Spencer v. Canada (Attorney General)

Spencer v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-04-23
Neutral citation
2021 FC 361
File numbers
T-340-21
Decision Content
Date: 20210423
Docket: T-340-21
Citation: 2021 FC 361
Ottawa, Ontario, April 23, 2021
PRESENT: Mr. Justice Pentney
BETWEEN:
BARBARA SPENCER, SABRY BELHOUCHET, BLAIN GOWING, DENNIS WARD, REID NEHRING, CINDY CRANE, DENISE THOMSON, NORMAN THOMSON, and MICHEL LAFONTAINE
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS
I. Introduction
[1] The Applicants seek an interlocutory injunction to prohibit the Government of Canada from enforcing the mandatory quarantine of travellers arriving by air at designated facilities while they await the results of the COVID-19 tests they must take upon arrival.
[2] They argue that the rules violate their rights under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982 c 11 [Charter] because they are law-abiding individuals who can safely quarantine at home. Most of the Applicants left Canada under a different set of rules, and now face extra expenses and fear that their security may be jeopardized under the current rules. They submit that the measures are not justified and should not be left in place pending the hearing of their Charter challenge.
[3] The essence of the Applicants’ argument for an interlocutory injunction is set out in the following passage from their factum (Written Representations of the Applicants at para 7, Applicants’ Record [AR] at p 113):
The Applicants, and countless Canadians have been and continue to be unjustifiably detained in federal facilities without due process and in breach of their right to the presumption of innocence, to counsel, to appear before a judge to seek release, and in interference with their right to enter and leave the country. As a result, both the plethora of individuals that are directly affected by this Order, and Canadian democracy itself, are grossly and adversely impacted… The Federal government has presented no or inadequate evidence that it is necessary to forcibly detain returning Canadians, as opposed to the reasonable and minimally impairing alternative of allowing them to quarantine in their own homes.
[4] The Respondent argues that the Applicants have not met the very high threshold that applies to an application to suspend the operation of a law or regulation on an interlocutory basis. They submit that the Court should be cautious in interfering with the operation of a public health measure prior to a full constitutional review on the merits.
[5] The Respondent submits that the fact that the Applicants may have to change their travel plans and may have to incur extra costs because of the current rules is not a basis to suspend important public health measures that have been adopted based on current scientific advice in response to the threats associated with the emergence of new variants of concern. Any suspension of these measures would have a significant negative impact on public health at a time when the COVID-19 pandemic is already posing significant challenges in Canada, with tragic consequences for thousands of people.
[6] The crux of the Respondent’s position is expressed in its factum at paragraph 1 (Respondent’s Record [RR], Vol V at p 879):
It is difficult to overstate the global impacts of COVID-19, the infectious and potentially fatal disease caused by the SARS-CoV-2 virus. The introduction and spread of the virus and its variants into Canada poses an imminent and severe risk to public health in Canada. The Applicants seek to suspend public health measures implemented to reduce the introduction and further spread of COVID-19 and the new variants of the virus by decreasing the risk of importing cases from outside the country.
[7] For the reasons explained below, this application for an interlocutory injunction will be dismissed.
[8] Any harm to the Applicants’ rights and freedoms from a temporary stay at a hotel is not a sufficient basis to suspend a significant public health measure that is based on the advice of scientific experts, and seeks to prevent or slow the spread of COVID-19 and its variants into Canada. The reasonable alternative proposed by the Applicants, namely immediately quarantining at their residence, does not take into account the evidence that 1-2% of air travellers arriving in Canada after having taken a COVID-19 test shortly prior to departure were nevertheless testing positive upon arrival in Canada, nor does it reflect the evidence that individuals in quarantine continued to pose a risk of spreading the virus by their contact with others.
[9] The risk of importing one of the more transmissible and more dangerous COVID-19 variants is demonstrably significant. Based on the evidence before me, I conclude that it would not be just or equitable to suspend the operation of the challenged quarantine measures pending the determination of the merits of the Applicants’ Charter claim.
II. Background
[10] In order to contextualize the Applicants’ claims, it is helpful to set out some of the background facts regarding the COVID-19 pandemic and the emergence of new variants, as well as the impugned Order-in-Council, before reviewing the evidence of the Applicants.
