Federal Court Denies Injunction Suspending Operation Of COVID-19 "Hotel Quarantine" Orders

• Published date: 05 May 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Government Measures
• Law Firm: Torys LLP
• Author: Ms Alexandra Peterson, Yael Bienenstock and Andrew Bernstein

In Spencer v. Canada ¹, a group of current and former Canadian residents sought an interlocutory injunction suspending certain COVID-19 public health orders directed at returning travellers. The injunction was sought in the context of an application for judicial review challenging the federal government's mandatory quarantine in designated facilities for travellers returning to Canada by air. The applicants argued that the orders violated two Charter rights: the section 7 right to liberty and the section 9 right not to be arbitrarily detained.

Despite acknowledging the significance of the Charter rights, Justice Pentney of the Federal Court denied the applicants' motion for an injunction. The Court accepted that the question of whether the orders were arbitrary was sufficient to establish a serious issue. However, the applicants were unable to establish irreparable and unavoidable harm.

What you need to know

• It remains difficult to obtain an interlocutory injunction in Federal Court. The evidentiary burden to establish non-speculative unavoidable, irreparable harm is a significant hurdle.
• The burden is particularly difficult to meet where the harms were foreseeable or caused in part by the applicants' own conduct. Here, the fact that the applicants had voluntarily left the country during the pandemic contributed in part to the Court's conclusion that any harm they might suffer from the impugned public health orders on return was avoidable.
• Ultimately, injunctive relief is an equitable remedy. The focus of the inquiry is on whether it would be "just and equitable" in the circumstances to grant the injunction Public interest remains an important consideration in the balance of convenience assessment.

Background

The challenged public health orders are part of a series of Orders-in-Council enacted by the federal government under the Quarantine Act. They had been added with the goal of beefing up existing protections against importing of new variants of COVID-19 into Canada. The measures include a requirement for COVID-19 testing (both predeparture and upon arrival) and a suitable 14-day quarantine plan. For air travellers, there is also a requirement to book prepaid accommodation at a government authorized accommodation (GAA) hotel for up to a three-night stay beginning on the day of arrival in Canada, where travellers would be required to remain while awaiting their COVID-19 test results. In addition, any returning traveller testing positive who does not...