Adam Skelly, Part 6: The Final Arguments

It’s been years, but the long overdue challenge from Adam Skelly of the Reopening Ontario Act (R.O.A.) is finally set to be heard at the Ontario Superior Court in Toronto.

Currently, he’s awaiting sentencing on criminal charges that resulted from keeping his restaurant open in late 2020. This was done in defiance of the dictates of Ontario Premier Doug Ford, and Medical Officer of Health, Eileen De Villa. What happens next week in Civil Court will impact that.

If the challenge is upheld, then presumably the criminal charges will be stayed or dismissed.

If this case is thrown out, then sentencing goes ahead

See parts 1, 2, 3, 4 and 5 for background information.

We get to the various Factums, or final arguments of the parties: (a) Skelly; (b) Ontario; and (c) Toronto and Eileen De Villa. While there are plenty of other documents filed, these provide a snapshot of how the case is supposed to play out.

Skelly: Measures Were Heavy-Handed, No Scientific Basis

6 expert witnesses are here to back up his position
No evidence that closing restaurants or prohibiting peaceful assembly would have meaningfully reduced COVID-19 transmission
City and Province were giving conflicting directions in 2020
Police illegally blocked peaceful protests and demonstrations
Court shouldn’t “take on faith” that these were necessary
No effort made to examine Charter consequences of lockdowns
De Villa didn’t actually have the authority to issue trespass order
Heavy police presence and fines were designed to “crush”
Ad-hoc, or after-the-fact justifications cannot withstand scrutiny
It’s not just this case, but a challenge to the R.O.A. itself, passed in 2020

Of course, this isn’t everything, but addresses some of the major points in Skelly’s Factum that are to be brought up at the hearing.

Ontario Wants Case Thrown Out On Procedural Grounds

Application amended frequently, and now hard to deal with
This is a collateral attack (repeat challenge) to administrative orders
Skelly has private standing to bring case, but not public interest standing
Skelly is (also) challenging provisions that didn’t apply to him
Challenge should have been via Health Services Appeal and Review Board
R.O.A. is permitted under broader Quarantine Act (which is Federal)
R.O.A was not vague, arbitrary, overbroad or grossly disproportionate
No Charter violations for Skelly took place
If Skelly’s rights were violated, it was justified under s.1 of the Charter

The arguments from the Ontario Government are an interesting contrast to those of Adam Skelly. Instead of presenting evidence for justification, there are typical grounds raised to dismiss over procedural concerns.

City Of Toronto Raises Similar Objections As Ontario

Application is a repeated challenge to settled matters (abuse of process)
Judicial Review brought in wrong Court
Judicial Review filed too late, and out of time
None of this actually violated Skelly’s Charter rights
Evidence presented doesn’t establish breaches of most Charter rights
If rights were violated, then s.1 justifies it
Under existing legal framework, measures were legal and reasonable

Just like with the Provincial counterpart, the City of Toronto and Eileen De Villa largely avoid the case that Skelly has brought. The Factum asks the Court to dismiss for other reasons.

Anyhow, that is how things are shaping up. We have an Applicant with potentially a very strong case, facing Respondents who would prefer to talk about other things. The hearing is to take place over 3 days, and should be interesting.

It would also be nice to finally deal with former counsel, Michael Swinwood. He is almost singlehandedly the reason this case was not heard in 2021.

COURT DECISIONS:
(1) Skelly – Restraining Order Deferred Matter
(2) Skelly – Restraining Order Decision, December 2020
(3) Skelly – Criminal Court Limits What He Can Post Online
(4) Skelly – Judge Lacks Jurisdiction To Hear Case, June 2021
(5) Skelly – Costs Of $15,000 Ordered For Failed Motion
(6) Skelly – Costs From 2020 Kimmel Decision, Previously Deferred
(7) Skelly – Motion For Security For Costs Decision, September 2023

2020/2021 COURT DOCUMENTS:
(1) Skelly – Application Record Restraining Order (Michael Swinwood)
(2) Skelly – Notice of Constitutional Question (February)
(3) Skelly – Amended Notice Of Constitutional Question (June)
(4) Skelly – Book of Transcripts – Respondents (Applicants)
(5) Skelly – Book of Transcripts – Respondent on Motion – HMTQ
(6) Skelly – 2021 Motion Factum
(7) Skelly – 2021 Motion Amended Factum – Respondents (Applicants)
(8) Skelly – DeVilla Transcript
(9) Skelly – 2021 Motion Reply Factum