Ontario court says ‘wisdom and efficacy’ of lockdown rules ‘open to question’

(Adobe Stock)

By Brett Bundale

An Ontario court says the “wisdom and efficacy” of the province’s lockdown measures allowing big box stores that happen to sell groceries to remain fully open — potentially generating more customer traffic — is “open to question.”

In a decision that ultimately dismissed Hudson’s Bay Co.’s bid to amend Ontario’s retail lockdown rules, a panel of Ontario Superior Court judges suggested the provincial policy could be at odds with the broader goal of limiting COVID-19 while allowing the sale of essential items in stores.

The decision, issued Dec. 23, said the logic of reducing community transmission suggests that only goods deemed essential should be offered for sale in stores, and that the public should only be permitted into areas of a retail store where essential items are sold — as is the case currently in Quebec.

In fact, the judges said they “agree with HBC” that some of the lockdown measures seem to permit behaviour that is “inconsistent with the broader policy goal of reducing community transmission.”

Still, the decision said the court’s role is limited to determining whether this provision is authorized by the Reopening Ontario Act, which the judges said it “clearly is.”

“These are policy choices made by the Ontario government during extraordinary times,” the decision said.

Physical distancing efforts

It said the province’s objective is to limit contact between people to reduce the spread of COVID-19 while allowing 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,” the decision said.

HBC filed an application for judicial review of the province’s lockdown rules on Dec. 10 after the Toronto and Peel regions went into lockdown in late November, shutting down 12 of the retailer’s department stores.

Another four Hudson’s Bay stores were closed after the York and Windsor-Essex regions went into lockdown on Dec. 14.

Ontario entered a provincewide lockdown on Boxing Day, resulting in the closure of all 31 Hudson’s Bay stores.

The retailer said it has had to lay off more than 3,000 workers since the lockdown began, according to court documents.

It said it anticipated significant economic harm given that the December shopping season usually represents up to 20 per cent of its sales.

A lawyer for HBC argued in a video hearing with the Ontario Superior Court of Justice earlier this month that the rule allowing discount and big box retailers selling groceries to stay open while forcing Hudson’s Bay to close is irrational and arbitrary.

Jonathan Lisus said the lockdown measure is unfair as it allows stores that sell the same types of products as HBC to continue selling those products only because they also sell groceries.

However, the province argued that the lockdown regulations balance emergency needs during a pandemic with economic activity.