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But while the case is worth taking seriously, it “faces some serious hurdles,” Daly said.
Key to HBC’s argument will be whether the Reopening Act, which governs lockdowns, requires an evidence-based approach as the retailer’s lawyers argue.
“If so, then HBC has a plausible argument about the absence of evidence of transmission in its stores as opposed to big box stores,” said Daly. “Just like the Tesla case … there’s an arbitrary distinction.”
However, that argument also sets a high bar to demonstrate the “mismatch” between the effect of regulations and scientific evidence.
“Given our patchy knowledge about transmission in Ontario, I think HBC won’t be able to show the necessary mismatch,” he said.
Daly and his colleague Colleen Flood, director of the University of Ottawa Centre for Health Law, Policy and Ethics, said courts tend to be somewhat deferential to governments, though a recent Supreme Court case may be interpreted to require more accountability on the part of decisionmakers.
Still, Flood said, “in the context of the exercise of government orders (regarding) COVID-19, I think it’s unlikely to give much of a life-raft to Hudson Bay.”
Given our patchy knowledge about transmission, I think HBC won’t be able to show the mismatch
Paul Daly, University of Ottawa
David Bish, head of the corporate restructuring and advisory practice at Torys LLP in Toronto, said the fact that HBC filed the legal challenge when current restrictions are close to expiring suggests a high level of frustration for the retailer.
