COURT FILE NO.: CV-20-00652412-0000
DATE: 2020/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN APPLIANCE SOURCE LP
Applicant
- and -
ONTARIO (ATTORNEY GENERAL), HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CITY OF TORONTO and REGION OF PEEL
Respondents
Eli Karp for the Applicant
Brent McPherson, Court Peterson, and Kateryna Toderishena for the Attorney General
Jayme Corcoran for the Regional Municipality of Peel
Colleen Grant, for the City of Brampton
Georgia Tanner, for the City of Toronto
Daron Earthy for the City of Mississauga
Application Under s. 101 of the Courts of Justice Act and O. Reg 82/20
HEARD: December 8, 2020
PERELL, J.
REASONS FOR DECISION
I get no chance to name anything myself. The new creature names everything that comes along, before I can get to protest. And always the same pretext is offered – it looks like the thing. There is the dodo, for instance. Says the moment one looks at it one sees at a glance that it “looks like a dodo”. It will have to keep that name, no doubt. [Mark Twain, The Diary of Adam and Eve.[^1]]
A. Introduction
[1] Because of the COVID-19 pandemic and the severe public health concerns, the Ontario government approved Ont. Reg. 82/20 and Ont. Reg. 363/20. made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.[^2] The legislation and its regulations imposes escalating restrictions on businesses to limit physical contact among the public to attempt to slow the spread of the disease. The colour-coded restrictions are labelled: green (prevent); yellow (protect); orange (restrict); red (control); and grey (lockdown). The restrictions are imposed regionally and escalate up and down depending on how the region is designated to respond to the spread of the disease in the region. In late November 2020, Toronto and the Regional Municipality of Peel (“Peel”) were designated grey (lockdown), effective November 23, 2020.
[2] The applicant Canadian Appliance Source LP (“Cdn Appliance”) operates five retail appliance stores in Toronto and in Peel, which includes the cities of Brampton and Mississauga. Under Ontario Regulation 82/20, subject to certain exceptions, in the grey (lockdown) designation, retail stores are not permitted to allow customers into their showrooms.
[3] In this Application, Cdn Appliance sues Ontario, Peel, and the cities of Toronto, Brampton, and Mississauga. Cdn Appliance seeks:
a. A final declaration that it may open for business during the grey zone-lockdown stage of the Covid-19 Pandemic because it is a “hardware store” for the purposes of paragraphs 1 and 2 of Schedule 2 (1,2) of O. Reg 82/20;
b. In the alternative, a final declaration that it may open for business because it is part of the supply chain for construction as set out in sections 1 and 43 of O. Reg 82/20;
c. In the further alternative, a final declaration that it may open for business on the basis that it supplies business and services that have been declared essential outside of Ontario with support, products supplies, systems or services necessary to operate.
[4] For the reasons that follow, Cdn Appliance’s Application is dismissed.
B. Legislative and Regulatory Background
[5] On March 17, 2020, the Premier of Ontario declared an emergency in the whole of Ontario pursuant to s. 7.0.1 of the Emergency Management and Civil Protection Act.[^3] An emergency is defined under the Act as:
[A] situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise.
[6] The declaration of emergency was implemented through Ont. Reg. 50/20, which notes that the declaration was the result of the outbreak of a communicable disease, namely COVID-19 coronavirus disease, that constitutes a danger of major proportions that could result in serious harm to persons.
[7] On March 24, 2020, Ont. Reg. 82/20 was made ordering the closure of non-essential businesses and placing conditions on the operations of other businesses and organizations. This regulation has been amended approximately 20 times since March 24, 2020.
[8] On July 24, 2020, the government enacted the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 as part of its response to the pandemic. The Reopening Ontario Act continues regulations made under the Emergency Management and Civil Protection Act.
[9] On Monday, November 23, 2020, Toronto and Peel, which includes Brampton and Mississauga entered the Grey-Lockdown Level prescribed by Ont. Reg 363/20, Schedule 1, Stage 1. Ont. Reg. 82/20 governs the Grey-Lockdown Level by setting out a variety of public health measures designed to address the spread of COVID-19 and in particular the requirements regarding: the closure and regulation of places, compliance with the advice, recommendations and instructions of public health officials, and prohibitions on and regulation of gatherings.
