spaced floor markers that customers could stand behind, and signage reminding customers to maintain a 2-meter separation. The Inspector testified that these practices would have satisfied her expectations regarding compliance.

She denied the Owners’ assertion that had escalated tensions with the Owners by accidentally knocking over a display rack. [ 22 ] The Inspector returned with the Manager for a follow-up inspection on March 22, 2021. In her inspection report, she observes that a masked staff member was serving a patron while two mask-exempt family members were seated in a public common area. She was advised one of the staff members “almost always” wears a mask. The Owners indicated they would try to ensure any staff member not wearing a mask was appropriately distanced from others.

She testified that on this occasion, the business was complying because the mask-exempt family members were separated from a patron by 2 meters. The Inspector notes that as the Owners were reluctant to advise patrons of their obligation to mask and were not prepared to enforce the masking obligation, the Owners could post signage advising patrons of their masking obligations. The Inspector notes that she advised staff breaks should be taken in private areas to maintain a separation with patrons when masks could not be worn. The Inspector reiterated the Covid-related requirements previously outlined in

her March 18, 2021 inspection report. She explained it was not her job to determine whether a person was mask-exempt but to ensure anyone who claimed a mask exemption had to maintain the appropriate 2-metre distance from others. [ 23 ] The Inspector made the following notes in the inspection report: Required: Staff must wear a mask in indoor public places in accordance with CMOH Order 4-2021. Anyone that is exempt is to maintain a 2 m distance from all others, be assigned to other duties, work in an area alone, or work behind a sufficient barrier.

Provide a barrier at counter to protect any exempt staff or patrons from coming in close contact. [ 24 ] In the Closing Comments box of the inspection report, the Inspector notes: Owners stressed concern about complaints being filed. To reduce the likelihood of further complaints and subsequent enforcement please ensure compliance with masking and distancing requirements. [ 25 ] Ms. Pacholek testified she did not know what the concern was with the Owners sitting unmasked in the common area and she was not aware of there being any patrons in the business on that occasion.

In evidence, the Inspector acknowledged she could not remember whether there were any patrons present. Ms. Pacholek stated she did not believe she could run the business if she was prohibited from entering the public area of the store and that dismissing a mask-exempt employee constituted a violation of their human rights.

Further, she objected to the Inspector’s suggested signage which she felt “ignores human rights and the Charter of Rights ”, that she didn’t want her business to “be liable for anything like that”, that she was not prepared to actively enforce the masking or separation requirements because “its also a potentially dangerous situation if people get angry” and that she “was not going to subject [her] daughters [aged 18 and 20] to that”. [ 26 ] On March 23, 2021, the Inspector e-mailed Ms.

Pacholek a copy of her inspection report with the following guidance: As previously mentioned barriers installed can protect both your family and patrons, floor markers where patrons should stand that are placed 2 m away from staff behind the counter is another option. I have also attached a mask poster that you can post notifying patrons that they are required. If you have any questions feel free to contact me. [ 27 ] A further inspection was conducted on March 30, 2021, by another AHS public health inspector.

The inspection report, which was admitted into evidence at the Hearing, noted that there were 3 staff members behind the food services area not wearing a mask, one of the staff members was wearing a mask although it was pulled down to his chin, several customers in the premises were either not wearing masks or were improperly masked and were not asked by staff to mask, and that the distance between two masked patrons and an unmasked staff member at the till was less than 2 metres.

The inspector noted that physical barriers had not been installed at the counter and that a sign had been posted which advised patrons that individuals in the facility will be masked and unmasked and that masking will not be enforced. C.

The April Inspections [ 28 ] AHS received another public complaint in April 2021, alleging the Owners were hosting public meetings where patrons and staff were not wearing masks and that there were as many as 20 students without masks in attendance in the premises during lunchtime. [ 29 ] The Inspector, the Manager and an Occupational Health and Safety (“OH& S”) inspector conducted an inspection on April 7, 2021. In her inspection report, the Inspector notes the Owners and staff were not wearing masks and were not maintaining a 2-metre separation while unmasked.

She discussed the issue of student crowding and the permitted occupancy load with the Owners. The Inspector provided the Owners her inspection report from her previous inspection. In her April 7, 2021 inspection report, the Inspector notes the Owners asked her and the Manager to leave shortly after arriving, that one of the Owners began to swear at them and came around from behind the counter and approached them within 2 meters insisting they leave the premises while the other Owner indicated they were not welcome.

The Inspector notes 16 students were observed in the premises at one time and were seated at tables within 2 metres of each other. [ 30 ] The Inspector writes in her inspection report that: Description: COVID-19 risk mitigation measures were not observed – specific to distancing of both patrons and staff. PHYSICAL DISTANCING, CAPACITY Persons at the facility are not able to or are not consistently maintaining appropriate separation distances in order to mitigate disease transmission risk.

AR 243/2003 s 2(1) [ 31 ] In the Closing Comments box, the Inspector states: Enforcement measures have been discussed and owners have been made aware of next steps. Owners requested information on various sections of the [ Act ] which will be provided e-mail. [ 32 ] The inspection report refers to violations cited with follow-up required. [ 33 ] Ms. Pacholek denies holding meetings at the business. With respect to the students, she says the photo the Inspector relies upon only shows 9 classmates, some of whom are wearing masks, and that these students regularly attend the business over the lunch hour.

She acknowledged that at this time the CMOH Orders prohibited individuals from being within 2 metres of each other, although the photos clearly indicate the students were not appropriately distanced. She testified AHS was “getting angry” and things were “just

getting heated” so she and Mr. Pacholek asked the Inspector and the Manager to leave. She testified that after having left the premises, the Manager returned and took the photo. [ 34 ] The Inspector testified that when she asked the Owners to explain why the students were unmasked, she was told the students were allowed to be there as they were from the same school cohort. The Inspector stated that when she tried to explain that what the school might view as a cohort was not similar to how a cohort was defined in the CMOH Orders, the Owners became “more agitated and more aggressive”.

She testified the Owners told them to leave, that they’d had enough, they weren’t willing to deal with them and that “[Mr. Pacholek] was very verbally abusive. He was swearing. He came forward sort of towards us and told us to leave. Which we did. So, we waited outside”. [ 35 ] The Inspector explained her concern was there were more than 2 students sitting together in one area without appropriate distancing which the Owners had allowed by failing to spread out the tables, removing some of the chairs or limiting the number of people allowed to attend the store at the same time.

The Inspector testified that at this time, Covid restrictions allowed dining only with a household member or two cohort members if you lived alone, that seating was limited to 6 per table, and that the operator was responsible for reminding patrons they could only dine with other household members. [ 36 ] During Ms. Pacholek’s examination by the Board, she admitted that in a photograph taken on April 7, 2021, one of the staff members serving patrons behind the counter is not wearing a mask despite not being mask exempt.

