Fitness Studio Denied Injunction To Reopen During Pandemic

• Published date: 24 May 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Sport, Government Measures
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

In April 2021, the Province of Ontario declared a second state of emergency related to the COVID-19 pandemic, and issued a province-wide stay-at-home order, which imposed various stringent measures limiting mobility of individuals, restrictions on indoor and outdoor gatherings and restrictions on travel. For many businesses, this has meant that they have shut their doors, as they cannot meet the Province's health requirements to be open to the public.

Pursuant to the Re-Opening Ontario (a Flexible Response to COVID-19) Act (the "ROA"), which continued various orders issued under the Emergency Management and Civil Protection Act (the "EMCPA"), a facility for indoor or outdoor sports and recreational fitness activities may open if it meets certain criteria. These criteria include that the facility be open solely for the purposes of allowing use of the facility by persons with a statutorily defined disability, who have received a written instruction for physical therapy from a regulated health professional and who are not able to engage in the physical therapy elsewhere. A facility for indoor sports and recreational fitness activities may also be open where the facility is used solely for the purpose of providing space for mental health support or addiction support services.

On April 27, 2021, the Acting Medical Officer of Health for the Brant County Board of Health issued a letter to all indoor sports and recreational facilities within the City of Brantford and the County of Brant (the "Instruction Letter"), which addressed compliance with the ROA and stated that "the capacity limit for a facility opening during the above restrictions must be limited to the number of patrons who can physically distance by 3 metres and in any event, cannot exceed 5 persons including staff."

The penalty for failing to comply with the ROA is a fine of up to $100,000 for individuals or $10,000,000 for corporations, for each day or part of each day on which the offence occurs or continues.

Upon receiving the Instruction Letter, the owner of a gym and fitness studio known as "The Fit Effect" determined that it would be impossible to operate his facility with only five persons including staff. He then commenced an application to quash the Instruction Letter and sought an urgent injunction prohibiting the County's Board of Health from enforcing it.

The injunction motion was heard by Justice D.A. Broad in May 2021: The Fit Effect v. Brant County Board of Health, 2021 ONSC 3651 (CanL...