A. COVID-19 and its Diagnosis
[11] COVID-19 was first detected in China in December 2019 and, by March 2020, the World Health Organization (WHO) had declared a global pandemic. Since then, the Government of Canada, as well as provincial and local governments, have adopted a wide range of public health measures to try to prevent or slow the spread of the SARS-CoV-2 virus – the virus that causes the potentially severe and life-threatening respiratory disease of COVID-19. As of March 11, 2021, one year after the WHO declared a global pandemic, there had been 899,757 known infections and 22,370 deaths resulting from COVID-19 in Canada. Over time, scientists have determined that people can transmit the virus while pre-symptomatic or asymptomatic.
[12] There are primarily two types of tests for COVID-19: (i) molecular tests; and (ii) antigen tests. The majority of molecular tests use the Polymerase Chain Reaction (PCR) method. The evidence indicates that PCR testing is more accurate and can the identify presence of genetic material before a person exhibits symptoms or when a person is asymptomatic. PCR tests allow for screening of the same sample for genetic markers to detect the presence of variants of concern, which will be discussed in further detail below. Other molecular testing technology exists and includes Reverse Transcription Loop-mediate isothermal AMPlification, which functions in a manner similar to PCR, but has slightly lower sensitivity and specificity.
[13] Antigen tests often do not require a laboratory, and a result can be determined in under 30 minutes. Antigen tests are useful to detect infected people with a high viral load, which is at the peak or near-peak of their infection. However, antigen tests are less reliable in identifying people who are newly infected when they can still pass on the virus to other people. Further, the evidence suggests that Antigen tests are far more prone to false-negative results if a person has low amounts of the virus in their body.
[14] Molecular tests, PCR in particular, are superior throughout the detection period since they can amplify small amounts of viral genomic material, as compared to the antigen tests, which do not have a similar amplification mechanism and therefore depend on a higher starting viral load. For this reason, the public health measures adopted rely on molecular testing.
B. Emerging Variants of the COVID-19 Virus
[15] As with other viruses, the virus that causes COVID-19 naturally mutates over time through a change in its genetic material. While not all variants are of public health concern, some variants cause increased transmissibility, and an increase in virulence (i.e. the severity of the disease), or a decrease in the effectiveness of available diagnostics, vaccines, and treatments. These are known as variants of concern (VOC). At the time of the hearing, the record reflected three such VOC having been identified for COVID-19, while other variants remained under study.
[16] On December 18, 2020, Public Health England designated a new VOC identified as B.1.1.7, which had been circulating in the United Kingdom since at least September 2020. On December 18, 2020, South Africa also reported a new VOC, which was ultimately labelled as B.1.351. By December 29, 2020, the European Centre for Disease Prevention and Control assessed that the introduction of the B.1.1.7 and B.1.351 variants was concerning and could result in an increase in hospitalizations and deaths. Evidence emerged that the B.1.1.7 VOC is up to 70% more transmissible than the previously circulating virus.
[17] A further new VOC originating from Brazil was identified on January 9, 2021, and was labelled the P.1 variant. Evidence emerged from scientific studies that both the P.1 and B.1.351 variants were more transmissible than earlier strains of the virus, and that vaccines were potentially less effective against them. It was also revealed that the P.1 variant might evade protective immunity from prior infection, so that people were susceptible to reinfection even if they had previously recovered from an earlier strain of COVID-19.
[18] The emergence of the COVID-19 VOC triggered a series of responses in Canada and abroad.
[19] As of December 27, 2020, there were six known or suspected cases of the B.1.1.7 variant in Canada. The Government of Canada suspended all incoming flights from the United Kingdom until January 6, 2021, and implemented a pre-departure testing requirement for all travellers entering Canada by air on January 7, 2021. As of that date, travellers entering Canada were required to provide written proof of a negative COVID-19 molecular test performed no more than 72 hours prior to boarding their flight to Canada, or a positive test result from between 14 to 90 days prior to departure.
[20] By February 11, 2021, there were 458 known COVID-19 cases in Canada involving a VOC, including the first detected case of the P.1 variant from Brazil. In addition, data from two studies of incoming travellers to Canada showed a threefold increase in the number of flights with at least one positive case between September 2020 and January 2021. This data confirmed that these numbers had increased despite a relatively stable volume of international air passengers arriving into Canada during this period (i.e. the increase showed that a higher proportion of travellers were infected when they arrived in Canada).
