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Ontario court hears Hudson Bay's request for review of regulations keeping retailer closed

Last Updated Dec 18, 2020 at 8:04 am EDT

An empty parking lot outside the Hudson's Bay store at Sherway Gardens. (Mark Douglas/680NEWS)

Hudson’s Bay Company’s court challenge against the province’s lockdown continues today.

The company is fighting what it says are the Ontario government’s “irrational and arbitrary” COVID-19 rules on store closings.

Last week, the retailer – one of the country’s most prominent department stores – sought a review into the province’s decision to shut down non-essential retailers in Toronto and Peel while the regions are in ‘lockdown.’

The company is asking the court to acknowledge the unfairness of the situation, calling the government’s decision “unreasonable and unfair.” HBC says there needs to be a solution that prioritizes health and safety without damaging the livelihood of retail workers and businesses.

HBC is also arguing that shoppers aren’t the ones significantly contributing to the spread of the coronavirus.

“The Ontario Government’s health data shows that retail shoppers are not contributing to COVID-19 spread in any significant way.

On behalf of thousands of large and small retailers in Toronto and Peel, we have been left with no choice but to ask the Court to recognize the unfairness of the current situation and the need for a fair and evidence-based solution that puts health and safety first and doesn’t jeopardize the livelihoods of thousands of retail workers, or the future of many businesses.”

On Thursday, lawyer Jonathan Lisus told a video hearing that the regulations make no “rational distinction” between Bay stores and some big box and discount retailer stores allowed to remain open.

Lisus noted, for example, that Walmart and Costco sell very similar products to HBC, while the majority of goods at discount retailer Dollarama are non-essential with its food offerings consisting mostly of candies, sweets, and some canned goods – not fresh groceries.

“HBC is not here to take issue with the important objective of pushing back the pandemic or to point fingers at other retailers,” he said.

“It’s here to say the distinction that has been drawn is irrational and unfair.”

Crown lawyer Richard Ogden told the court the regulation seeks to balance emergency needs during a pandemic with economic activity.

He said the regulation is “entirely consistent” with the purpose of the Reopening Ontario Act and is therefore valid.

“HBC has a burden to prove invalidity and has not met that burden,” Ogden argued. “There is ample public health … advice that people should minimize non-essential trips.”

He said that while retailers such as HBC cannot allow shoppers into their stores “they can remain open.”

“They can operate with curbside pickup or online delivery,” he said. “These designations are policy choices, which have been made by the government as part of a balancing exercise.”

The Bay has been forced to close 16 stores in the affected regions of Toronto, Peel, and more recently York and Windsor-Essex.

Earlier this month a coalition of about 50 retailers, including HBC, signed a letter that argued the lockdown forces consumers to buy goods at big box and discount stores that are deemed essential, while thousands of retailers that sell many of the same products are forced to close.

The letter called on the government to immediately open all retail stores in the province and impose a 25 percent capacity limit on non-essential stores in lockdown regions, citing the province’s health data that shows shoppers and keeping stores open does not lead to COVID-19 transmission.

The Ontario government ordered all non-essential businesses to close in Toronto and Peel Region on Nov. 23 when the two regions entered the ‘Grey-Lockdown‘ zone of the province’s COVID-19 framework.

HBC previously decided to keep its Queen Street location open on the first day of the lockdown but closed it the following day after criticism from the provincial government.

The company said that while curbside pickup is being offered at some of its locations, they considered the Queen Street store to be an essential service because it “offers grocery.”

With files from the Canadian Press.

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