The photograph clearly depicts the staff member being within 2 metres of patrons without any physical barrier between herself and the patrons on the other side of the counter. [ 37 ] The Manager was asked to comment on the Inspector’s observations regarding Mr. Pacholek having acted in a threatening manner and swearing. He was challenged by Appellant’s counsel that he had been recorded threatening the Owners to “shut them down” while laughing.

He remembered that conversation and doesn’t recall laughing. [ 38 ] The Manager testified he could not specify which of the students were eating or drinking but was concerned they were not appropriately distanced. He testified he did not direct the students to separate because “[Mr. Pacholek] was yelling at me to get out. He was waving his finger at me. He was maybe cursing. I am not sure. And I was honestly thinking I was probably going to get punched in the face”. He left but re-entered the premises and took the photo (which clearly shows students being seated within 2 metres of each other).

He confirmed it was not for the Owners to require the students to comply with Covid-related measures, but they were required to take reasonable measures “to help control that”. [ 39 ] On April 9, 2021, the Inspector emailed the Owners with a copy of the Act and relevant excerpts including the definition of “public place” and sections 59-73 that address an executive officer’s inspection and enforcement powers, the definition of obstruction, and penalty range for a contravention of the Act . She invited them to contact her should they have any questions.

She advised that to assist them determine their occupancy limit, she had reached out to the Town which had advised her the Fire Department could provide the Owners with further assistance. [ 40 ] That day, CMOH Order 10-2021 came into effect, prohibiting operators of a food service business from offering or providing indoor food and beverage services (section 6.2) and imposing additional requirements regarding outdoor food and beverage services. [ 41 ] Ms. Pacholek received a copy of the inspection report on April 13, 2021.

She testified that by this time, she was aware of current CMOH Orders which prevented indoor dining and that patrons were prohibited from sitting within 2 metres of each other. She acknowledged receiving the Inspector’s April 9, 2021 email attaching a copy of the Act with applicable excerpts with the Inspector’s invitation to contact her if she had any questions and that the Inspector was working to assist her in determining what the occupancy limit was. Ms. Pacholek recalls reviewing

section 59 of the Act , an excerpt of which the Inspector had provided to her, particularly the authority provided to an inspector to inspect any public place for the purpose of determining a nuisance, to take photographs and to require the production of books, records or things such as receipts. D. The Order [ 42 ] On April 12, 2021, the Inspector issued the Owners with the Order. [ 43 ] The Inspector explained her reasons for issuing the Order: ...I felt that I had exhausted all of my other measures. I felt like I had offered them resources. I had provided them with materials.

I had done multiple inspections where they were in the majority of those inspections found not to be compliant.

So I felt like I didn’t have any other choice but to take that next step and issue them a work order to do certain things to try and gain compliance. [ 44 ] She testified she did not expect or require the Owners to enforce Covid-related measures other than to take “reasonable measures to ensure that patrons are aware of those requirements” including erecting a barrier at the till to maintain a safe distance between a mask-exempt staff member and a patron, floor markers on the floor so that people know where to stand or where to line up, removing chairs so that the limit of 6 customers per table could be observed, appropriately spacing tables to ensure adequate distancing, posting government approved signage notifying the public of masking and distancing requirements, or reminding patrons they should only be dining with members of their own approved cohort. [ 45 ] The Order references the current CMOH Orders and enumerates that the following breaches have occurred “which are or may become injurious or dangerous to the public health or which might hinder in any manner the prevention or suppression of disease”: (

a) Staff members working at the counter and providing service were not wearing a face mask and were within 2 meters of patrons. (b) 16 students were observed in the premises at one time and were observed seated less than 2 metres from other seated

patrons. [ 46 ] Clause 1 of the Order directs the Owners to: (

a) Ensure that staff are properly wearing cloth or medical face masks. Staff who have a physical or mental limitation that prevents them for wearing a face mask must maintain 2 metres of distance from staff and patrons. (

b) Ensure patrons are dining in accordance with all active CMOH Orders including but not limited to being distanced by 2 meters, seated on patios only with no more than 6 people per table, requiring diners to remain seated while consuming food or beverages and prohibiting seated patrons from interacting with persons seated a different table. (

c) Update and re-submit the Relaunch Plan Template. The plan must include details of appropriate COVID-19 risk mitigation measures to be implemented and followed with particular consideration to masking and distancing procedures among staff and patrons. Submit the Relaunch Plan Template to an Alberta Health Services Executive Officer for review. Ensure the details of the completed Relaunch Plan Template are shared with and implemented by all management and staff of the food establishment. [ 47 ] Clause 2 of the Order requires the Owners to comply immediately with the requirements in clause 1(

a) and (

b) and gave the Owners until April 16, 2021 to submit a revised Relaunch Plan per clause 1(c). The Inspector testified the requirements in clauses 1(

a) and (

b) merely reflected the current legal restrictions set out in CMOH Orders. As for clause 1(c), the Inspector noted that while the Owners had submitted a Relaunch Plan in January 2021, she felt some of the answers were “a little bit too broad and open ended”, did not consider the higher number of customers who were visiting the business and the crowding that sometimes occurred, and did not reflect the fact one of the staff was mask exempt. [ 48 ] The Order did not attach any details regarding an appeal. The Inspector acknowledged she did not provide Ms.

Pacholek with notice of a right to appeal because the template-form for the Order (which had been prepared by AHS legal staff) did not include this information. [ 49 ] Ms. Pacholek testified she found the terms in clauses 1(

a) and (

b) of the Order to be vague. When asked by a member of the Board what she meant, she stated, “there was really no evidence provided as to the offence” and “from what I read in the inspection and the order, there was no basis for it. There is no actual evidence. There is no names. There is no dates. There is no interviews with witnesses. Its just incredibly vague”. [ 50 ] The same day, the Inspector e-mailed the Owners a copy of the Order. In her accompanying e-mail, she writes: Please find attached [the Order] for [Stacey’s]. Please review the Order and ensure compliance within the timeframes noted.