[21] Several other important data points also emerged during this period. Between September and December 2020, after the requirement for pre-departure testing was imposed, approximately 2% of travellers were testing positive for COVID-19. Evidence from an Alberta pilot project, which was conducted at the Calgary International Airport and the Coutts land border crossing, showed that international travellers arriving in Canada were exposing and potentially infecting others with whom they had contact during the period when they were instructed to remain in isolation and to quarantine at home. The Alberta study also revealed that, even after the pre-departure testing was implemented, 1.86% of participants tested positive within 14 days of their return, 68% of whom tested positive on arrival. As one of the Respondent’s affiants explains: “In other words, for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19” (Affidavit of Kimby Barton, RR, Vol 1 at p 10).
[22] Data from the Alberta study as well as a McMaster Health Labs testing pilot showed that the majority of imported COVID-19 cases were detected on arrival (67-69%), but a further 25.8% were only identified by testing at day seven, with the remaining 5.6% positive cases identified by testing at day 14. Additionally, data from testing of travellers on flights from January 10-18, 2021, arriving from a country lacking the resources to administer pre-departure testing showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers.
C. Public Health Measures and Orders-in-Council
[23] To respond to the changing landscapes, since the start of the COVID-19 pandemic in March 2020, the Governor-in-Council or Administrator-in-Council has issued 47 Orders-in-Council pursuant to section 58 of the Quarantine Act, SC 2005, c 20, which sets out the following requirements for emergency orders:
Order prohibiting entry into Canada
Interdiction d’entrer
58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that
58 (1) Le gouverneur en conseil peut, par décret, interdire ou assujettir à des conditions l’entrée au Canada de toute catégorie de personnes qui ont séjourné dans un pays étranger ou dans une région donnée d’un pays étranger s’il est d’avis :
(a) there is an outbreak of a communicable disease in the foreign country;
a) que le pays du séjour est aux prises avec l’apparition d’une maladie transmissible;
(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
b) que l’introduction ou la propagation de cette maladie présenterait un danger grave et imminent pour la santé publique au Canada;
(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
c) que l’entrée au Canada de ces personnes favoriserait l’introduction ou la propagation de la maladie au Canada;
(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.
d) qu’il n’existe aucune autre solution raisonnable permettant de prévenir l’introduction ou la propagation de la maladie au Canada.
[24] Of relevance to this injunction application is the Order-in-Council adopted in response to the rapid rise in the number of detected cases and VOC in Canada and the cumulative evidence gathered by the Alberta and McMaster Health Lab studies, which spurred government officials to consider further preventive measures.
[25] On February 14, 2021, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC 2021-75, (2021) C Gaz, Part 1, Vol 155, No 8, 673, as corrected by C Gaz, Part 1, Vol 144, No 9, 854 [PC 2021-75] came into effect, establishing a number of requirements intended to add to the existing protections against the importation of new variants of COVID-19 into the country. These measures include:
a) pre-departure COVID-19 molecular testing;
b) COVID-19 molecular testing upon arrival in Canada;
c) a suitable 14-day quarantine plan;
d) a requirement to book prepaid accommodation at a government-authorized accommodation for a three-night period, beginning on the day of arrival in Canada;
e) daily reporting of symptoms following arrival in Canada;
f) a further COVID-19 molecular test on or about day 10 after arrival.
[26] Two types of government-approved facilities are contemplated for air travellers under the measures in PC 2021-75: (i) a government-authorized accommodation (GAA) and (ii) a designated quarantine facility (DQF). First, air travellers must go to a GAA near their first port of entry where they wait for the results of their molecular testing, which they are required to take upon arrival. GAAs are hotels that air travellers must pre-book and prepay for a three-night stay at their own expense. Asymptomatic travellers may check-out of the GAA upon receiving a negative result from their COVID-19 test taken upon arrival (they must complete the remainder of the 14-day quarantine at home, however). Those who test positive are contacted by a Public Health Agency of Canada (PHAC) Quarantine Officer to verify that they continue to have a suitable isolation plan and are able to get there by a private mode of transportation. If travellers do not have a suitable place to isolate, the Quarantine Officer will direct them to a DQF to isolate for the remainder of their 14-day mandatory isolation.
