This week, the Quebec Court of Appeal refused to hear the appeal of a February 8, 2021 Quebec Superior Court case challenging the current COVID-19-related curfew.
The court had rejected a lawyer’s request for a temporary and partial stay of the application of the curfew which was imposed on January 9, 2021 by the Quebec government to fight against the spread of COVID-19. The measure prohibits non-essential travel between 8 p.m. and 5 a.m. in Quebec “red zones”. The lower court rejected the application, explaining that despite the existence of a serious question to be judged, the applicant had not shown serious or irreparable damage. In addition, the court stated that the public interest tipped the balance of convenience in favour of the Attorney General.
We have also previously written about an Ontario decision, in which a court refused to allow a retailer to remain open, after it was forced to shut down by the government due to the COVID-19 pandemic.
HBC Loses Case Against COVID-19 Rules
Additionally, in mid-December 2020, the Hudson’s Bay Company (“HBC”) applied to court asking it to review the province’s decision to temporarily close non-essential retailers in Toronto and Peel Region.
In that case, HBC challenged s. 2(1)3, Schedule 2, of O. Reg. 82/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “ROA”), which provides that “discount and big box retailers selling groceries” are permitted to open. HBC argued that the provision drew an irrational distinction between its stores and stores such as Walmart because, other than selling groceries, the types of merchandise both stores sell is essentially the same. HBC claimed that this allowed big box stores to sell all lines of merchandise while HBC, which sold the same type of merchandise, except for groceries, had to stay closed. It submitted that this was causing economic hardship to HBC and its employees. HBC argued that the distinction was impermissible, and that the court should grant a remedy that would allow HBC’s sixteen stores in Stage 1 regions to re-open. HBC argued that O. Reg. 82/20 was ultra vires the ROA.
In response, the Attorney General of Ontario argued that the closure of big box stores that did not sell groceries was permitted by the wording and purpose of the ROA. It argued that the ROA was meant to provide a flexible approach to opening and closing businesses during the pandemic, and the closure of department stores that did not sell groceries in areas with a higher incidence of COVID-19 was a policy choice permitted by the ROA and it was not up to the court to assess whether the policy choice was effective or wise.
The court dismissed HBC’s application, stating:
“Absent a Charter challenge, the focus of judicial review of a regulation is narrow. It is not the role of the Court to decide whether s. 2(1)3, Schedule 2, of O. Reg. 82/20 is effective, overly broad or unduly restrictive. These are policy choices made by the Ontario government during extraordinary times. The Court’s role is limited to determining whether the provision at issue is authorized by the ROA, which it clearly is. The purpose of the ROA is to balance public health and safety measures with economic concerns during the current pandemic.
O. Reg. 82/20 sets out the restrictions imposed on the parts of Ontario with the highest rates of COVID-19. In those areas, Ontario’s objective is to significantly limit contacts between people for the purpose of reducing the spread of COVID-19 while giving Ontarians access to essential goods such as groceries. Requiring HBC to keep its stores closed to the public while allowing discount and big box stores that sell groceries to open is consistent with these purposes.
We see no basis to grant the application.”
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