Irrational but not Irrelevant: Deference to Pandemic Regulations in Hudson’s Bay Company ULC v. Ontario (Attorney General)

  • April 03, 2021
  • Teagan Markin and Brianne Taylor

In its December 23, 2020 decision in Hudson’s Bay Company ULC v. Ontario (Attorney General),[1] the Ontario Divisional Court dismissed Hudson’s Bay Company’s bid to ease retail lockdowns in regions of Ontario hardest hit by the COVID-19 pandemic. This decision signals a lingering post-Vavilov doubt about how closely courts will examine the legality of regulations, and also illustrates the courts’ deferential approach to government restrictions on civil liberties during the pandemic.

The Background

In December 2020, Hudson’s Bay Company (“HBC”) sought judicial review of the Rules for Areas in Stage 1, O. Reg. 82/20 (the “Regulation”) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA”). The ROA gives the province special powers to continue and amend orders made under emergency powers legislation in relation to the COVID-19 pandemic after the end of the declaration of emergency. The Regulation determines which businesses may operate in regions of Ontario in “Stage 1”, the most restrictive stage that applies to the regions with the highest rates of COVID-19.[2]

HBC challenged a provision of the Regulation that allowed “discount and big box retailers selling groceries” to open while requiring big box retailers that do not sell groceries to close. HBC’s primary argument was that it was irrational to allow stores like Walmart, which sell essentially the same type of products as HBC, to open simply because they also sold groceries. HBC also argued that “essential services” could not be a relevant consideration under the ROA, and that more onerous restrictions on big box stores that do not sell groceries were not supported by evidence on COVID-19 transmission.

The Court dismissed the application. It found that the Regulation was consistent with the purpose and scope of the ROA, which was “to provide a flexible approach to balancing the health and safety of Ontarians during the pandemic against the province’s economic and business interests”.[3] The Court held that it was not its place to rule on the “wisdom and efficacy” of the policy (despite noting that it was “certainly open to question”).[4] Rather the court’s role was limited to determining whether the provision is authorized by the ROA, which it “clearly is”.[5]