Last and final legal action update

Some six months after a disappointing day in court, the final decision about our judicial review was finally released in April. It has been a long time since our last update, in which we detailed how our counsel, Naomi Sayers, was preparing for court. Our day in court was Monday, October 4, 2021, nearly a year after we started this whole process. We had been waiting until the written decision to post about our thoughts about the court day, so in this, our last and final judicial review update, we offer our reflections on both.

The key issue in court was whether our judicial review was moot (i.e., practically irrelevant, purely academic) because the particular regulations we were challenging had been revoked in November 2020 and replaced with new regulations. In our view, these and other subsequent pandemic-related public health regulations still did not provide strippers with any means to be consulted in the development or enforcement of safety protocols, or to access information about strip clubs’ COVID-19 safety plans, which were our main concerns and why we continued with the judicial review. Over the course of an hour or two, our counsel attempted to convince the judges that they should still hear the merits (i.e., main arguments) of our case in spite of the fact that the specific regulations we were initially challenging were no longer in force. Unfortunately, they agreed with the provincial government’s lawyers who argued that, since our application had become moot, “the court should decline to hear it on the merits” (WSTS v. Ontario, 2021 ONSC 6736, para. 4)1 – a response apparently consistent with previous applications regarding COVID-related regulations that have been repealed. In other words, we were dismissed. This means that our counsel was not even allowed to speak about our ongoing concerns about how strippers are overlooked in government responses to the pandemic.

On that day, we felt unheard by a room of mostly middle aged to older white men who appeared to think our application was, at best, silly and ill-advised, and at worst, a waste of government resources. We also felt that some of the comparisons being made, for example between strippers and other workers such as personal trainers, did not reflect any acknowledgment or understanding of the stigma faced by sex workers. In short, we were deeply disappointed at not having the chance to have our concerns heard in spite of all the preparation, time and thought put in by our counsel and our affiants. As we noted in an earlier update, our counsel, with the help of several hard-working students, prepared us for cross-examinations last summer only to later find out that the government was not going to cross-examine anyone, which meant they put in even more work to pivot to a new strategy and prepare arguments on the merits of the application as well as why it should be heard.

Other groups have made similar argument and have also been dismissed – even the Ontario Nurses’ Association (ONA), who did have their merits heard, failed to convince the justices that the government’s lack of recognition of and action against asymptomatic and aerosol transmission left them under-protected against COVID-19.2 On this analogous judicial review, we note that the government could also have avoided the ONA taking them to court by consulting with the affected workers, who like strippers comprise a predominantly female workforce (that also includes former strippers). That such a claim was also dismissed makes us feel less alone but no less disappointed, not only in the outcome of our judicial review but in the province’s treatment of vulnerable workers in general.

We knew once court concluded on October 4 that our case had been dismissed; we also knew that both our counsel and opposing counsel were seeking costs. But only the written decision would detail how much we would have to pay, so we had to wait; all we knew at that time was that the GoFundMe would very likely not be enough to cover it, since donations had diminished over the long, drawn out timeline of the judicial review and we had sent them to our counsel to cover costs such as those we detailed in update 3. Thankfully, we were able to secure a grant from the Urgent Action Fund to cover our legal costs, even though we were still uncertain of the amount when we applied, or if the maximum the organization offered would be able to cover it. In the end, we were ordered to pay $5,000 and had just enough. Sending the cheque this week was kind of maddening but also a relief that this whole thing is finally over. As with a crappy customer or a bad night at the club, we are cutting our losses and motivating ourselves to move forward.

We would like to thank everyone who helped us in this legal action: our legal counsel, Naomi Sayers, who generously donated her time, effort and wisdom; our affiants, who bravely put their experiences of dancing and management in the pandemic on paper; our GoFundMe donors – 50 awesome people who together donated $3,285 which went to paying court costs for things like filing motions; and, most recently, to the Urgent Action Fund, which gave us a grant for the money needed to pay the costs awarded against us in court and move on to other more fruitful advocacy avenues (and, really, to continue to exist as an organization!).

So what do we take from this intermittently slow and fast, wild and complicated legal ride? Looking back on the whole journey, we are glad that we won on the question of anonymity for our affiants, and even happier that that decision sets a precedent could make it easier for people who are marginalized and stigmatized to access justice (or at least have a day in court). At the same time, this experience really dashed our faith in the courts as an avenue for people to defend their rights and wellbeing. As a result, we will not be appealing this matter. We have decided our time is better spent focusing on advocating through less adversarial, time consuming and expensive means. We would rather spend our energies developing and expanding our organization than writing affidavits and being stressed by the confusing mix of long waits and tight turnarounds, and the dismissive and disrespectful attitudes shown to us and or counsel, throughout this process.

So now, we are planning on channeling our advocacy efforts to (we hope) more obtainable goals such as talking to municipal licensing authorities about improving the health, safety and rights information made available to strippers. Without the judicial review to stress us out and drain our energy, we are also looking forward to more social and educational events, which we will be having over the next few months online and, if possible, in person (with all necessary safety measures). So check our website and Twitter for the upcoming events we will soon be announcing, and contact us if you want to attend or join our organizing committee.

Notes

  1. The decision is available on CANLII, here. Although publicly available documents currently say that the decision was released on October 13, 2021, our counsel has asked that the record be changed to reflect when the decision was actually released: April 14, 2022. This is so that the record accurately reflects how long (so long!) it took for the written reasons to be released.
  2. For more details about the ONA case, see their February 25, 2021 media release and this CBC article.

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