Please be aware that failure to comply may result in further enforcement action being taken as has been discussed at previous inspections. Should you have any questions please feel free to contact me. [ 51 ] In an e-mail to the Inspector sent on April 12, 2021, Ms. Pacholek advises: Thank you for the [Order] that you sent me to review. As per our many discussions, I am informing you, again, that I will not comply with or enforce these orders. E. The Notice of Suspension [ 52 ] On April 16, 2021, the Inspector e-mailed the Owners a copy of the Notice of Suspension which, pursuant to

section 11 (

b) of the Regulation , suspended the Permit for the following reasons: (

a) Ongoing non-compliance with [the Order]; (

b) Non-compliance with

Section 71 (i.e., obstruction) of the [ Act ]. [ 53 ] The Notice of Suspension stipulated the criteria that had to satisfied to lift it were: (

a) Compliance with [the Order] to the satisfaction of an executive officer; (

b) Compliance with all relevant CMOH Orders; and (

c) No further obstruction of executive officers in carrying out their duties under the [ Act ], including inspection under

section 59 of the [ Act ]. [ 54 ] In her e-mail, the Inspector invited the Owners to reach out to her if they had questions. [ 55 ] The Notice of Suspension indicates a review would occur at a meeting on April 26, 2021 at the Sylvan Lake Community Health Centre and that the Owners would need to confirm their attendance. In an e-mail to the Owners on April 16, 2021, the Inspector asked the Owners to contact her to confirm their attendance. The Inspector explained she had issued the Notice of Suspension because the Owners were not following the Order and that consequently, the Permit could be suspended pursuant to

section 62 of the Act . She further explained the effect of the Notice of Suspension was that the Owners were prohibited from serving food and beverages but could continue operating the bookstore side of their business. The Inspector testified the purpose of the April 26, 2021 meeting was for the parties to “sit down...and review the [Notice of Suspension] and answer any questions they had and try and come to an arrangement where they were willing to be in compliance”. The Owners advised they would not attend because they did not believe they would be allowed to enter a provincial building as they were mask exempt. They rejected the Inspector’s offer to attend the meeting remotely.

[ 56 ] On April 19, 2021, Ms. Pacholek e-mailed the Inspector, asking for clarification regarding the various legislative provisions and the CMOH Orders referred to in the Notice of Suspension. She asked for an updated copy of the Act . She advised she had tried to file a notice of appeal but could not find the appropriate on-line web portal to do so. It turns out the appeal link was not functioning. [ 57 ] The Inspector conducted a follow-up inspection from the exterior of the premises on April 20, 2021.

Her reason for not entering the premises was that “every time we entered the premises, we’ve been asked to leave... [Mr. Pacholek] was verbally abusive. They were both aggressive”. In her inspection report, she observes patrons entering the store empty handed, leaving with beverages in single-use takeout containers. She notes the Owners were not complying with the Notice of Suspension and had not yet provided a revised Relaunch Plan.

She also notes there were 10 patrons in the store at the same time and while the Owners had been advised to obtain an occupancy load, had not yet done so. [ 58 ] The inspection report notes that failure to comply with a written order or contravention of the Act could result in a prosecution and, if found guilty, a fine pursuant to sections 62 and 73(1) . [ 59 ] The same day, the Inspector e-mailed Ms. Pacholek a link to the Alberta government website containing the CMOH Orders and a copy of the Act which she had previously provided on April 9, 2021. The Inspector testified she thought she had provided Ms.

Pacholek with the correct appeal information and that upon discovering the link might not be working, found the correct link and provided it to Ms. Pacholek along with an appeal form so she could file her appeal. [ 60 ] She responded to Ms. Pacholek’s question posed in her April 19, 2021 e-mail about the purpose of the meeting, which the Inspector explained was to provide her with: ...an opportunity for you to be heard if you choose, and for us to outline the issues that require resolution before a permit can be renewed. We will review the work order, and the various CMOH [O]rders and the [ Act ] if you wish.

We will discuss the covid control template and the appropriate actions required to have the permit back. We have always been open to a conversation however you have asked us to leave when attempting to do so. If you are unable to wear a mask then we would either need to meet virtually (skype/zoom) or meet outside at a TBD location. [ 61 ] Ms.

Pacholek testified that although she had initially submitted a Relaunch Plan in January 2021 which she understood was acceptable and that “nothing further came of it”, she hadn’t subsequently revised it, that she had not been provided with any specifics about what she should include in the revision but was just told she “had to be in full compliance with everything” which she understood to be the CMOH Orders. [ 62 ] On April 22, 2021, the Inspector provided an additional reply to Ms. Pacholek’s April 19, 2021 e-mail, attaching a copy of

section 11 (

b) of the Regulation . She states although she is not sure what assistance she could provide regarding the information Ms. Pacholek was seeking in respect of the applicable legislative provisions, she was providing her and the Manager’s telephone numbers if Ms. Pacholek has any follow-up questions they could help her with. [ 63 ] On April 23, 2021, Ms. Pacholek replies: First, thank you for the notice of appeal that you sent, it was appreciated. I have combed though all the information you gave me and feel I have what I need now, thank you.

Second, in regards to the meeting, after careful consideration, I have decided not to attend. I have filed an appeal with the Appeal Board, and prefer to wait for their decision. Previous conversations have proved unproductive and stressful, and as AHS has stated that they are unwilling to compromise, I can reasonably deduce that future conservations would be futile. F.

The Notice of Closure Order [ 64 ] On April 26, 2021, the Inspector e-mailed the Owners advising them that as a result of the April 20, 2021 inspection which indicated the business was continuing to operate as a food premises in contravention of the Notice of Suspension, she was issuing a Notice of Closure Order. The Notice of Closure Order states that inspections have disclosed breaches of the Act and the Regulation and the Owners are operating without a valid and subsisting AHS food handling permit in contravention of section 3(1) (a)(

b) of the Act . The Notice of Closure Order directs: (

a) That the Owner immediately close the above noted premises to food and beverage service; (

b) That the Owner immediately undertake and diligently pursue the completion of the following work in and about the above noted premises, namely: (

i) Obtain a valid food handling permit from [AHS]. (

c) That, until such time as the work referred to in paragraph 2 is completed to the satisfaction of an Executive Officer of [AHS], the above noted premises shall remain closed to food and beverage service. [ 65 ] The Inspector advised the Owners they were prohibited from offering/selling food and/or beverages to the public until such time as the appeal was heard. She attached the information required for the Owners to file an appeal. G. Further Inspections and the Procedural Preliminary Hearing [ 66 ] Further inspections occurred on April 27 and 29, 2021.

The inspection report from April 27 confirms a closed sign was posted on the door although there seems to have been some activity going on in and around the premises. The inspection report notes that despite the Notice of Closure Order, five people were observed leaving the premises with beverages they did not have when they entered

and that the Owners had failed to meet their April 12, 2021 deadline to submit their revised Relaunch Plan. [ 67 ] The Inspection Report notes: FAILURE TO COMPLY WITH A WRITTEN ORDER This food facility is operating contrary to a written order issued by an Executive Officer of [AHS]. A facility that has been issued a written order shall comply with the order until it is rescinded by an Executive Officer of [AHS]. A person who contravenes the [ Act ] or an order issued by an Executive Officer may be prosecuted and subject to penalty if found guilty, RSA 2000

Chapter P-37 , s 62, s 73(1) [ 68 ] On April 29, 2021, the Inspector conducted a further inspection. She was accompanied by another AHS public health inspector and an RCMP Constable. She observed a patron leave the store with an iced coffee type drink. No other patrons were in the store. One of the Owners’ daughters was masked while the other was not. The Owners came out and advised the Inspector they weren’t selling coffee but were giving it away. The Inspector explained the Notice of Suspension prohibited serving food or beverages to the public without a valid permit.