[27] In addition to housing COVID-19 positive air travellers who do not have a suitable isolation plan, DQFs are for air travellers who are showing symptoms of COVID-19 upon arrival, those who arrive without an approved pre-departure test (i.e. a molecular COVID-19 test), or those who refuse to be tested upon arrival.
[28] On March 21, 2021, Order-in-Council PC 2021-75 was replaced by a virtually identical one: Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC 2021-174, (2021) C Gaz, Part 1, Vol 144, No 14, 1499 [PC 2021-174], which was set to expire on April 21, 2021. PC 2021-174 has the same purpose and largely mirrors PC 2021-75. Additionally, it sets out limited exceptions to the requirements for air travellers to stay at a GAA. These exceptions include persons entering Canada to receive essential medical treatment or those returning to Canada after having received essential medical treatment elsewhere, and persons entering Canada for the purposes of providing emergency services within 14 days of entry.
[29] Although PC 2021-174 and PC 2021-75 are necessarily related, the injunctive relief sought by the Applicants asks this Court to suspend PC 2021-174 pending the determination of their application on its merits, given that PC 2021-75 was repealed when PC 2021-174 came into effect. Specifically, the Applicants impugn the requirement to stay at a GAA while awaiting test results and the stipulation that certain individuals would have to go to a DQF upon arrival if they had symptoms of COVID-19, or had failed to obtain a molecular pre-departure test and/or refused to undergo a test upon arrival.
[30] At this juncture, a brief description of the individual circumstances of the Applicants will be useful, before turning to an analysis of the legal issues that arise.
D. The Applicants
[31] Barbara Spencer is a former resident of Ontario who moved to Mexico on a permanent basis in 2011 after her retirement. Since then, she has returned to Canada each year to visit family and friends. She was scheduled to return in June 2020, but the airline on which she had booked tickets declared bankruptcy. Ms. Spencer wants to return to Canada to see her family, most notably her first great-grandchild, and also because she has a medical concern and wants to see her family doctor to discuss it. She says that she strongly fears for her safety and does not feel comfortable remaining at a federal facility.
[32] Sabry Mohammad Belhouchet is a resident of Ontario. His father passed away on January 15, 2021, and Mr. Belhouchet went to Algeria to attend to his father’s estate and to help his mother through this difficult period. He had planned to return on or about April 1, 2021, subject to completing the arrangements for his father’s estate and securing a suitable flight. He indicates that he objects to being required to submit to a COVID-19 test upon his arrival because he will have been tested prior to boarding his flight from Algeria, and again during the course of his travels back to Canada. He says that the fees associated with staying at a federal facility will create financial hardship for him as he has paid for travel expenses to and from Algeria and has not worked for the duration of his visit, which is approximately three months.
[33] Cindy Crane is a resident of Ontario who moved to La Paz, Mexico with her husband in the hope that the warmer climate would improve her chronic pain from certain health conditions. She typically spends summers in Canada and winters in Mexico. She left for Mexico in November 2019, expecting to return in spring 2020, but she has not been able to do so because of pandemic-related travel restrictions. Ms. Crane wants to return to Canada to visit her family and, in particular, because she needs to visit her doctor for some follow-up appointments relating to a cancer diagnosis she received. She says that she has safety concerns about staying at a federal facility and that the fee will impose an undue financial burden on her as a retiree.
[34] Norman and Denise Thomson are residents of Saskatchewan who travelled to their home in Mexico on October 31, 2020.When they left they understood that they would need to have a COVID-19 test prior to their return to Canada and that they would have to quarantine for 14 days following their arrival. They initially planned to return in the first or second week of March to accommodate the quarantine requirements so that Mr. Thomson could commence his training on April 25 and would be able to safely resume his seasonal employment as a water bomber pilot for the Government of Saskatchewan. However, upon hearing that the requirements were changing, Ms. Thomson changed her plans and returned to Canada early in order to avoid the mandatory quarantine stay at a government-approved facility because her concerns about doing so had had a negative impact on her mental health. Mr. Thomson stayed past their initial return date because his physical presence was required in Mexico to finalize the purchase of a property. As of the date of the hearing, Mr. Thomson was still in Mexico.
