A Red Deer judge has ordered that Mirror’s Whistle Stop Cafe comply with a public health order prohibiting serving dine-in customers.
Alberta Health Services issued a public health order to Whistle Stop owner Christopher Scott on Jan. 22 closing the restaurant to sit-down business.
Scott said singling out small businesses for closure while allowing grocery stores to welcome customers was unfair and he pledged to keep serving food in violation of the order.
On Wednesday, a lawyer for the AHS appeared by video link in Red Deer Court of Queen’s Bench asking for an injunction that orders Scott to comply with the health order. The injunction also allows AHS representatives along with a peace officer to inspect without giving prior notice the cafe for compliance.
AHS lawyer Ashley McClelland argued the injunction was needed because allowing Whistle Stop to continue serving dine-in customers is a “public health risk and does represent significant harm.”
The public interest “far outweighs” the diner owner’s interests in staying open for dining.
In opposing the injunction, Scott’s lawyer, Chad Williamson, said there are constitutional and charter issues at stake that should be addressed before ordering the business to stop serving sit-down customers.
The validity of the public health order is “problematic” and involves “regulatory overreach,” said Williamson, who also appeared by video link. Scott was not in court.
Williamson argued the harm done to Scott’s business, which has faced “excruciating financial burdens” during the pandemic, by an injunction is much greater than the potential harm of allowing the cafe to serve diners when other health measures such as mask wearing and physical distancing are being observed.
The government has indicated that should infection rates continue to fall, restrictions on dine-in customers could be lifted as early as Monday. Should that happen the public health order on Whistle Stop would be rescinded and he would be legally allowed to serve seated diners again.
AHS has also not proven that getting an injunction was a “matter of urgency.”
Queen’s Bench Justice Gaylene Kendell said she must weigh the potential harm that could occur if she does not issue an injunction.
“The interest at stake is the health of Albertans and the health of the public,” said Kendell.
She acknowledged that Williamson argued that health restrictions are arbitrary and overly broad. However, if she does not enforce the public health order, other business owners might be encouraged to ignore the rules believing the courts will not uphold them.
“The risk of increased transmission of COVID can result in irreparable harm if people are ill or are dying,” she said.
Whistle Stop can still provide take-out food or curbside delivery despite the order, she noted.
Scott responded quickly with his witty take on the decision on his Facebook page.
“8 or 10 oz steak sandwich, soup or salad to start, veggies, choice of fries and then dessert. Served with a side of injustice, and a helping of garbage, sweeping mandates from people who are never affected by their own rules,” he wrote in a post that soon had more than 200 comments.
Scott’s legal battle is far from owner. Williamson and AHS lawyers will be back in court on Feb. 23 to argue over the validity of the public health order.
The case raises the issue of what governments can do to individuals and their rights under the guise of responding to a public health emergency, said Williamson.
Williamson said he is no conspiracy theorist and does not argue that there is no potential threat to public health by the virus. But he intends to argue that AHS has met the threshold to prove that the potential harm is outweighed by the devastating economic impact on Albertans.