The Inspector posted the Notice of Closure to the door and directed it must not be removed. Ms. Pacholek testified she was advised of her right to appeal the Notice of Closure Order. [ 69 ] The Inspector requested cash till receipts from April 20, 2021 onwards. Mr. Pacholek refused but, having been told by the RCMP Constable the Owners could be arrested for obstruction if they didn’t cooperate, turned them over. Photos were taken of receipts for dates between April 20 and 29, disclosing sales of beverages having occurred when the Notice of Suspension was operative. Ms.

Pacholek testified she does not recall the Inspector advising of the legal authority that permitted seizure of the till receipts and that she would not have turned these over but for the RCMP Constable’s threat that they could be arrested for obstruction. [ 70 ] On April 29, 2021, the Chair of the Board convened a Procedural Preliminary Hearing (the “Preliminary Hearing”) with the Owners and AHS’ counsel to clarify the Appellant’s grounds of appeal (more on this below). Ms. Pacholek testified the April 29, 2021 inspection occurred an hour or so before the Preliminary Hearing.

She felt she had no choice but to give over the till receipts because she didn’t want to be arrested which would have prevented her from attending the Preliminary Hearing. Ms. Pacholek testifies feeling “threatened and bullied and intimidated”. [ 71 ] The Inspector was asked why she would have conducted an inspection on April 29, 2021, just before the scheduled Preliminary Hearing.

She testified she “wasn’t aware of the time or date – or at least not the time” and doesn’t know “if I was even aware of the date” of the Preliminary Hearing and stated that in any event, “my timing wasn’t intentional”. [ 72 ] The Inspector received another public complaint in May 2021. While she did not conduct an inspection, the Manager did. In his inspection report from his May 14, 2021 inspection, the Manager notes that over the course of approximately 30 minutes, he observed 8 people enter the premises, 7 of them leaving with drinks.

He concluded that despite the Notice of Closure Order sign being posted on the door, the business was continuing to serve beverages. [ 73 ] The Manager admitted he did not know what was in the beverage cups. He stated it could still be an offence to give away complimentary drinks because a food handling permit was required to serve food even if it was complimentary.

He conceded there might be permissible circumstances for a business to offer “low risk” food items subject to minimal food handling such as coffee from a complimentary coffee machine although this would still at least require a discussion with the owners. H. The CMOH Orders are Rescinded and the Appellant is Granted a New Food Handling Permit [ 74 ] On or about July 1, 2021, the CMOH rescinded the CMOH Orders. In the result, the AHS Orders were rescinded on July 26, 2021. The Appellant was granted a new food-handling permit on July 1, 2021 (the “New Permit”). III.

The Hearing [ 75 ] The Board received the Appellant’s Notice of Appeal on April 21, 2021. [ 76 ] The Notice of Appeal listed the following appeal grounds: (

a) Complaints are vague and unsubstantiated. (

b) Measures to comply are contradictory. (

c) AHS is arbitrarily choosing businesses to bully and enforce measures upon. (

d) Section 75 of the Public Health Act “Except for the Alberta Bill of Rights”. (

e) Canadian Charter of Rights and Freedoms . [ 77 ] In a letter dated April 30, 2021 (the day after the Preliminary Hearing), the Chair of the Board sent Ms. Pacholek an e-mail narrowing the grounds of the appeal which it would consider: Further to the [Preliminary Hearing] held on April 29, 2021, and the submissions from the appellant and counsel for the respondent, the Chair finds that the appellants have articulated grounds of appeal that fall within the Board’s jurisdiction to adjudicate. The grounds, as presented by the appellant and understood by the Chair are:

1. Items 1a. and b. of the order are vague with no specifics regarding date, time, evidence or particulars of the offence. 2. Item 1c of the order does not apply since items 1a. and b. are invalid. [ 78 ] The appeal was conducted via video and telephone conference over the course of three days: May 18 and 21 and June 4, 2021. Each of the Appellant and AHS was represented by counsel. [ 79 ] The Board is established pursuant to

section 3 of the Act . Its jurisdiction is circumscribed by the Act . Pursuant to

section 5 of the Act , its duties are limited to hearing appeals of orders issued under

section 62 of the Act and of decisions to issue, cancel, suspend or refuse to issue a license, permit or other approval provided for in the applicable regulations. [ 80 ] Pursuant to the authority granted in accordance with section 5(10) of the Act , the Board has published Rules of Procedure (the “Rules”) which set out various procedural and evidentiary matters.

These include: • Rule 3.2.1 The Board’s jurisdiction is limited to “appeals to address grievances with Decisions made by Alberta Health Services”. • Rule 3.2.2 The Board is “not empowered to deal with questions of constitutional law” and “complaints of violations of rights under either the Canadian Charter of Rights and Freedoms or the Alberta Bill of Rights are not within [its] jurisdiction”. (Further, the Board is not named as a decision maker upon whom the jurisdiction to hear constitutional matter has been conferred:

Section 11 of the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3 and

section 2 of the Designation of Constitutional Decision Makers Regulation , Alta Reg 69/2006 .) [ 81 ] At the start of the Hearing, the Board confirmed it does not have the jurisdiction to confirm, vary or set aside the CMOH Orders or to entertain questions regarding constitutional law. This conclusion is consistent with Rules 3.2.1 and 3.2.2 and the legislature’s decision not to confer upon the Board the jurisdiction to consider constitutional challenges.

The Board confirmed the scope of the appeal was limited to whether it should reverse the AHS Orders although it recognized that setting aside the Order would necessarily result in the termination of the Notice of Suspension and the Notice of Closure Order. [ 82 ] The Board confirmed the appeal would proceed on the grounds articulated by the Chair in her April 30, 2021 correspondence to which Appellant’s counsel agreed: Chair: So, Ms. Rouillard, you are ready to proceed in regard to the three grounds from the April 12 th order; is that right? Ms.

Rouillard: Correct. [ 83 ] At the start of the third day of the Hearing, the Chair sought to confirm whether Appellant’s counsel intended to broaden her client’s grounds of appeal. The Appellant’s counsel said the vagueness argument she was making in respect of the Order would also apply in respect of the Notice of Suspension Order and the Notice of Closure of Order. IV. The Board’s Decision [ 84 ] On June 18, 2021, the Board advised the parties via e-mail of its decision to uphold the AHS Orders and that: The decision of the board with detailed written reasons will follow in due time.

If you have any questions or concerns, please contact the Secretariat at... [ 85 ] The same day, the Appellant’s counsel sent an e-mail to the Secretariat regarding a limitations issue: Please be advised that the Reasons are required to in order to file an Application for Judicial Review with the Court of Queen’s Bench, which I have been instructed to immediately prepare. In view of the pending Application, we ask that you please FORTHWITH provide the Reasons, as well as a Transcript of the Appeal Proceedings in a timely manner.