[10] For present purposes, the following provisions of Ont. Reg. 82/20 and Ont. Reg. 363/20 are pertinent to the circumstances of the immediate case:
Ontario Regulation 363/20: Stages of Reopening
Stages
- (1) The areas listed in Schedule 1 are in Stage 1 of reopening [grey (lockdown)].
SCHEDULE 1 - STAGE 1 AREAS
City of Toronto Health Unit.
Peel Regional Health Unit.
Ontario Regulation 82/20: Rules for Areas in Stage 1
Terms of Order
- The terms of this Order are set out in Schedules 1, 2, 3 and 4.
Application
- This Order applies to the areas listed in Schedule 1 to Ontario Regulation 363/20 (Stages of Reopening) made under the Act.
SCHEDULE 1 GENERAL RULES
Closures
- (1) Each person responsible for a business, or a part of a business, that is not listed in Schedule 2 or 3 shall ensure that the business, or part of the business, is closed.
SCHEDULE 2
BUSINESSES THAT MAY OPEN
Supply chains
- Businesses that supply businesses or places that are permitted to open within Ontario, or that supply businesses or services that have been declared essential in a jurisdiction outside of Ontario, with the support, products, supplies, systems, or services, including processing, packaging, warehousing, distribution, delivery, and maintenance necessary to operate.
Retailers
(1) The following businesses that engage in retail sales to the public:
Supermarkets, grocery stores and indoor farmer’s markets that primarily sell groceries.
Convenience stores.
Discount and big box retailers selling groceries.
Hardware stores.
Safety supply stores.
Pharmacies.
Stores, other than stores described in section 3, that sell liquor, including beer, wine and spirits.
(2) Nothing in paragraph 1 of subsection (1) permits a business located within an indoor farmer’s market to open unless it is a business that primarily sells groceries or is described in paragraphs 2 to 7 of subsection (1) or in section 3.
(1) Businesses not already described in sections 2 to 9 that engage in retail sales to the public and that meet the following conditions:
Sales must be exclusively made using an alternative method of sale that does not require patrons to enter the indoor area of the business, including curb side pick-up or delivery.
If the business allows patrons to pick up items at the business, it must have,
i. a public entrance that opens onto a street or exterior sidewalk, or
ii. an entrance facing into a shopping mall.
C. Facts
[11] Cdn Appliance is one of Canada’s largest home appliance retailers. It operates 29 showroom/retail stores in six provinces across Canada. Cdn Appliance has stores in: (a) Brampton, 30 Great Lakes Drive; (b) Mississauga, 600 Matheson Boulevard, (c) Toronto (Etobicoke), 90 Ronson Drive; (d) Toronto, 65 Dufflaw Rd.; and (e) Toronto, 20 Lebovic Ave. In the showrooms, customers may view and purchase home appliances. It operates a website at www.canadianappliance.ca, where customers may view appliances offered for sale and may make purchases.
[12] Cdn Appliance sells refrigerators, freezers, ranges, cooktops, ovens, microwaves, kitchen ventilation appliances, dishwashers, washing machines, dryers, air conditioners, barbeque grills and other household appliances. Canadian Appliance does not sell building materials (lumber, masonry), construction hardware (nails, screws, etc.), fasteners, hand tools, power tools, plumbing supplies, electrical supplies, cleaning products, small housewares, utensils, and sanitation supplies.
[13] Cdn Appliance’s website advertises itself as an appliance store, and its employees are advertised as experienced appliance specialists and salespersons. The inventory of appliances available in Cdn Appliance’s showrooms is the same inventory that is available through the website.
[14] Walk-in sales at the showrooms comprise approximately 80% of Cdn Appliance’s sales. On average, approximately 30 customers visit each showroom per day. Historically, foot traffic is typically busier during the months of November and December when Cdn Appliance conducts its Black Friday sale and the pre-Christmas sale. For example, in November of this year, Cdn Appliance had walk-in sales totaling $25.5 million of which $17.0 million came from the Ontario stores. For example, the Mississauga showroom had sales of $1.1 million in November 2020.
