Christopher Scott, Pawlowski brothers win appeals against Alberta Health Services

Artur Pawlowski speaks in a video recorded on Saturday, May 8, 2021, as he and his brother Dawid are arrested. Credit: Artur Pawlowski/Facebook

An Alberta restaurant owner, a Calgary street preacher and his brother have won an appeal against Alberta Health Services.

The appeal was launched in connection with three orders by Court of Queen’s Bench Justice Adam Germain that found Christopher Scott (Whistle Stop Cafe owner), Artur Pawlowski and Dawid Pawloski in contempt of a May 6, 2021 injunction granted to Alberta Health Services. The injunction prohibited public gatherings as a result of the COVID-19 pandemic.

The Pawlowskis then filed an appeal of the contempt findings and the sanctions. Scott only appealed the sanctions.

Mobility and qualified speech provisions set aside

In an appeal decision published on Thursday, the Court of Appeal chose to set aside the mobility and qualified speech provisions included in all three of Germain’s orders.

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These provisions previously prohibited the three men from leaving the province except to attend family emergencies or health matters. The provisions also required all three men to include a disclaimer when speaking against government orders or recommendations in a public gathering and on social media.

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According to the court, the provisions were not requested by AHS and the three men were not invited to make submissions before Germain imposed them.

The court also said AHS advised in writing that it would consent to an appeal order to remove the provisions.

Scott’s sanctions set aside

In Thursday’s decision, the appeal court decided to partially set aside Scott’s sanctions, saying Germain’s orders affected the restaurant owner’s constitutional rights and require the panel to think of new sanctions for the cafe owner.

Scott previously argued that Germain’s sanctions were excessive, disproportionate and violated his rights to mobility and freedom of expression.

The new sanctions include three days in jail (already served), a $10,000 fine and eight months probation (already served).

“We are satisfied that the procedure followed by the chambers judge in imposing the mobility and qualified speech provisions and the effect of those sanctions on Mr. Scott’s constitutional rights amounts to an error in principle that requires us to consider afresh the appropriate sanction to address Mr. Scott’s contempt,” the panel wrote.

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Pawlowski brothers win appeal

The appeal court agreed with Artur and Dawid Pawloski’s argument that the injunction was not sufficiently clear and unambiguous, as stated in Thursday’s decision.

Since the court set aside the contempt findings against both Pawlowskis, the sanctions also failed.

The court ordered the Pawlowskis be reimbursed for the fines paid and also set aside the cost awards against the Pawlowskis — roughly $15,733.50 — and ordered AHS to pay costs to them.

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