Whistle Stop Café owner loses another legal battle, denied permission to appeal

Alberta Health Services shut down the Whistle Stop Cafe near Mirror on May 5, 2021.

Christopher Scott, the owner of the Whistle Stop Café, has lost another legal battle after being denied permission to appeal a scheduling order that he claimed could have led to him avoiding a contempt of court conviction in June.

Alberta Court of Appeal Justice Jolaine Antonio rejected Scott's argument that the injunction against him should be thrown out because his legal counsel was not present while the judge was hearing the injunction application. 

"Mr. Scott's effort to cloak the scheduling question in principles of justice depends on an assumption that [his] argument is correct. As that argument has not yet been heard in the court below, I cannot make that assumption," reads Antonio's ruling. 

Scott was found guilty of contempt of court last month.

Antonio also noted the Public Health Act allows interim orders to be made without the other party's lawyer being present.

She also shot down Scott's argument that had he successfully argued for the injunction to be thrown out, his contempt of court proceedings would have unfolded differently. 

"I am not willing to find prejudice by contrasting reality with hypothesis." 

Antonio noted a parallel application for a stay proceeding against Scott was abandoned.

Scott was arrested on May 8 during a rally near his café in Mirror, Alta., about 150 kilometres south of Edmonton.

The rally was deemed to be in violation of a May 6 injunction order applied for and obtained by Alberta Health Services under the Public Health Act against Scott and the café ahead of the rally two days later.

Scott's appeal argument centred on a May 13 scheduling order where his lawyer argued that because he wasn't in court when the injunction application was being heard, the order against Scott should be thrown out. 

That argument was one of several advanced by Scott's lawyer but Antonio noted the judge "would not hear the application 'piece by piece.'" 

When given the choice to proceed with the entire application or delay until a later date, Scott's lawyer chose to adjourn proceedings without setting a date to resume. 

"Even an appellate court cannot reverse the flow of time; as such, appeals from scheduling and case-flow orders can be pointless or detrimental," reads Antonio's ruling, noting "orders of this kind are reviewed deferentially and are rarely varied on appeal."

Scott is scheduled to be sentenced later this month for his contempt of court conviction.