[15] Cdn Appliance projects its sales for the month of December to be approximately $18.0 million in Ontario and $27.0 million Canada-wide.
[16] While most of Cdn Appliance’s customers are individual consumers, its customers also include restauranteurs, and builders of medical facilities, commercial properties, and residential properties being outfitted with appliances.
[17] Each Cdn Appliance showroom has the COVID-19 protocols in place, including: (a) a barrier has been installed at each counter, separating the employee from the customer; (b) barriers have been installed separating employees from other employees; (c) all employees and customers are required to wear masks while inside the showroom; (d) hand sanitizer is readily available to both employees and customers in the showroom; (e) procedures have been implemented to wipe down and sanitize all frequently touched surfaces in the showroom; (f) there are extra supplies, including masks and sanitizer, in each showroom; (g) masks are available for customers who enter a showroom, but do not have a mask; (h) there is a “no cash and carry” rule, which prohibits the exchange of cash for purchases in the showrooms; and (i) detailed signs, advising customers of the mandatory mask rule, are placed throughout the showrooms.
[18] Under the Reopening Ontario Act, Municipal Law Enforcement Officers have delegated authority to conduct inspections and investigations to ensure compliance with the regulations, and on November 23, 2020, a Mississauga Municipal Law Enforcement Officer attended at Cdn Appliance’s Mississauga store and issued a Notice of Contravention for contravening the COVID-19 related regulations.
[19] On November 24, 2020, a Brampton Municipal Law Enforcement Officer attended at Cdn Appliance’s Brampton store and advised store personnel that the showroom was prohibited from being open to the public under the COVID-19 related restrictions.
[20] On November 25, 2020, a Mississauga Municipal Law Enforcement Officer returned to the Mississauga store and observed that the store showroom remained open to customers. A second notice of contravention was issued.
[21] On November 26, 2020, Mississauga Municipal Law Enforcement Officers attended at the Mississauga store to monitor compliance with the previous notices and observed that the store was open to customers. The officers observed that two employees were not wearing masks and rushed to put them on as the officers entered. Notices of contravention were issued for a third time.
[22] On November 27, 2020, Mississauga Municipal Law Enforcement Officer Michael Keter, attended at Cdn Appliance’s Mississauga store along with a Peel Region police officer and observed that the showroom remained open to the public. There were approximately ten customers inside the store looking at appliances or interacting with the sales staff. Mr. Keter spoke with Ari Klein, Cdn Appliance’s CEO, who introduced himself as the store manager.
[23] Mr. Keter advised Mr. Klein that the Mississauga showroom must close because Cdn Appliance is not a “big box hardware store” and was prohibited by regulation from being open. Mr. Klein responded that the store was indeed a “hardware store” for purposes of the regulation. Mr. Klein relied on guidelines from provinces such as Manitoba, Saskatchewan and British Columbia, where appliance stores are a sub-category of a hardware store and are allowed to operate. Mr. Keter responded that if Cdn Appliance did not close the Mississauga store arrests would follow. What did follow was that charges were issued pursuant to the Provincial Offences Act.
[24] Later that day Steve Shave Cdn Appliance’s COO wrote to Mr. Keter, providing him with information supporting his corporation’s position that it should be allowed to remain open. Mr. Shave provided the Merriam-Webster dictionary definition of hardware, being “major items of equipment or their components used for a particular purpose.” He provided literature from the Government of Canada website, that stated that workers who support the appliances supply chain, including manufacturing, wholesale distribution, retail and repair are considered “essential”. Mr. Keter did not reply to Mr. Shave’s email.
[25] On Saturday, November 28, 2020, a Brampton Municipal Law Officer attended at the Great Lakes Drive store and advised personnel that the store must close. Despite pleas that the store was exempt under the regulation, the officer insisted that the store close.
