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In Canadian Appliance Source LP v. Ontario, 2020 ONSC 7492, Canadian Appliance Source (one of Canada’s largest home appliance retailers) brought an application requiring the government to allow it to remain open in Peel and Toronto. As part of scheduling the upcoming hearing, the court held a case conference last week. At the case conference, scheduling of the upcoming hearing was dealt with. More importantly, the court also dealt with a request that the store be allowed to stay open from the date of the case conference to the date of the hearing (an interim injunction).

Justice Myers of the Ontario Superior Court denied the interim injunction, preferring that the matter be dealt with at a full hearing with evidence.

In deciding the matter, Justice Myers set out the test for granting interim relief. There is a 3 part test to interim relief.

1. Is there a serious issue to be tried?

It was found that there was a serious issue. Currently big box retailers are allowed to be open while smaller shops selling similar goods are closed. In this case, the home appliance retailer was closed, which could also be problematic given the federal government’s definition of essential services. The federal government classifies retail workers in the chain of commerce of home appliances as essential.  

2. Will the Applicant suffer irreparable harm?

The home appliance retailer argued that it would lose massive revenue if they could not reopen immediately. Further, there was no mechanism to get compensation from the government, in the event that the closure was found to be wrong. Aside from bringing a civil suit.

3. What is the balance of convenience?

In assessing the “balance of convenience”, the court looks at the potential harm to the applicant compared to the potential harm to the respondents.  “The court tries to determine which side will suffer the worse harm and where the equities lie as between or among the parties.” Justice Myers found that “given the severity of potential consequences to the public at large, it would be irresponsible of me to wade into these issues without a much better understanding of the countervailing public health issues.”

At para 27, Justice Myers notes that “Everyone sees the apparent unfairness of small stores closing while big box stores remain open. Are there issues about trying to change the public’s habits during the shutdown? … to try to get people to see that it is not business as usual and they should stay home? … has the government made a policy choice to favour a small number of very large stores to contain risks while people do necessary shopping? If the applicant’s stores stay open, does that have a cascading effect on others or undermine the containment effort?”

Although the interim injunction was denied, the hearing on the whether an injunction will be granted will be heard tomorrow based on a full evidentiary record (December 8, 2020).