One of the more surprising lines from Justice Perell’s wonderfully colourful decision in Canadian Appliance Source LP v. Ontario is the statement that the applicant appliance store “does not challenge… the governmental policies that underlie” the staged COVID-19 lockdown regulations. On the contrary, the Applicant’s oral argument represented the giving of a Superior Court soapbox to the chorus of complaints that echoed on Twitter and talk radio following the institution of the “Grey-Lockdown” restrictions in Toronto and Peel beginning on November 23. In urging the Court to declare that an appliance showroom catering mainly to homeowners was a “hardware store” under the regulations, the Applicant bleated that it was just as safe as a big box hardware store, and that it should be permitted to open for in-person sales; after all, they claimed, home appliances are essential to the operation of a household, and the purpose of the lockdown regulations was to permit essential services to remain open. A similar argument was made by Hudson’s Bay Company, although HBC’s legal tactic was to challenge the vires of the lockdown regulation in relation to the enabling legislation upon Judicial Review.
It is no surprise that Ontario did not open up its senior policy advisors to cross-examination on the public health evidence (or lack thereof) supporting the distinctions made in the lockdown regulations. But the fact that Justice Myers, in declining to issue an interim injunction in advance of the hearing by Perell J., suggested that government may wish to adduce such evidence on the application on its merits speaks to the Court’s recognition of how the government’s lack of transparency in its COVID response has created a crisis in public confidence in that response. The Divisional Court bluntly stated, “We agree with HBC to this extent: one effect of [the regulation] seems to result in permitting 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.”