In three recent decisions, Ontario Courts have rejected challenges to COVID-19 pandemic restrictions put in place by the Ontario government.
Background
On March 17, 2020, the Premier of Ontario declared an emergency for the whole of Ontario pursuant to s. 7.0.1 of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (the “EMCPA”). On March 24, 2020, the Ontario Legislature passed O. Reg. 82/20, which ordered the closure of non-essential businesses and placed conditions on the operations of other businesses and organizations. This regulation has since been amended over 20 times.
On July 24, 2020, the Ontario Legislature enacted the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (the “ROA”), which continues regulations made under the EMCPA.
On November 23, 2020, Toronto and Peel Region entered the “Grey Zone” lockdown level prescribed by O. Reg. 363/20, Schedule 1. O. Reg. 82/20 governs areas in the Grey Zone lockdowns by setting out a variety of public health measures designed to address the spread of COVID-19, including the closure of non-essential businesses, subject to certain exceptions.
A province-wide lockdown went into effect on December 26, 2020 which has to remain in place until at least January 23, 2021. The Ontario Government subsequently imposed further restrictions.
Hudson’s Bay Company’s application for judicial review
The Hudson’s Bay Company (“HBC”) brought an application for judicial review challenging s. 2(1)3, Schedule 2 of O. Reg. 82/20, which permits “discount and big box retailers selling groceries” to remain open during lockdowns. HBC argued that this provision draws an irrational distinction between its stores and stores such as Walmart because, other than groceries, the types of merchandise that both stores sell are essentially the same.
In Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, the Ontario Divisional Court confirmed that absent a challenge under the Canadian Charter of Rights of Freedoms (the “Charter”), the focus of the application for judicial review was narrow. It was not the Court’s role to decide whether O. Reg. 82/20 is effective, overly broad, or unduly restrictive, but rather simply to determine whether the provision at issue is authorized by the ROA.
The Court cited the Supreme Court of Canada’s decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 for the test for challenging a regulation as ultra vires its enabling Act. This test provides that a “successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate”. The Court further confirmed that the Supreme Court of Canada’s more recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 has not changed the test for challenging the vires of regulations.
The Court found that the EMCPA gave the Lieutenant Governor in Council very broad powers to make orders in the context of an emergency for the purpose of protecting the health and safety of Ontarians, including the power to close businesses. While the ROA ended the declaration of emergency under the EMCPA, its intent “was clearly for the Province to maintain existing orders and amend them as necessary, as if the EMCPA was still in effect, depending on the state of the pandemic in different parts of the province”. The purpose of the EMCPA and the ROA is to give the Province broad discretion to make orders that reduce or mitigate the public health harm Ontarians face during the pandemic, while balancing the goal of reopening the economy.
The Court found that s. 2(1)3, Schedule 2 of O. Reg. 82/20 is consistent with this purpose. The inclusion of “discount and big box retailers selling groceries” among the list of retailers that may remain open was not about making items such as clothing and furniture available to the public, but rather to give members of the public access to additional retail venues for buying groceries. The fact that the provision may be overly inclusive does not mean that it fails to fall within the purposes of the ROA. The Court acknowledged that the wisdom and efficacy of allowing big box stores which happen to sell groceries to remain fully open, thus generating more in-store customer traffic, is open to question and may lead to behaviour that is inconsistent with the broader policy goal of reducing community transmission in lockdown zones while permitting the in-store sale of essential items. However, it was not the Court’s role on a judicial review to make determinations on the wisdom and efficacy of policy choices that are otherwise within the scope of the Lieutenant Governor in Council’s executive authority. Furthermore, removing the “selling groceries” limitation and opening the exemption to all retailers, as HBC urged the Court to do, was a decision for the government, and not the Court, to make.
The Court also found that the distinction between HBC and big box stores that sell groceries was not impermissible. The Court held that such a distinction “may seem unfair to HBC and other retailers that do not sell groceries, but unfairness is not a legal ground to challenge this regulation” and that the purpose and powers of the ROA were very much aligned with the scope of O. Reg. 82/20. HBC also conceded that the provision at issue was not motivated by an improper purpose or to target or single out HBC.
Finally, HBC argued that the Province had not put forward any evidence to justify its distinction between big box stores that sell groceries and those that do not. HBC filed extensive evidence aimed at demonstrating the unfairness and ineffectiveness of the provision, and that the known risks of COVID-19 transmission in retail stores were low, and no higher than in other big box stores that sell groceries. Once again, the Court emphasized that its role was not to determine the effectiveness or wisdom of O. Reg. 82/20. As determining the vires of a regulation is an exercise of statutory interpretation, evidence may be helpful to understanding the factual context in which a regulation was made, but, absent a statutory requirement to do so, governments have no obligation to provide evidence to justify the effectiveness of their policy choices. The Court dismissed HBC’s application, concluding that s. 2(1)3, Schedule 2 of O. Reg. 82/20 is intra vires because it is authorized by the ROA and related to the purposes of the Act.