[26] On November 28, 2020, Toronto by-law enforcement officers attended the Dufflaw Rd. store and advised store personnel that the store was prohibited from being open. A sales associate advised the officers of Cdn Appliance’s position that it was an essential service. He provided a printout of the Public Safety Canada website in support of his argument.
[27] On November 29, 2020, Toronto by-law enforcement officers attended at the Lebovic Ave. store and advised personnel that the store was prohibited from being open. An investigation of this store continues.
[28] On December 1, 2020, David Kugelman, a Toronto by-law enforcement officer attended the Ronson Rd. store and advised personnel that the store was prohibited from being open
[29] On December 3, 2020, Toronto by-law enforcement officers returned to the Lebovic Ave. store to conduct a follow-up investigation. The by-law officers did not observe any merchandise for sale other than appliances. The Cdn Appliance Lebovic store manager was informed of the continued violation and the store manager was charged personally and on behalf of Cdn Appliance for failing to comply with the regulations.
D. Procedural and Evidentiary Background
[30] On December 2, 2020, Cdn Appliance commenced this Application. It claimed declaratory relief and an interim and permanent injunction requiring the government to allow it to open its showrooms for business.
[31] On December 3, 2020, the court convened an urgent case conference to schedule a hearing for an interlocutory injunction pending the final return of the Application. At the case conference, Justice Myers scheduled the hearing for interlocutory relief as a virtual hearing for December 8, 2020. In his endorsement, Justice Myers noted that depending on the parties’ ability to turn their evidence and legal arguments quickly, it may be that the final hearing can be held on December 8, 2020.[^4]
[32] Cdn Appliance’s Application was supported by an affidavit from Mr. Klein dated December 2, 2020.
[33] Peel delivered an affidavit from Louise Aubin, the Director, Health Protection for the Public Health Division of The Regional Municipality of Peel dated December 6, 2020.
[34] The Ontario government delivered affidavits from: (a) Richard Stubbings, the Assistant Deputy Minister of the Public Safety Division within the Ministry of the Solicitor General dated December 6, 2020; (b) Michael Keter, a Municipal Law Enforcement Officer employed by Mississauga dated December 4, 2020; (c) Ronald Graham, a Municipal Law Enforcement Officer employed by Brampton dated December 4, 2020; (d) Scott Sullivan, Acting Director of By-law Enforcement, City of Toronto Municipal Licensing and Standards Division; and (e) Vinita Dubey, a physician employed as an Associate Medical Officer of Health for the City of Toronto dated December 5, 2020.
[35] The hearing proceeded on December 8, 2020. At the commencement of the hearing, Peel brought a preliminary motion. It requested an order dismissing the Application as against it on the basis that it was neither the legislator nor tasked with enforcing the legislation and the associated regulations and as such, was not a necessary or proper party to this application. The parties consented to removing Peel as a party and I so ordered.
[36] At the commencement of the hearing, the parties advised the court that the Application should be heard on its merits and not on the basis of the tests for interlocutory relief.
E. Discussion and Analysis
[37] The Application before the court is a matter of statutory interpretation and of statutory application.
[38] Cdn Appliance does not challenge the constitutionality, the validity, the necessity, or the government policies that underlie the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and Ont. Reg. 82/20 and Ont. Reg. 363/20. Although there is a great deal of public clamour and protest about the fairness in application of the COVID-19 regulations as they apply to businesses small and large and as to how the regulations apply to various parts of the private sector, Cdn Appliance does not join the protestors. Cdn Appliance’s complaint is that the Municipal Law Enforcement Officers of Brampton, Mississauga, and Toronto are improperly interpreting and applying the regulations, which Cdn Appliance submits it is capable of complying with, is complying with, and should be allowed to comply with.
[39] Cdn Appliance submits that it is an essential service within the category of businesses, like (a) hardware store businesses; (b) business that supply businesses that are permitted to open within Ontario i.e. essential service business, or (c) business that supply businesses that have been declared essential in a jurisdiction outside of Ontario.