[35] Dennis Ward is a resident of Alberta who went to his home in Mazatlán, Mexico on January 16, 2021. At the time he left, the rules required him to take a COVID-19 test prior to returning and to quarantine at his home for 14 days. He explains that he went to Mexico for his mental and physical health and to have dental work completed because it is less expensive there than in Canada. Mr. Ward had planned to return to Alberta once he had recovered from his dental surgery, but now faces the extra expense and restrictions associated with a mandatory stay at a government-approved facility before he is allowed to quarantine at home. Mr. Ward states that if these rules remain in place, he will look into the possibility of driving across the border because the land crossing rules do not impose the same costs or restrictions.
[36] Reid Nehring is a resident of Alberta who travelled with his wife to their second home in Mazatlán, Mexico on December 26, 2020. He had planned to return to Alberta in February to attend to some business-related issues, but was unable to do so because of flight cancellations and uncertainty about the rules. He says that he objects to having to quarantine upon his arrival at the Calgary airport before returning to his home in Leduc, Alberta. He also objects to the government “insert[ing] a foreign object into [his] body under the guise of testing”, when he will have had a PCR test just prior to his departure from Mexico.
[37] Michel Lafontaine is a resident of Quebec who went to Florida with his wife on December 29, 2020, intending to return towards the end of April 2021.He says they left Canada because they were alarmed by the increasingly dire statements by government officials about the risks of COVID-19, including concerns that the health care system might be overwhelmed by an upsurge in cases. While in Florida, Mr. Lafontaine and his wife have received both doses of a COVID-19 vaccine. Mr. Lafontaine states that they wish to return to Canada because they do not want to be in the United States for an extended period of time so as to be subject to the scrutiny of the Internal Revenue Service or the Canada Revenue Agency. They also wish to visit friends and renew prescription medication. Mr. Lafontaine objects to being forced to stay at a government-approved facility when he returns because he says these rules ignore the fact that he and his wife have been fully vaccinated at the time of their return.
[38] The final Applicant, like Ms. Thomson, filed evidence in support of the injunction application, but has since returned to Canada. Blain Gowing is a resident of Alberta who travelled with his wife to their second home in Mazatlán, Mexico on January 16, 2021. He says they were concerned with the alarming rise of COVID-19 in Alberta and felt safer being in Mazatlán because it has a very low COVID-19 rate and it has implemented several public health measures to control the spread of the virus. While they were in Mexico, Canadian airlines cancelled all direct flights between Canada and Mexico, so their only way home was to fly to the United States and from there to take a connecting flight to Canada. Shortly prior to the hearing, counsel for the Applicants learned that Mr. Gowing had returned to Canada and had stayed at a government-approved facility while waiting for his test results; no evidence was submitted about his experience.
[39] In addition, the Applicants filed affidavits from Steven Duesing and Nicole Mathis, who are applicants in a companion proceeding. Both had left Canada and were required to enter a DQF when they returned because the COVID-19 tests they had obtained were not approved under the Order that was then in force (a prior version of the Order was in effect when they had returned, but it included the same terms being challenged here regarding a mandatory stay at a government-approved facility).
[40] Nicole Mathis is a resident of Alberta and she and her husband are pastors at their church. Each year they have recorded a music album that they distribute to their congregates; this music is produced in Dallas, Texas. Although their plans were somewhat disrupted by the pandemic, Ms. Mathis made arrangements to fly to Dallas to work with the music producers on an album; the singers remained in Edmonton and participated remotely. Ms. Mathis planned to fly to Dallas on January 24, 2021, and return to Canada on January 28, 2021. Prior to booking these arrangements, she confirmed that she would be required to take a COVID-19 test prior to her departure from Texas and that she would then be eligible for a reduced quarantine period under the International Border Testing Program had been implemented at the Calgary airport at that time. She took a COVID-19 test in Dallas, as planned, but when she arrived in Canada she was advised that the antigen test she had taken was not approved under the Canadian program, and she was therefore required to undergo a new test at her own expense and to remain in a DQF pending the results of that test.
[41] Ms. Mathis states that she asked what would happen if she did not go to the DQF and was advised by police officers that she would be detained and put into a police cruiser and escorted to the DQF. She had called her husband to tell him what was happening and she states that neither of them were advised of the name or location of the DQF. She was not offered the opportunity to speak with a lawyer. When she arrived at the hotel that was serving as the DQF, she called the PHAC and asked what would happen if she decided to leave the facility; she was advised that there was a penalty of up to six months incarceration and/or a fine of up to $750,000.
