A Windsor, Ontario lawyer who defends clients regarding pandemic regulations said an unsuccessful public health case against him was a waste of tax dollars and public resources.Antoine d’Ailly was charged in December 2020 under the Reopening Ontario Act for not demanding proof from maskless members of the public in his office who claimed a mask exemption. Inconsistencies in the evidence provided November 1 by the Essex County Health Unit's enforcement officer led to the prosecution withdrawing charges mid-trial.D’Ailly said his office did not interrogate people regarding their mask exemption, something the city’s own lawyer advised. Despite following the City Solicitor’s opinion, his policy drew the attention of local enforcement officials.In a memorandum dated August 18, 2020, city solicitor Shelby Askin Hager wrote responses to questions posed to her including, “Can members of the public be asked for proof that they qualify for an exemption?” To this, Hager wrote, “No. This would constitute a human rights infringement.” D’Ailly said this was only one more reason the city should not have targeted him. Despite that opinion, local enforcement officials went ahead and "aggressively enforced masking requirements anyways” he said.“You look at the massive waste of resources on this issue. The health unit was conducting surveillance, they were camped outside of my office, they took this to trial–I think it's all an unnecessary waste of tax dollars…"“I guess this is the pain of being on the right side of law, but on the wrong side of public opinion.”Regulation 82/20 of the Reopening Ontario Act, which was revoked March 16, 2022, states, “For greater certainty, it is not necessary for a person to present evidence to the person responsible for a business or place that they are entitled to any of the exceptions."The local Windsor Essex County Health Unit (WECHU) Order stated that “A Person shall be exempt from wearing a Face Covering on the premises if…Wearing a Face Covering would inhibit the Person’s ability to breathe in any way.”In his legal practice, d’Ailly said he has filed over 30 applications to the Human Rights Tribunal of Ontario, including a couple calling for judicial review because personnel at the human rights tribunal “appear to be skirting the issue of jurisdiction.”“It seems pretty obvious to us that the Human Rights Tribunal in Ontario is doing everything they can to pretend it doesn't have jurisdiction over these types of cases. As soon as they admit they have jurisdiction, their enabling legislation requires them to hold an oral hearing,” he said.“You've got instances where somebody with a signed medical note, stating they have a medical condition which precludes them from being able to wear a mask is being discriminated against by the enforcement of a no mask, no service, no exceptions policy. The tribunal's response is essentially, ‘I don't see how this is within our jurisdiction,’ and then your remaining remedy is to seek judicial review.” It’s an expensive proposition.D’Ailly said this means some people only get the justice they can afford instead of the justice they deserve. He says there are many valid reasons why some people are unable to mask. Some former sexual assault victims had to relive their worst memories when they were told to mask up.“The reality is a lot of these people that were unable to mask endured a lot of trauma by being berated and even assaulted while trying to access essential services. Oftentimes, they don't have the medical evidence that some businesses or even the Human Rights Tribunal demanded. I think there's injustice there.”D’Ailly has some public successes across Ontario under his belt. A judge ruled an elderly Burlington couple did not have to wear masks in their building, despite the condo board’s wishes. A North Bay businesswoman charged for opening her store had charges dropped against her. And, a woman in Wallaceburg was successful after a full day trial resulted in the court dismissing a charge for organizing an anti-lockdown rally in November 2020.Defending fundamental liberties in such cases is important, d’Ailly insisted.“I think more Canadians need to stand up to preserve our hard-won rights” he said.