Please advise regarding why this Decision was released without the Reasons since this matter is time- sensitive, involving a limitation period that begins to run from the point the decision is rendered. [ 86 ] The Board provided its written Decision on July 6, 2021. [ 87 ] In its Decision, the Board reviews the circumstances leading up to the issuance of the AHS Orders.

The Board acknowledges the Appellant’s arguments that the Owners and one of their daughters were mask exempt, that requiring the exempt family members to wear masks would prevent them from operating the business, and that the Owners have continuously complied with the masking requirements of the CMOH Orders. [ 88 ] The Board summarizes the Appellant’s submissions at some length: • the Inspector breached the duty of fairness by failing to speak with the patrons to determine whether they fit into cohorts or exemptions or to determine what was in the patrons’ cups when they left the business; • the photo taken of the students on April 7, 2021 shows only 9 students sitting as they normally would in a classroom with only one of the students eating, drinking, or interacting with other students at other tables; • the observations derived from inspections conducted from outside the premises were inaccurate and photographs taken during inspections do not substantiate the Inspector’s findings;

• the Inspector failed to engage directly with patrons regarding their compliance with Covid-related measures and further, failed to explain how the Owners could compel patrons to comply with the various CMOH Orders; • the Inspector never specified what revisions she required to the Owners’ Relaunch Plan which was optional rather than mandatory; • it was an error of law for the Order not to include appeal information; • the Inspector’s discretion to determine whether the requirements of the Order were complied with constitutes “a misuse of discretionary power that collapses businesses by imposing compliance requirements that owners can never achieve”; • the Owners were targeted and subjected to disproportionate, unfair, and coercive enforcement measures and were subject of enforcement measures when other businesses were not; • the Notice of Suspension, which required the Owners to comply with all relevant CMOH Orders is vague for uncertainty because it does not specify which provisions of CMOH Orders they were required to comply with, thereby granting AHS an overarching discretion to maintain a closure; • the Inspector acted on public complaints that were false or unverified; • the seizure of the till receipts required a warrant and was therefore unlawful and the threat of unlawful arrest was not within the AHS’ jurisdiction to make under the Act ; • requiring the Owners to attend an in-person meeting following the granting of the Notice of Suspension in a building which would not have allowed them to enter due to their mask-exempt status constituted an abuse of the Inspector’s discretionary power; • despite being asked, the Inspector refused to answer the Owners’ questions regarding certain terms in the Notice of Suspension; • the Inspector failed to establish that the Appellant constituted a nuisance as defined in

section 62 of the Act , particularly as Occupational Health and Safety had found the premises to be safe and there was no proof the Appellant was the source of any Covid cases; and • the requirements of the CMOH Orders are inappropriately delegated by AHS to business owners who are ultimately responsible for enforcing them. [ 89 ] The Board reviews AHS’ evidence, noting the Inspector’s observations of the Owners’ continuing non-compliance regarding masking and appropriate distancing during her inspections and that her attendance derived from public complaints.

The Board notes the efforts the Inspector made in January, March, and April 2021 to assist the Owners to understand what Covid-related measures they were required to follow, having sent them web links to all current CMOH Orders, approved signage, the AHS website and other resources, information about floor markers, barriers, and a mask poster, and having offered the Owners a virtual meeting.

The Board points out the Owners informed the Inspector in January and April of their refusal to follow the Relaunch Plan or comply with CMOH Orders and the Order, were choosing not to wear masks, and were taking a stand against government measures which they believed were ineffective. The Board further notes the Owners’ continuing non-compliance with the AHS Orders continued up until May 14, 2021. [ 90 ] The Board finds the Inspector to be a “credible and truthful” witness who carried out her inspections pursuant to her legislative authority.

The Board finds the Owners had continually not complied with Covid-related health restrictions over the course of seven inspections and that the Inspector had established reasonable grounds for believing a nuisance existed at the business. [ 91 ] In particular, the Board accepts the Inspector’s evidence regarding indicators of the Owners’ non-compliance: • tables not appropriately spaced from each other by 2 metres; • staff, including one non-mask-exempt staff member and patrons not wearing masks not maintaining a 2-metre separation; • unmasked staff members serving patrons; and • the absence of protective barriers or screens at the serving counter. [ 92 ] The Board dismisses the Appellant’s claim that

section 1(

a) or 1(

b) of the Order is vague. The Board considers the AHS Orders and supporting inspection reports that “clearly state the observations made by the [Inspector and Manager] during their inspections” which provided the Owners with the requisite information about what they were required to do and the time in which to do it: ...these materials clearly provide specifics regarding date, time, evidence or particulars of the offences. They also state what work must be done to become compliant and when the work must be done. Accordingly, the [Board] finds that items 1(

a) and 1(

b) are valid. [ 93 ] With respect to the Appellants’ second appeal ground which pertained to the application of clause 1(

c) of the Order, the Board agrees with AHS that despite the Relaunch Plan being optional, once the Inspector established reasonable grounds for the finding of a nuisance, she has the authority pursuant to

section 62 of the Act to “make an order to mitigate a nuisance” which required the Owners to submit a revised Relaunch Plan. V. The Appellant’s Grounds for Judicial Review

[94] The Appellant filed an Originating Application for Judicial Review on January 6, 2022, seeking numerous forms of relief,including declarations that the Decision was reached in manner that breached the duty of procedural fairness owned to the Appellant; thatthe Decision is unreasonable, incorrect in law or was reached in a procedurally unfair manner; and that the seizure of the till receiptsconstitutes a breach of the Owners’ reasonable expectation of privacy pursuant to the Charter and is unconstitutional.

The Appellantseeks orders for certiorari quashing the Decision and an order for mandamus requiring AHS to re-issue the original Permit. [95] The grounds on which the Appellant relies in its written submissions are limited to the Board being in breach of its duty ofprocedural fairness, breaching the Applicant’s legitimate expectations, and having demonstrated a reasonable apprehension of bias.While I do not include each of the Appellant’s arguments, I summarize what I find to be the key arguments here: The Board breached its Duty of Fairness • The Appellant’s stay application was denied with no reasons given contrary to the Board’s undertaking to do so; • The Appellant did not receive AHS’ disclosure in advance of the hearing because the materials provided via an e-mail linkcould not be opened and accessed; • The Inspector’s request to view the till receipts and the RCMP Constable’s threat to arrest the Owners for obstructionviolated the Appellant’s reasonable expectation of privacy and the till receipts should not have been admitted into evidence; • The Board permitted the admission of altered inspection reports; and • The Board was not consistent in its treatment of evidence and improperly preferred the Inspector’s evidence and testimony.