[42] In the end, Ms. Mathis decided to pay for a test that would deliver results within 12 hours, and she was able to obtain her negative test results later that night. However, there were no PHAC officials at the DQF by that time and so she had to remain in the facility overnight before she could be discharged. In her affidavit, Ms. Mathis states: “This ordeal has been very traumatic, as all my Charter rights were suspended and I was taken to a secret location where even my husband was not informed of my whereabouts. I was being guarded by a security guard and threatened with jail time and six figure fines if I did not comply. I feel abused and betrayed by my government” (AR pp 69-70).
[43] Steven Duesing is a resident of Ontario. On December 25, 2020, he travelled to South Carolina in the United States to visit his girlfriend, whom he had not seen since July 2020. He was planning to return on January 31, 2021. While Mr. Duesing was in the United States, the rules changed and he was required to have a COVID-19 test prior to his return. The Canadian websites he consulted did not advise which type of test was acceptable. He then contacted a general public health number in the United States and was advised of the two types of testing options. He made arrangements to have an antigen test, because it provided results faster than a molecular PCR test. When Mr. Duesing arrived at the Toronto airport, he was advised that his COVID-19 test was not valid because it was not a PCR test, and that he had to take a PCR test and quarantine at a federal facility for 48 hours while awaiting the results of that test.
[44] Mr. Duesing says that his passport was taken from him and only returned when he boarded the vehicle taking him to the federal facility; he also states that he asked where he was being taken but was not informed of the name or location. He says that he witnessed others being treated similarly, including a young woman who was upset and in tears when she was told she would have to go to a DQF. Mr. Duesing asked what would happen if he chose not to board the shuttle to the DQF and he was told he would be arrested. He observed police officers, a police vehicle, and a court services vehicle nearby. Mr. Duesing then went to the DQF, which turned out to be a Radisson Hotel near the airport, where he stayed until he received his negative test result. During his two-night stay at the hotel, he says that he received substandard food and was told on several occasions not to take any pictures of the facility.
[45] Mr. Duesing explains his reasons for joining in the legal proceedings in the following way: “I decided to speak to the media and join this action because I do not want what happened to me to happen to other people…. I believe what happened to me was wrong, and it’s certainly not something I expected would ever happen in Canada…. I believe it is important for Canadians to know about these federal quarantine facilities and that’s why I have decided to speak out” (AR at p 88).
[46] This is the evidence submitted by the Applicants in support of their application.
[47] With this background, we turn to the legal issues in this case.
III. Issues
[48] The only issue at this stage of the proceeding is whether the Applicants have met their burden of establishing that it is just and equitable to issue an interlocutory injunction pending a full hearing of the merits of their Charter challenge to the Orders.
[49] It should be noted that the hearing of the Applicants’ case on its merits, together with several other similar challenges, is now scheduled for June 1-3, 2021.
IV. Analysis
[50] The familiar three-part test for the grant of an interlocutory injunction was recently summarized by the Supreme Court of Canada in R v Canadian Broadcasting Corp, 2018 SCC 5 at paragraph 12 [CBC]:
… At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious. The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits.
[Footnotes omitted.]
[51] The three elements of the test are cumulative, but strength in one factor may overcome weakness on another (see Monsanto v Canada (Health), 2020 FC 1053 at para 50 [Monsanto]). It is important to remember that an interlocutory injunction is equitable relief, and a degree of flexibility must be preserved in order to ensure that the remedy can be effective when it is needed to prevent a risk of imminent harm pending a ruling on the merits of the dispute. This was reaffirmed in Google Inc v Equustek Solutions Inc, 2017 SCC 34 at paragraph 1, where the Supreme Court of Canada noted that “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case.”
[52] There are certain special considerations that apply in cases like this one, where the claimants seek to suspend the operation of legal measures adopted pursuant to statute. The “careful balancing process” that must be undertaken in a case such as this was described by the Supreme Court of Canada in RJR – MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR – MacDonald] at pp 333-34:
On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.
On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation must be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly the final resolution of the dispute.
[53] As the Supreme Court of Canada stated in Harper v Canada (Attorney General), 2000 SCC 57 [Harper] at paragraph 9: “[c]ourts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.”