[40] Cdn Appliance submits that properly interpreted and applied, the Ontario government intended by its Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and Ont. Reg. 82/20 and Ont. Reg. 363/20 that Cdn Appliance should be open for business during the pandemic provided it follows the public health guidelines in providing services to the Ontario populace, which it has been and is capable of doing.
[41] Ontario, however, disagrees with Cdn Appliance’s interpretation and rather agrees with the interpretation given its statute and its regulations by the Municipal Law Enforcement Officers of Brampton, Mississauga, and Toronto. Ontario submits that Cdn Appliance is not within the category of business that are permitted to be open for retail sales to the public. It submits that Cdn Appliance should close as a necessary response to the COVID-19 crisis that has informed the public health scientists to categorize Brampton, Mississauga, and Toronto as grey (lockdown) zones.
[42] Thus, the Application before the court is a matter of statutory interpretation and of statutory application. Pursuant to the Legislation Act,[^5] legislation shall be interpreted as being remedial and legislation shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
[43] The approach to interpretation of a statute is teleological or purposeful, and to interpret a statute, the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislator.[^6] To interpret a statute, the court should look at the Act as a whole and attempt to find an interpretation that is in harmony with the entire legislative scheme including the regulations and forms.[^7]
[44] The context for statutory interpretation is multi-layered, encompassing the purpose of the legislation, the mischief the statute was intended to address, the statutory provision in issue, the statute as a whole including its forms and regulations, other related statutory provisions, applicable legal norms, and the Legislation Act.[^8]
[45] If the words of the statute when read in their context are precise and unambiguous, then the words should be given their natural and ordinary sense.[^9] The court’s role is to interpret the statute not enact it; if the sense of the words of the statute is clear and unambiguous, then the court must interpret the words literally and in accordance with their plain meaning even if the consequences are absurd or unjust.[^10] Recognition of the proper roles of the legislature and the judiciary requires that courts give effect to the plain meaning of the words of a duly enacted statute, and a court should not interfere merely because it does not approve of the result produced by the statute in a particular case.[^11]
[46] Some principles of statutory interpretation apply only when there is a genuine ambiguity as to the meaning of the words. For there to be genuine ambiguity, the ambiguity must be real, which is to say that after a consideration of the entire context, the words of the statute must be reasonably capable of more than one meaning.[^12]
[47] In the immediate case, applying the principles of statutory interpretation, there is no ambiguity about what the Legislature meant or intended to mean when it specified that a “hardware store” in a lockdown zone may remain open for retail sales to the public. The Legislature intended the words “hardware store” to be read, which is to say be understood, in their ordinary sense. The Legislature did not prescribe a special meaning to the words “hardware store” and just used those words in their conventional everyday sense.
[48] In just referring to a hardware store without defining it, the Legislature meant a retail store that a person through common experience and observation would recognize as a retail hardware store. If you asked a child to go to a hardware store, he or she would not go to a Cdn Appliance store. A person would not identify, label, or name Cdn Appliance a hardware store, and, truth by told, Cdn Appliance has not and would not describe itself as a hardware store, if it was not compelled by its urge to provide retail sales of appliances to the public, notwithstanding that its showrooms are in a lockdown area.
[49] Cdn Appliance argues that a hardware store sells appliances and that appliances are hardware and, therefore, it is a hardware store. The fallacy in that argument is that a retail store that sells hardware is classified as much by what it does not sell as much as by what it does sell. It is the overall mix of goods that identifies a store as a hardware store. Cdn Appliance may sell appliances, which may fairly be called a type of hardware, but it does not sell building materials (lumber, masonry), construction hardware (nails, screws, etc.), fasteners, hand tools, power tools, plumbing supplies, electrical supplies, cleaning products, small housewares, utensils, and sanitation supplies, all of which will be found in a conventional hardware store.
[50] Another fallacy in Cdn Appliance’s argument is that leads to the reducto ad absurdum that if a retail appliance store is a hardware store, because it sells appliances that are a type of hardware, then department stores, dollar stores, used goods stores, pharmacies, computer stores, grocery stores, kitchen supply stores, etc. that may also sell large or small appliances are also hardware stores. The Legislature would not have intended this absurd result, which would make an overwhelming number of businesses essential services open for retail trade notwithstanding the risk that their opening presents to reducing the spread of the virus.