The Board breached the Appellant’s Legitimate Expectations • The Board failed to properly consider AHS’ conduct which grossly exceeded a reasonable level of enforcement in relationto the low level of risk the Appellant presented; • The Inspector conducted inspections on the basis of unverified public complaints, did not speak with patrons and confirmthey were leaving with beverages, and conducted inspections from her vehicle; • The Inspector/AHS invoked the full weight of governmental authority, including coordinating enforcement measures withthe RCMP when other agencies declined to pursue enforcement; and • The Inspector abused her authority by exercising her subjective discretion to determine when and if the Appellant hadsatisfied Covid-related measures when the “only obligation that the Appellant is to comply with the legislative requirements of holding aFood Permit in accordance with the governing legislation”.

The Board has Demonstrated a Reasonable Apprehension of Bias • The Board was biased and demonstrated a lack of independence towards the Appellant. VI. AHS’ Cross-Application to Strike the OriginatingNotice [96] AHS brought a preliminary application to strike the Appellant’s Originating Notice on two grounds.

First, the Appellant’sapplication for Judicial Review is moot and an abuse of process and second, the Appellant’s Originating Notice was filed outside the 6-month limitation period for the filing of an application for judicial review pursuant to rule 3.15(2) of the Alberta Rules of Court, AltaReg 124/2010 (“Rules of Court”). A.

Mootness [97] AHS says that as a consequence of the CMOH Orders and AHS Orders having been rescinded in July 2021 and the re-issuance to the Appellant of the New Permit, the Appellant’s application for judicial review is moot on the grounds that a “legalcontroversy between the parties no longer exists, the substratum of the litigation has disappeared, or a judicial ruling would have nopractical effect on the rights of the parties”: Alberta Union of Provincial Employees v Alberta, 2021 ABQB 398 at para 78.

AHS alsoargues that the application constitutes an abuse of process which I should strike pursuant to rule 3.68(2): Alberta Teachers’ Assn vRocky View School Division No 41, [2005] AJ No 1925 at para 2; Nascho Enterprises Ltd v Edmonton (City), 2014 ABQB 569 atparas 24 and 50-52. [98] AHS summarizes its position regarding mootness at para 32 of its written submissions: “[t]he [Appellant] received the corerelief [it] is now requesting from this Court” and “its rights are no longer at issue, and any decision issued by the Court would not haveany practicable effect given that [the Appellant] already enjoys the benefits of the relief [it is] requesting.” [99] A two-step test for determining mootness was established by the Supreme Court of Canada in Borowski v Canada (AG), (SCC), 1989 1 SCR 342.

The first step requires the Court to consider whether a live controversy exists between the parties orwhether the dispute has become academic. If the Court concludes there is no longer a live issue, it nevertheless has discretion to hear the

matter in accordance with three rationales: (1) whether there remains an adversarial context which “helps guarantee that issues are well and fully argued by parties who have a stake in the outcome”; (2) the need for judicial economy; and (3) a consideration of the court’s proper adjudicative function to avoid intruding into the legislative sphere: Alberta Teachers’ Assn v Buffalo Trail Public Schools Regional Division no 28 , 2014 ABCA 432 at para 16 . [ 100 ] I agree with AHS’ position that for the most part, the termination of the provincial state of emergency related to the Covid pandemic has brought the controversy between the parties to an end.

It is pointless for this Court to grant an order for certiorari quashing the Board’s decision since the AHS Orders have been rescinded. An order for mandamus similarly serves no point given the Appellant is permitted to serve food under the terms of the New Permit (which mirror the terms of the original Permit). [ 101 ] However, I understand that pursuant to certain requirements of the Act , AHS posts copies of inspection reports and outcomes on its publicly accessible website which remain there for three years before they are removed.

The website contains a link that will direct the public to a listing of AHS Orders which can be searched by zone. A second link entitled “View Inspection Reports” lists violations that are noted during a given inspection.

The inspection reports pertaining to the Appellant for the months of January-May 2021 are currently accessible on AHS’ website in addition to expanded inspection reports for those months (January 8, 14, 18, March 19, 22, 30, April 7, 20, 27, 29 and May 14, 2021). [ 102 ] The Appellant says the continued publication of this information on AHS’ website constitutes “defamatory statements” and “derogatory comments” and has caused the Appellant financial damage. [ 103 ] Were I to allow the Appellant’s application for judicial review and conclude the AHS Orders ought never to have been issued, then it would follow that any public record of these inspections which is available on AHS’ website should be removed.

Consequently, I take the view there is a “live issue” to be determined and there is a potentially available remedy. If I am wrong on that point, I am nevertheless prepared to exercise my discretion and hear the judicial review application given the Appellant and AHS seem to be locked in a continuing adversarial relationship: Vic Restaurant Inc v City of Montreal , 1958 SCR 58 , and that doing so would not strain judicial economy or inappropriately intrude into the legislative sphere. B.

The Originating Notice Was Filed Out of Time [ 104 ] AHS says the Originating Notice was filed on January 6, 2021, more than 6 months after the Appellant received the Board’s initial e-mail on June 18, 2021, advising of its Decision and that written reasons would follow. [ 105 ] AHS says the 6-month limitation period for filing an originating application for judicial review pursuant to rule 3.15(2) of the Rules of Court must be strictly construed and cannot be varied or extended: Al-Ghamdi v College and Association of Registered Nurses of Alberta , 2017 ABQB 685 at paras 93-96 ; Baker v Druin , 2017 ABQB 204 at paras 11-22 ; Yuill v Alberta (Workers’ Compensation Appeals Commission ) , 2016 ABQB 369 at paras 71-78 . [ 106 ] AHS also refers to Rule 4.13.2 which states the 6-month period for filing an application for judicial review commences when the Board communicates its appeal decision rather than when it provides its written decision: The decision of the [Board] on the appeal will be communicated to the Parties either orally...at the conclusion of the appeal hearing, or following the hearing in writing by the Secretariat.

The [Board] may in its discretion elect to initially communicate only its appeal decision with detailed reasons to follow. In that case, the date for the communication of the appeal decision is the commencing date for calculating the period of time in which any Party may commence a judicial review of the [Board’s] appeal decision. [ 107 ] The Appellant says the “decision” in respect of which an originating application is being filed must provide the responding party with sufficient knowledge or information such that the party can “formulate a basis for its appeal or judicial review”. I agree.

The June 18, 2021 e-mail provides no information about the Board’s reasoning that would have permitted the Appellant to understand the basis for the Decision and whether there were legitimate grounds for judicial review. It was only when the Appellant received the fully reasoned Decision on July 6, 2021 that it could reasonably have made an informed decision about the merits of proceeding with this application. [ 108 ] I am unpersuaded by AHS’ reliance on Rule 4.13.2.

While I agree that in principle, administrative decision makers are authorized to craft their own procedural rules, these do not, in my view, have the force of law and cannot impose mandatory requirements enforceable by sanction, particularly where they may affect a party’s substantive right to bring an originating notice for judicial review within a certain period. [ 109 ] In the result, AHS’ cross-application is dismissed. VII. Analysis [ 110 ] While the Originating Notice seeks a declaration that the Decision was unreasonable, the Appellant’s written submissions focus on procedural fairness.

