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North Bay decorator still in court battle over COVID-19 pandemic restraining order

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A North Bay decorator who made headlines during the COVID-19 pandemic is still involved in court battles related to her refusal to follow orders from the local health unit.

After repeated warnings from the North Bay Parry Sound District Health Unit, Alexandra Stewart was ordered to close her business to all but online sales in a motion dated April 17, 2021.

Stewart repeatedly refused to enforce COVID-related restrictions requiring customers to wear masks and enforce physical distance requirements.

A restraining order was granted May 21 of that year to enforce the health unit’s orders. Less than a month later, on June 11, the order was lifted as the province eased pandemic rules.

That didn’t end the court battle, however, as Stewart made an application to be compensated for “damages for economic injury allegedly sustained” by her business, Stewart’s Decorating, and related court costs. Both Stewart and her corporation were listed on the application.

In an unusual move, her lawyer applied to the Superior Court of Justice for permission to cross-examine health unit officials about the order without first providing any evidence or information explaining the arguments her lawyer planned to make on her behalf.

The reason? Stewart is still facing Provincial Offences Act cases related to her refusal to follow pandemic directives. She argued that delivering evidence in support of her application would violate her right to silence in the POA cases.

“Her refusal to depose her evidence at this time is explained in her desire to protect her right to silence,” the court decision said.

“Not guarding her right to silence, the argument continues, could result in non-compensable prejudice to both respondents.”

BREACH OF FAIRNESS

In response, the health unit argued that allowing their staff to be cross-examined without any information about the arguments Stewart’s lawyer planned to make would be a fundamental breach of fairness.

In its decision, the court ruled that Stewart may have the right to silence in her POA case, but the rules still require that evidence be produced for the current case before the courts unless there’s a reasonable argument to the contrary.

“In the context of these circumstances, I find that the right to silence protecting Ms. Stewart … does not outweigh the prejudice that would be suffered by the (health unit),” the court said.

If Stewart’s lawyers are truly concerned about being prejudiced in the POA case, the court said it should wait until the POA case is completed before proceeding with the current application.

“The fact remains that, for all of the above reasons, hanging their hat on the right to silence would split the case, and is clearly a tactical strategy, which does not constitute a reasonable or adequate explanation,” the court said.

Read the full decision here.

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