Business

Ontario court hears HBC's request for review of regulations keeping stores closed

A lawyer for the Hudson's Bay Co. told the Ontario Superior Court of Justice Thursday that the province's regulations forcing some retailers to close while others with similar merchandise remain open are "irrational and arbitrary."

Retailer has 16 stores closed in the province due to pandemic orders

HBC is asking an Ontario court to review the province's decision to temporarily close non-essential retailers in Toronto, Peel and, more recently, York and Windsor-Essex. (Nathan Denette/The Canadian Press)

A lawyer for the Hudson's Bay Co. says Ontario's regulations forcing some retailers to close while others with similar merchandise remain open are "irrational and arbitrary."

Jonathan Lisus told a video hearing with the Ontario Superior Court of Justice on Thursday that the province's regulations make no "rational distinction" between the department store and some of the big box and discount retailers allowed to remain open.

He said there are hundreds of chain retail stores open for business that look "just like HBC" with the sole distinction that they sell an unspecified, undefined amount of "so-called" groceries.

Lisus noted, for example, that large swaths of Walmart and Costco sell products very similar to those sold by HBC, while discount retailer Dollarama sells substantially non-essential goods, with its food offerings consisting mostly of candies, sweets and some canned food — but no fresh groceries.

HBC is asking the court to review the province's decision to temporarily close non-essential retailers in Toronto, Peel and more recently York and Windsor-Essex.

Crown calls regulations 'entirely consistent' with reopening act

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."

Hudson's Bay has 16 stores closed in the impacted regions.

"Hudson's Bay is the only entity that has the industry classification of department store general merchandiser … that is excluded by this regulation," Lisus said.

"This really is a unique-to-HBC issue."

Still, the department store has banded together with smaller retailers to object to the regulations.

A coalition of about 50 retailers, including HBC, even went so far as to sign a letter to Ontario Premier Doug Ford that argued the policy pushes more consumers to big-box and discount stores.

Justice Michael Penny said the court would reserve judgment, but that the judges considering the matter are "acutely aware of the need for expedition."

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