[51] Cdn Appliance made forceful arguments that as an appliance supplier, it is an essential service business; visualize: who’s to say that during a pandemic that a washing machine that cleans clothes or a refrigerator that preserves food is less essential than a hammer? And, Cdn Appliance forcefully argued that the purpose of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and Ont. Reg. 82/20 and Ont. Reg. 363/20 was to allow essential service businesses to keep serving the public provided that they followed the public health protocols.
[52] The fundamental problem with these forceful arguments is that they are not interpretive arguments about what the Legislature actually meant, but rather they beg the interpretive question of what the Legislature meant. In this last regard, it should be recalled that Cdn Appliance’s complaint is not about what the Legislature enacted, it is about how the Municipal Law Enforcement Officers have interpreted the legislation and the statutes.
[53] Cdn Appliance made eloquent tautologically circular arguments that a retail appliance store is within the meaning of a hardware store as intended by the Legislature, and, for their part, Ontario and Toronto made eloquent tautologically circular arguments that a retail appliance store does not fall within the definition of a hardware store as intended by the Legislature.
[54] Cdn Appliance, Ontario and Toronto cannot be faulted for making eloquent circular arguments as that is an inevitable circumstance with arguments about definitions or about the naming of things.
[55] Arguments about definitions and names are inherently circular, as Mark Twain recognized when he humorously attributed to Eve the naming of things found in the Garden of Eden under the pretext that the think looks like the thing. The meaning attributed to Shakespeare’s “a rose by any other name would smell as sweet” is similarly that when all is said and done, a thing is what it is. In the immediate case, the simple counterargument to the tautological argument that Cdn Appliance is a hardware store is the argument that a retail appliance store is not the same thing as a hardware store.
[56] Language is a human construct, and dictionary definitions are inductive descriptions of the nature of things based on observation, and in the immediate case, the Ontario Legislature relied on the everyday meaning attributed by observation and experience for what counts for a hardware store. Although it could have, the Legislature did not provide a prescriptive definition of hardware stores. A prescriptive definition could have expressly included retail appliance stores as a hardware store. Similarly, in the immediate case, unlike the Legislatures in some other provinces, although it could have, the Ontario Legislature did not expressly include retail appliance stores as an essential service that would be open for business in the lockdown zone.
[57] In the immediate case, what Cdn Appliance is attempting to do is to make a stipulative definition or forced definition for the word “hardware store.” Cdn Appliance is attempting to extends the meaning of a word from its conventional meaning, in circumstances when the Legislature left the word undefined, except for its literal or conventional meaning.
[58] And worse, in the immediate case, Cdn Appliance’s forced stipulative definition is what is known in the legal drafting trade as a “Humpty Dumpty Definition. ” This label alludes to the famous exchange between Humpty Dumpty and Alice in Lewis Carrol’s Through the Looking-Glass, where Humpty Dumpty in speaking about the meaning of the word “glory” “said, in rather a scornful tone, ‘it means just what I choose it to mean- neither more nor less.’” Professor Reed Dickerson in the Fundamentals of Legal Drafting,[^13] and Richard C. Dick, Q.C, in Legal Drafting in Plain Language (3rd ed.)[^14] recommend against Humpty Dumpty Definitions because it is confusing to define a word in a sense that is different from or contrary to the meaning conventionally ascribed to it.
[59] Recognition of the proper roles of the legislature and the judiciary requires that courts give effect to the plain meaning of the words of a duly enacted statute. In the immediate case, the Legislature intended the conventional everyday meaning of “hardware store” and Cdn Appliance’s business is not what is conventionally known as a hardware store.
