In our previous article dated January 27, 2021, we reviewed three recent cases which demonstrated that the Ontario Courts have tended to defer to the government and have upheld emergency legislation implemented in response to the COVID-19 pandemic. New cases suggest that this trend is continuing, although several legal challenges to the emergency legislation have yet to be decided.
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 cabinet passed O. Reg. 82/20 under the EMCPA, 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 50 times.
In July, 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. In particular, O. Reg. 363/20 under the ROA implemented a regional framework by designating different stages of reopening. O. Reg. 82/20 sets out the rules for regions in “shutdown zones” and “grey zones,” which are subject to the strictest public health measures.
At the federal level, 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, effective February 21, 2021.
Court dismisses application for interim injunction to suspend federal hotel quarantine policy
In Canadian Constitution Foundation v. Attorney General of Canada, 2021 ONSC 2117, the Ontario Superior Court of Justice dismissed a motion for an interim injunction to suspend the federal government’s mandatory hotel stopover policy pending a constitutional challenge brought by applicants represented by the Canadian Constitution Foundation alleging that the federal government’s quarantine rules violate their rights under the Canadian Charter of Rights and Freedoms (the “Charter”).
The 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 no legal basis to support the applicants’ claims of an alleged breach of their mobility rights under section 6 of the Charter, nor was there any legal basis to consider the hotel stopover policy a “punishment,” let alone a “cruel and unusual punishment” for the purposes of the Charter.
However, the Court accepted that the applicants “barely” managed to satisfy this part of the test by raising “the narrowest of serious issues to be tried” under section 7 of the Charter, in that it remained to be determined whether the requirement to quarantine in a hotel at one’s own cost is a deprivation of personal liberty in violation of the principles of fundamental justice.
That being said, the Court repeatedly contrasted the “unsupported” and “subjective views” of the applicants with the scientific evidence produced by the government. The Court noted that the “episodic and anecdotal concerns raised by the applicants barely raise an issue in [the] face of the actual evidence that has been adduced by the government” to support the policy, which was “deeply rooted in science and comprehensive public policy”, and grounded in “the data and the views of those with knowledge and experience studying the problem scientifically, and not just on Twitter.”
On the second part of the test, the Court noted that “irreparable harm” means harm that cannot be compensated by monetary damages at a later time. The Court found that the applicants’ evidence of potential harm was speculative and compensable through monetary damages, meaning this part of the test was not met.
Similarly, on the third part of the test, the Court held that the balance of convenience, “including the public interest in preventing the spread of COVID-19 and, especially, its variants, overwhelmingly supports the refusal of injunctive relief at this time.” As a result, the motion for an interim injunction was dismissed.
Although the motion for an interim injunction was dismissed, the main constitutional challenge has yet to be heard and is expected to proceed on an urgent basis.
Advocacy group challenges ROA regulations limiting operation of Ontario strip clubs
Another challenge to Ontario’s emergency legislation has been brought by Work Safe Twerk Safe (“Work Safe”), an advocacy group that promotes the rights of strippers in Ontario. Work Safe commenced an application for judicial review challenging regulations under the ROA that require strip clubs in certain parts of Ontario to remain closed, except for the purpose of serving food and beverages, with certain conditions. Work Safe argues that the regulations unjustifiably infringe the rights of strippers under sections 2, 7 and 15(1) of the Charter.
Most recently in Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, the Ontario Divisional Court allowed Work Safe’s motion for an order permitting the anonymization of affidavits to be sworn by strippers in support of the application. The Court applied the “Dagenais/Mentuck test,” which requires the party seeking an anonymization order to establish that:
- Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and
- The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the respondent to a fair and public hearing, and the efficacy of the administration of justice.
The Court held that Work Safe satisfied this test, finding that the identities of the strippers who may swear affidavits will have no real bearing on the press’s ability to report on the case or on the public’s access to information about the case, and they can therefore be referred to by their initials in the public record. However, the Court confirmed that the strippers’ identities would be disclosed to the Ontario government and the Court in order to ensure that they remain accountable for their evidence and subject to cross-examination.
Takeaways
These cases demonstrate the continuing 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. Although the final results of these legal challenges remain to be seen, the decisions which have been released so far suggest that courts are continuing to defer to the government 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.