I will first explore whether the Board breached its duty of procedural fairness. I will then address whether the Decision is reasonable. A. Duty of Procedural Fairness [ 111 ] The standard of review on issues of procedural fairness is correctness: Edmonton Police Association v Edmonton (City) , 2007 ABCA 184 at para 3 ; Alberta (Securities Commission) v Workum , 2010 ABCA 405 at para 28 ; Suncor Energy v Alberta (Minister of Energy) , [2019] AJ No 1800 at para 24 .

[112] The Appellant bears the onus to show the Board committed a serious procedural error that prejudiced its right to be heard. Anactual violation of the duty of fairness must be proved; a reasonable apprehension of a violation is insufficient: Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022), at page 248. [113] The principles regarding procedural fairness are articulated in Baker v Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 SCR 817. At paras 20-28, the Supreme Court of Canada confirmed the duty of fairness is flexible, variable,and contextual.

The Court enumerated a list of non-exhaustive factors to consider in determining the content of the duty. While theAppellant recognizes that a determination of procedural fairness is variable, it does not provide an analysis of the content of the duty offairness that it argues should apply here. For its part, AHS reviewed the factors enumerated by the Court in Baker and suggests theBoard must satisfy a moderate level of fairness. [114] In my view, the content of the duty of procedural fairness in this case falls towards the moderate to slightly-higher-thanmoderate range of the duty of fairness spectrum.

First, the Board operates as a “quasi-judicial tribunal” (Rule 1.1.1) with all the powersof a commissioner under the Public Inquiries Act, RSA 2000 c P-39. This points to a higher than moderate degree of procedural fairness.Second, while the Rules expressly contemplate the application of flexibility regarding its procedures, they impose a considerable level offormality regarding the process that governs how hearings are conducted including the level of discretion granted to the Board in itstreatment of evidence.

In my view, the formalistic nature of the Board’s process would reasonably lead someone appearing before it tohave a legitimate expectation that the Board would comply with its Rules unless there was a good reason not to do so. This suggests amedium-high standard of fairness. Third, the Act does not allow a further appeal from a Board decision. This points to a duty of fairnessat the higher end of the spectrum. Finally, the Board’s decision may not affect the Owners’ personal freedom or autonomy but doesaffect their financial interests which in this case are not insignificant.

This suggests a moderate duty of procedural fairness. [115] When dealing with the specific issues the Appellant raises, I must ask “whether the proceedings met the level of fairnessrequired by law”: Workum at para 28, and bear in mind “the process followed will either be fair in the circumstances, or not”: Suncor atpara 24. But I must also be mindful that even on a standard of correctness, not every breach or technical irregularity will amount to areversible error.

Rather, only a “defect in substance that goes to the very core of the tribunal’s jurisdiction” will give rise to a breachsufficiently serious that the rules of natural justice are truly engaged: Edmonton Police Association at para 10. 1. The Stay Application [116]

Section 6 of the Act states an appeal pursuant to

section 5 of the Act does not operate as a stay of the decision appealed fromexcept as the Board may direct. Rule 3.5.1 states “it is important for Appellants to understand that merely serving an appeal does notrelieve them of the obligation to comply with the decision they are appealing”.

Rule 3.4.3 expressly acknowledges a stay application maybe brought as a Preliminary Procedural Application and Rule 3.5.3 stipulates that a party seeking a stay has the burden of demonstratingthat each of the factors required for the granting a stay is satisfied: that there is a serious issue to be tried, that “irreparable harm” wouldoccur if the stay were not granted, that the balance of convenience favors a stay and that a stay is in the public interest. [117] At the end of the first day of the Hearing, the Appellant’s counsel raised the issue of a stay: My clients’ business has been closed since April 15th and it’s costing them $200 a day.

Is there any possibility of setting this aside untilwe can conclude this hearing? Because, really, they have been found guilty before they’ve had the opportunity to have all the factspresented. They don’t have full disclosure. I think its pretty clear that we’ve been operating on a half tank here today. But these delays,these adjournments, these are costing this family money and could put their business out of business. [118] The Appellant recognized “the formal procedural requirements here” but asked the Board to be flexible in respect of theapplication.

Over AHS’ objections, the Board agreed it had “some flexibility to grant a stay if it feels its appropriate”. Initially, the Chairruled the Board would not entertain the application since no formal application had been made and because the Board did not have the“jurisdiction” to consider the issue. However, the Chair reconsidered and ultimately concluded the Board could grant a stay.

Following arecess to consider the issue, the Chair noted that as a formal request for a stay had not filed, the application was denied. [119] At the start of the second day of the Hearing, the Appellant’s counsel renewed the application, noting the length of time herclients’ food operations had been closed. AHS’ counsel asserted the application would have to be fully argued in accordance with the testin RJR – MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311. The Chair agreed to consider theapplication at the end of the day’s proceedings.

At the close of that day, Appellant’s counsel argued her client was not aware of her rightto bring a stay application and it was “appropriate to stay this until the appropriate processes have been allowed to run their course butnot to the detriment of my client”. AHS’ counsel once again objected. Following a recess, the Chair denied the application with “reasonsto be given at a later date”. [120] It appears the Board has not provided the parties with its reasons to deny the Appellant’s stay application.

At page 7 of itswritten submissions, the Appellant argues its stay application “should have been heard and properly considered, with reasons provided tosupport the decision”. [121] In my view, the Appellant’s application was considered several times during the Hearing notwithstanding it was not formallybrought in advance as typically required for a Preliminary Procedural Application. I find that when the application was argued on thesecond day of the Hearing, the Appellant did not adequately address each of the factors with supporting evidence as required by Rule3.5.3.

In this respect, the Board’s dismissal of the application was reasonable. I acknowledge the Board failed to provide written reasons,but I consider this to be a technical oversight which does not affect the substance of the Decision and does not go to the core of theBoard’s jurisdiction or meaningfully engage the rules of natural justice. [122] As with the Board’s oversight in providing written reasons for its dismissal of the stay application, not every proceduralirregularity constitutes a material breach of the Appellants’ procedural fairness rights.

For example, the Appellant argues the absence ofappeal information in the Order constitutes a breach of the duty of procedural fairness. I agree with the Appellant that a template form ofsection 62 order should have included the requisite appeal information. But in this case, the deficiency was rectified when, upon

realizing the appeal information was missing and the appeal link wasn’t working, the Inspector provided the correct information to Ms. Pacholek so that she could proceed with the appeal (as she then did). 2. Disclosure [ 123 ] In a letter to the Appellant dated May 3, 2021, the Chair advised the Hearing would take place on May 11, 2021 and that the parties should provide their disclosure to the Board by May 7, 2021. [ 124 ] At the Appellant’s request, the Hearing was adjourned.