A. Serious issue to be tried
[54] In most interlocutory injunction cases, the “serious issue to be tried” threshold is not a high bar – it is often summarized as merely requiring the judge to make a preliminary assessment of the case to ensure that the claim is neither “vexatious nor frivolous” (RJR – MacDonald at p 337). There are exceptions, including where the interlocutory injunction would provide the same relief as sought at trial, such that granting it would “impose such hardship on one party as to remove any potential benefit from proceeding to trial” (RJR – MacDonald at p 338; see also Monsanto at paras 44 and 56).
[55] The Respondent submits that this case should be assessed against the higher standard of whether the Applicants have established that they are likely to prevail, because the Applicants seek the same remedy as they are pursuing in the underlying application – namely, an Order to suspend the operation of the requirement that incoming air travellers stay at a GAA or DQF while awaiting the results of their COVID-19 test.
[56] The Applicants contend that the lower threshold applies because the decision on this motion will not put an end to the litigation. They say that there is no doubt that their case, as well as the other similar challenges that are scheduled to be heard at the same time, will proceed whether or not they receive an interlocutory injunction. They also submit that it would be unfair to hold them to the higher threshold in light of the fact that the Respondent’s evidence is “at its highest” in the sense that it has not been subjected to cross-examination. They urge that it would not be appropriate to engage in any serious assessment of the strength of their case at this stage and that doing so would unfairly prejudice their interests.
[57] In light of my findings on the two other elements of the test for an interlocutory injunction, as well as my overall assessment of the equities of the case, it is not necessary to engage in a lengthy review of the merits of the Applicants’ case.
[58] The Respondent concedes that this is a “suspension” case and so the higher threshold that applies when a party seeks a mandatory injunction does not apply. While there is force to the Respondent’s contention that a higher threshold should be applied at the first stage of the analysis, because granting the remedy the Applicants seek on this motion would in substance provide them with much of the relief they seek in the underling application, for the reasons set out below I am not prepared to dismiss the application on this basis alone.
[59] I accept that in the circumstances of this case, the strength of the Applicants’ case must be a significant factor in the outcome of their motion for interlocutory relief (see Monsanto at para 57). However, it is not the only factor. In light of the early stage of the litigation, the fact that the underlying application will soon come on for a full hearing where the Charter issues can be fully presented and considered and the fact that I have found that at least one of the Applicants’ arguments is worthy of further consideration, this is not an appropriate case to dismiss the application solely on the basis that they have not made out a sufficiently strong case on the merits for the purposes of the first stage in the interlocutory injunction test.
[60] Turning to a review of the substance of the claims, the Applicants argue that the Order infringes their rights under sections 6, 7, 9, 10(b), 11(d) and (e), as well as section 12 of the Charter. As will become evident below, I find that two elements of the Applicants’ claim are sufficient to meet the threshold to establish a serious issue for the underlying application.
[61] To begin, section 7 of the Charter guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Respondent concedes that the mandatory quarantine provisions in the Orders requiring stays at DQFs or GAAs engage the Applicants’ liberty interests under section 7, but claim that this is done in a manner that is consistent with the principles of fundamental justice.
[62] The Respondent points out that the jurisprudence has found that section 7 is fundamentally concerned with “capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a manner that runs afoul of our basic values” (Canada (Attorney General) v Bedford, 2013 SCC 72 at para 96 [Bedford]). In Bedford, the Supreme Court of Canada identified the basic values against arbitrariness, overbreadth and gross disproportionality (see also Carter v Canada (Attorney General), 2015 SCC 5 at para 72 [Carter]).
[63] It is not necessary to conduct an exhaustive analysis of all of these elements of fundamental justice. The focus of the Applicants’ attack under section 7 relates to the argument that the Order is arbitrary.
[64] The Applicants submit that the Order draws arbitrary distinctions between air travellers who are prepared and able to quarantine at home, and those arriving at the land border who pose similar risks but are not forced to pay to stay at a GAA while they await the results of their COVID-19 test. This would include individuals who fly to an American border city and cross the land border by car. They go further to argue that the arbitrariness of the Order is made even clearer when the treatment of air travellers is contrasted with the requirements imposed on residents of Canada who actually test positive for COVID-19. Asymptomatic, law-abiding Canadians arriving by air are required to stay at a GAA for up to three days waiting for the results of their COVID-19 test, rather than being allowed to stay in the comfort and security of their own homes. At the same time, Canadians who have tested positive are not subjected to mand