[60] Much the same thing can be said about Cdn Appliance’s alternative arguments. As a matter of statutory interpretation, it does not follow that that Cdn Appliance is a “supply chain” business that may open pursuant to Schedule 2, paragraph 1 of Ont. Reg. 82/20 because some of its customers are businesses that are permitted to open within Ontario i.e. essential service business like the construction trades, or are businesses that supply businesses that have been declared essential in a jurisdiction outside of Ontario. A major fallacy in Cdn Appliance’s arguments and alternative arguments is that they are an effort to stretch the words of the Regulations in their contextual nexus beyond their plain language.
[61] In criticizing Cdn Appliance’s arguments this is not to say that I agree with Ontario’s and Toronto’s arguments that a hardware store and a supply chain business should because of the dire threat to public health be given a narrow and restricted meaning. The Legislature’s intention simply was to give the words of the regulation their conventional and natural and expected meaning.
[62] In the immediate case, there is no ambiguity that the Legislature intended that the regulations be understood, interpreted, and applied literally and in accordance with the plain and conventional meanings of the words used to describe what business can remain open depending on the public health status of a region.
[63] Absent ambiguity there is no reason to give the words of the regulation a narrow or expanded meaning. The literal meaning of the words serves the purposes of the Act and provide a meaning that advances the delicate balancing attempted by the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and Ont. Reg. 82/20 and Ont. Reg. 363/20, which I hasten to add must address the public health crisis and the need for essential services not only in grey zones but also in green, yellow, orange, and red zones.
F. Conclusion
[64] For the above reasons, the Application is dismissed.
[65] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Respondents within twenty days of the release of these Reasons for Decision followed by Cdn Appliance’s submissions within a further twenty days.
Perell, J.
Released: December 10, 2020
COURT FILE NO.: CV-20-00652412-0000
DATE: 2020/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN APPLIANCE SOURCE LP
Applicant
- and -
ONTARIO (ATTORNEY GENERAL), HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CITY OF TORONTO and REGION OF PEEL
Respondents
REASONS FOR DECISION
PERELL J.
Released: December 10, 2020
[^1]: Mark Twain, The Complete Short Stories of Mark Twain (Toronto: Bantam Books, 1957).
[^2]: S.O. 2020, c. 17.
[^3]: R.S.O. 1990, c. E.9.
[^4]: Canadian Appliance Source LP v. Ontario, 2020 ONSC 7492
[^5]: S.O. 2006, c. 21, Sched. F, s. 64 (1).
[^6]: Oakville v. Clublink Corporation ULC, 2019 ONCA 826 at para 1; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at paras. 18-23; Stubart Investments Ltd. v. The Queen, 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536 at p. 578.
[^7]: Mavi v. Canada (Attorney General) (2009), 2009 ONCA 794, 98 O.R. (3d) 1 at paras. 92-96 (C.A.); Verdun v. Toronto-Dominion Bank, 1996 CanLII 186 (SCC), [1996] 3 S.C.R. 550 at p. 559
[^8]: R. v. Hajivasilis, 2013 ONCA 27 at para. 23; Mavi v. Canada (Attorney General) (2009), 2009 ONCA 794, 98 O.R. (3d) 1 at paras. 92-96 (C.A.); Re Canada 3000 Inc., 2006 SCC 24, [2006] 1 S.C.R. 865 at paras. 36-37; Heydon’s Case (1584), 76 E.R. 637.
[^9]: Grey v. Pearson (1857), 6 H.L.C. 61; Sussex Peerage Case (1844), 11 Cl. & F. 85.d
[^10]: R. v. Huggins, 2010 ONCA 746 at paras. 17-18; R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686 at p. 704; Victoria (City) v. Bishop of Vancouver Island, [1921] A.C. 384 (P.C.).
[^11]: Zeitel v. Ellscheid, 1994 CanLII 82 (SCC), [1994] 2 S.C.R. 142 at p. 152.
[^12]: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743 at para. 14.
[^13]: Reed Dickerson, The Fundamentals of Legal Drafting (Toronto: Little Brown and Co., 1965) at pp. 98-111.
[^14]: Richard C. Dick, Q.C, in Legal Drafting in Plain Language (3rd ed.) (Scarborough, Thompson Canada Ltd., 1995 at pp. 77-86.