Background
The Government of Canada implemented a mandatory hotel stopover policy which requires air travellers to stay in government-authorized hotels at their own expense for three days upon entering Canada, and then, after taking a COVID-19 test, complete the remainder of their 14-day quarantine at home.
The applicants brought a motion for an interlocutory injunction to suspend this policy pending the results of their constitutional challenge against the policy, in which they argued that the policy violates their rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and that they could safely quarantine at home.
The respondent emphasized the global impact of the COVID-19 pandemic and the severe risk to public health in Canada, arguing that the hotel stopover policy reduces the introduction and further spread of COVID-19 and the new variants of the virus by decreasing the risk of importing cases from outside the country.
The Federal Court’s decision
The Federal Court applied the three-part test for interim injunctions, which requires that: (1) the constitutional challenge raises a serious issue to be tried; (2) the applicants will suffer irreparable harm if the injunction is not granted; and (3) the balance of convenience favours granting the injunction.
On the first part of the test, the Court found that there was a serious issue to be tried with respect to the applicants’ arguments that the hotel stopover policy violated their rights under sections 7 and 9 of the Charter. The Court noted that this was not a pronouncement on the merit of the applicants’ arguments, rather it simply found that these arguments should not be dismissed at this early stage of the proceeding. Given this finding, the Court stated that it was unnecessary to comment on the applicants’ other arguments under sections 6, 10(b), and 11(d) and (e) of the Charter.
On the second part of the test, the Court noted that irreparable harm is generally described as a harm that cannot adequately be compensated in damages or cured. The harm cannot be based on mere speculation, but rather must be established through evidence at a convincing level of particularity. This evidence must demonstrate that there is a high likelihood of the harm occurring, and not merely that it is possible.
The applicants characterized the hotel stopover policy as a mandatory detention in a federal facility, which would cause them “devastating emotional, relational, and spiritual harm” for which they cannot be financially compensated.
However, the Court found that the applicants failed to provide evidence to support their claim that the hotel stopover policy would cause them the harms they alleged. The Court held that it was not self-evident why a short stay in a hotel prior to a further period of quarantine at home would inevitably cause such harms. Further, the Court also noted that while the applicants had a Charter right to leave and return to Canada, they were all aware of the restrictions which were in place when they left or which came into effect while they were away. None of them could claim to be surprised by the stringent public health measures imposed on returning travellers due to the evolving nature of the COVID-19 pandemic and the variants of concern. Accordingly, the Court held that the applicants failed to establish irreparable harm.
On the third part of the test, the Court noted that an assessment of the balance of convenience is necessary to identify which party would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits. This element of the test takes on special significance in a case involving a request to suspend the operation of a law, regulation, or Order-in-Council, as the Court must proceed on the assumption that the law is directed to the public good and serves a valid public purpose.
The applicants tried to rebut this presumption by arguing that the hotel stopover policy is not effective, not supported by the scientific evidence, and not justified in a free and democratic society.
The Court rejected the applicants’ arguments, finding that the evidence amply supported the respondent’s position that the hotel stopover policy provides an additional layer of protection against the importation and spread of COVID-19 and its variants into Canada, and that it is a rational precautionary measure made in response to a real and imminent threat to public health. The Court found that there was ample support in the evidence for the respondent’s assertion that any suspension or disruption of the existing regime would have a serious, immediate negative impact on public health.
Accordingly, the Court concluded that it would not be just and equitable to grant the interlocutory injunction, and dismissed the motion.
Takeaways
This case demonstrates the continuing tension between the serious public health concerns of the COVID-19 pandemic and concerns about the impact of lockdown restrictions on individual rights and freedoms. This case mirrors another recent decision, Canadian Constitution Foundation v. Attorney General of Canada, 2021 ONSC 2117, where the Ontario Superior Court of Justice similarly refused to grant an injunction to suspend the mandatory hotel stopover policy. Although the final results of these constitutional challenges remain to be seen, the decisions which have been released so far suggest that Courts are continuing to defer to the government and public health concerns by upholding the emergency legislation implemented in response to the COVID-19 pandemic.
Christopher Wirth is a litigation Partner with Keel Cottrelle LLP in Toronto and is the Past Chair of the Administrative Law section. Alex Smith is an associate with Keel Cottrelle LLP in Toronto and is a member of the Executive of the Ontario Bar Association’s Education Law section.