Church’s application for interim injunction regarding gathering limits
In Toronto International Celebration Church v. Ontario (Attorney General), 2020 ONSC 8027, the Ontario Superior Court of Justice dismissed an application for an interim injunction to exempt a church from some of the gathering size restrictions of O. Reg. 82/20.
The Applicant, the Toronto International Celebration Church (the “Church”), was an evangelical church in Toronto with a large facility that could hold 1,000 people. The Church brought an application to strike down O. Reg. 82/20, to the extent that its “stage 1” restrictions prohibit more than 10 people from attending a religious service in person, as an unjustified infringement of s. 2(a) of the Charter, which guarantees the freedom of conscience and religion. The Church also sought an interim injunction to allow it to hold in-person religious services subject only to the 30% capacity restriction that applies to regions in “stage 2” of O. Reg. 82/20.
The Court applied the three-part test for interim injunctions, which in this case required the Court to consider whether: (1) the Church’s Charter application raised a serious issue to be tried; (2) the Church and its members would suffer irreparable harm if the injunction were to be refused; and (3) the balance of convenience favoured granting the injunction.
For the first element of the test, the Court was satisfied that there was a serious issue to be decided in terms of whether the government carefully tailored the restriction to ensure it impairs freedom of religion no more than is reasonably necessary, and whether the means chosen to minimize the spread of COVID-19 fall within a range of reasonable alternatives.
The Court was also satisfied that the Church and its members would suffer irreparable harm if the injunction were to be refused. The Court accepted the Church’s evidence on the importance of congregational prayer and in-person fellowship to the religious practices and beliefs of its members. Irreparable harm means harm that cannot be quantified in monetary terms or cannot be cured, and the Court agreed that there is simply no way to quantify or compensate the Church or its members for the lost opportunity to worship and celebrate together.
However, the Court found that the Church failed to satisfy the final element of the test, namely that the balance of convenience favoured granting the injunction. The Court noted that this case was particularly difficult for making this determination because there is a strong public interest in both protecting religious freedom and protecting the health of Ontarians during the pandemic.
Nevertheless the Court was satisfied that the harm that would be caused by granting the injunction in light of the risks posed by the pandemic would outweigh the harm to the Church’s religious freedoms. Although the Church was only seeking an individual exemption, the case had the potential to serve as a precedent for other religious institutions.
Furthermore, although the research and knowledge on the spread of COVID-19 is still evolving, the current understanding suggests that settings most associated with COVID-19 transmission involve close proximity of people from different households for prolonged periods of time. The decision emphasized that “courts should not lightly interfere with the government’s ability to enforce laws duly enacted for the public good before a full hearing on the constitutionality of the provisions”.
As a result, the application for an interim injunction was dismissed, although the Church’s Charter application will proceed to a hearing on its merits. That decision will have important implications for religious institutions seeking to maintain in-person services during the pandemic.
Retail appliance store did not qualify for “hardware store” exception
In Canadian Appliance Source LP v. Ontario (Attorney General), 2020 ONSC 7665, the applicant operated five retail appliance stores in Toronto and Peel, areas which were designated as “grey zones” on November 23, 2020. Under O. Reg. 82/20, retail stores located in grey zones are not permitted to allow customers into their showrooms, subject to certain exceptions. The applicant sought a declaration that it qualified for an exception because it is a “hardware store” for the purposes of O. Reg. 82/20, or under alternative exceptions for businesses that are part of essential supply chains.
Given that the applicant was not challenging the constitutionality, validity, or necessity of the COVID-19 legislation, the Ontario Superior Court of Justice commented that the matter before it was one of statutory interpretation and application and held that there was no ambiguity in what the Legislature meant or intended to mean when it specified that a “hardware store” in a lockdown zone may remain open for retail sales to the public. The Legislature did not prescribe any special meaning to the words “hardware store”, so they were to be understood in their conventional, everyday sense. By “hardware store”, the Legislature meant a retail store that a person through common experience and observation would recognize as a retail hardware store.
The Court held that the applicant’s business would not be recognized as a hardware store and the fact that hardware stores sell appliances does not mean that the applicant’s business is a hardware store, as department stores and other businesses also sell appliances. The applicant did not sell other products commonly found in hardware stores, such as building supplies, tools, plumbing and electrical supplies. The Court also found that the Legislature did not intend for retail appliance stores to fall within the exceptions for businesses within essential supply chains. Accordingly, the application was dismissed.
Takeaways
These cases demonstrate the tension between the serious public health concerns of the COVID-19 pandemic and the economic and other impacts of the lockdown restrictions implemented to mitigate the effects of the pandemic and that up to now, the Courts have tended to defer to the government and have upheld 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.