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CROWN - Provincial and territorial legislatures - Regulations and rules

Friday, February 05, 2021 @ 6:10 AM  


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Application by Hudson’s Bay Company (HBC) for judicial review, challenging s. 2(1)3, Schedule 2, of O Reg 82/20 (the regulation). HBC operated department stores, selling products such as clothes, cosmetics, housewares, small appliances, toys and confection. In response to the COVID-19 pandemic, Ontario made a series of regulations that set out measures restricting the operation of retail businesses. The most restrictive measures were those in place for regions in Stage 1 and were set out in O Reg 82/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act (ROA). Under O Reg 82/20, businesses in the region of Ontario that were designated as being under Stage 1 were to be closed unless they were specifically listed in Schedule 2 of the regulation. HBC challenged s. 2(1)3, Schedule 2 of O Reg 82/20, which provided that “discount and big box retailers selling groceries” were permitted to open. HBC took the position that the regulation was ultra vires the ROA. HBC submitted that the distinction drawn between big box stores that sold groceries and big box stores that did not sell groceries was irrational because it allowed stores that sold the same types of products as HBC to continue selling those products only because they also sold groceries. That was causing economic hardship to HBC and its employees. HBC argued that the distinction was impermissible and that the evidence did not support the need to close its doors. The respondent Ontario took the position that the closure of big box stores that did not sell groceries was a policy choice permitted by the ROA. Ontario submitted that the court should not assess whether that policy choice was effective or wise.

HELD: Application dismissed. The effectiveness or wisdom of the regulation was irrelevant. It was not the role of the court to decide whether section 2(1)3, Schedule 2, of O Reg 82/20 was effective, overly broad, or unduly restrictive. The court’s role was limited to determining whether the provision was authorized by the ROA, which it clearly was. The purpose of the ROA was to balance public health and safety measures with economic concerns during the pandemic. Ontario’s objective was 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 sold groceries to open was consistent with those purposes. Section 2(1)3, Schedule 2, of O Reg 82/20 was intra vires.

Hudsons Bay Co. ULC v. Ontario (Attorney General), [2020] O.J. No. 5716, Ontario Superior Court of Justice - Divisional Court, M.A. Penny, M.G. Emery and L.G. Favreau JJ., December 23, 2020. Digest No. TLD-February12021009