By way of letter dated May 10, 2021, the Chair advised the parties that disclosure should be provided by May 12, 2021, and that the Hearing would be conducted on May 18, 2021 [ 125 ] AHS maintains its disclosure was provided electronically to the Appellant on May 7, 2021. Each document was individually separated and was downloadable through an on-line portal. On May 12, 2021, AHS provided the Appellant with a reformatted version of its disclosure as one single downloadable PDF document of 410 pages.

On May 19, 2021, AHS e-mailed disclosure to the Appellant’s counsel. [ 126 ] On the first day of the Hearing, the Appellant’s counsel advised the Board Ms. Pacholek experienced difficulties downloading AHS’ disclosure materials in advance of the Hearing. She stated she was at an “extreme disadvantage” because “I literally had two days to prepare”, that “AHS is in a privileged position today because they actually did have time to prepare”.

However, while she stated she did not have a copy of the disclosure package, she said “I’m willing to proceed without it”. [ 127 ] A discussion ensued between the Chair and the parties’ counsel regarding disclosure issues. The Chair observed “the parties are not prepared to proceed really today and conclude everything” but nevertheless allowed the Hearing to proceed when the Appellant’s counsel stated “I’m ready to go... I need to argue this, please” and “I would just really like to start”.

The Hearing commenced on the proviso that further disclosure would be exchanged between the parties and provided to the Board. [ 128 ] On the last day of the Hearing, the Appellant’s counsel once more raised the disclosure issue: ...the problem with this process is that my client has not had the opportunity to give full answer in defence to this case. Because what happened is that she had a small preliminary hearing, but she has never had the opportunity to speak freely and submit all the evidence. I found myself in a situation...where I had to run a hearing before I had any disclosure.

I had to question my client before I had any documents from AHS. We showed that AHS’ system of providing documentation is deficient, and we’ve proved that. So, regardless, we tried to be like a cat and land on our feet here. But when we got the documents was after I questioned my client...but the reason for all these objections is because I can’t question my client on all of the evidence that they have put before the Appeal Board.

So I guess when I look at this, I think of access to justice and I think of fairness. [ 129 ] Upon being asked by the Chair “how would you like to see things progress today?” the Appellant’s counsel replied, “I would like to just complete my questioning [of the Inspector] and submit our closing arguments”. [ 130 ] It appears Ms. Pacholek experienced some difficulties downloading and accessing AHS’ disclosure, although I understand she was able to download some of the documents.

However, there is insufficient evidence before me to establish that AHS’ method of providing its disclosure was technically cumbersome or that, given a receiving party’s access to technological resources, otherwise inappropriate. In any event, the Appellant’s counsel chose not to seek an adjournment of the Hearing as she could have done in accordance with Rule 3.4.5 which allows a party to bring a Procedural Preliminary Application to adjourn the hearing or to direct any party to produce documents in its possession relevant to the appeal.

When offered several opportunities to adjourn the Hearing to allow for disclosure, the Appellant’s counsel demurred and instead, chose to carry on. [ 131 ] The Appellant argues at page 7 of its written submissions that it: “did not receive disclosure of the exhibits, which were entered while AHS counsel questioned the witnesses. The Complaints were not disclosed until the 3 rd day of the hearing...”. [ 132 ] I accept that for technical reasons, Ms. Pacholek had difficulties downloading and accessing AHS’ disclosure.

The Appellant’s counsel did not receive AHS’ disclosure until the end of the second day of the Hearing. There were other disclosure issues that arose throughout the Hearing such as matching up the document numbers to ensure everyone was looking at the same document during questioning.

However, my review of the Hearing transcript shows the Chair was alive to the disclosure issue and provided the Appellant’s counsel with the necessary accommodations. [ 133 ] The Appellant’s decision to carry on in the face of the Chair’s adjournment offer constitutes a waiver of any procedural entitlement it was properly entitled to rely on. The Appellant accepted the choice and cannot now at this stage raise the disclosure issue as a ground for review. 3. The Manager’s Evidence [ 134 ] On the first day of the Hearing, AHS’ counsel sought to examine the Manager regarding his May 14, 2021 inspection.

Throughout that day, the Manager had attended and observed the proceedings. Appellant’s counsel objected to the Manager being examined, stating: But I’m just not certain I’m comfortable with the extra witness. Because my understanding from the beginning of the hearing was that [he] was here to observe only. So if he wants to play an administrative role, I’m comfortable with that.

But I haven’t had a chance to consider what [he] might say in testimony, so I ask that we don’t admit any further witness at this point. [ 135 ] The Chair allowed the Manager to testify and stated that Appellant’s counsel was entitled to “object at points where you feel it’s necessary”.

[ 136 ] Later in the Hearing, the Appellant’s counsel reiterated her objections about the Manager having given evidence: ...we had an observer last time, [the Manager], and normally if this was a court proceeding, that observer would not then turn into a witness. And the reason for that is because that witness can then, having seen the proceedings, kind of tailor their evidence.

And we allowed that because there has been a lot of accommodation for us. [ 137 ] On the last day of the Hearing, AHS’ counsel invited the Board to question the Manager (as the Board had the right to do with respect to witnesses appearing before it). The Appellant’s counsel renewed her previous objections and argued the Manager should not be allowed to answer questions as he had already given evidence.

The Chair acknowledged the Manager’s status had changed from observer to witness and the Board declined to ask him any further questions. [ 138 ] The Appellant objects to the Manager being allowed to give evidence after he had been allowed to observe Ms. Pacholek and the Inspector give their evidence. In my view, this is a peripheral issue that does not materially impact procedural fairness. AHS called the Manager for the limited purpose of testifying about his May 14, 2021 inspection and did not ask him any questions about the April 7, 2021 inspection.

In any event, the Board adopted the Inspector’s evidence, which provides a first-hand account of her observations on April 7, 2021. Consequently, the Manager’s evidence simply corroborated the Inspector’s testimony and, as far as I can tell, was not material to the Board’s findings of fact and ultimate reasoning. [ 139 ] The Appellant further submits it was denied the opportunity to admit an audio recording of a conversation between the Owners and the Manager. However, the transcripts indicate that when AHS’ counsel objected, the application was abandoned: Appellant’s counsel: Okay.

I have a recording of that conversation, if the Board would like me to submit that. ... AHS’ counsel: ...I’m going to object to that. The respondents have not had an opportunity to listen to or to consider this evidence. I would object to it being admitted. Appellant’s counsel: Okay. Thank you. Those are my questions for [the Manager]. Thank you. (transcripts, page 147, lines 11-20). 4. Admissibility of the Till Receipts [ 140 ] On the first day of the Hearing, the Board admitted into evidence photographs of the till receipts taken during the April 29, 2021 inspection.

The Appellant’s counsel did not object at the time although she subsequently sought to have the receipts excluded pursuant to

section 4.7.3 of the Rules on the basis that these were taken without the Owners’ permission and

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