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Appellate Litigation

The ongoing pandemic has affected numerous industries, government policies and individuals, resulting in a significant amount of litigation. From insurance and contract disputes to class action suits to challenges of mandatory business closures, courts have been asked to hear a number of unprecedented issues created by COVID-19. Recently, one of those issues has been the new federal policy requiring international travellers to pay out of pocket to stay at a hotel upon arrival in Canada. Recently, the Canadian Constitution Foundation brought a claim on behalf of a group of individuals challenging the constitutional validity of the policy. In the interim, the Foundation sought an injunction requiring the federal government to waive the requirements pending the court’s decision.

Canada’s Mandatory Hotel Quarantine Rules

Effective February 14th of this year, the federal government implemented a new quarantine requirement for all international arrivals by air in Canada. These requirements came in addition to existing rules requiring air passengers to obtain a negative COVID-19 test result shortly before flying, and a mandatory 14-day quarantine upon arrival in Canada. Under the new rules, all flights into Canada must land at one of four international airports in the country, and all passengers are required to make a reservation at an approved hotel, at their own expense, for up to three days.

From there, travellers are required to take another COVID-19 test, and remain in the hotel until they receive a negative result. The traveller is responsible for paying all costs related to the hotel stay, including food, transportation, and security. There are limited exceptions to the rule for unaccompanied minors or unaccompanied dependant adults. The estimated cost of the hotel stay is upwards of $2,000 per person. Travellers are still required to complete the mandatory 14-day quarantine after the hotel stay is finished.

The applicants in the case at hand, three of whom had travelled to visit with a dying parent out of the country, brought an application challenging the regulation saying it was an infringement of their rights under section 7 of the Canadian Charter of Rights and Freedoms. In the interim, the applicants also sought a temporary injunction lifting the hotel stay regulation pending the Court’s decision on the merits of the application.

Party Requesting Mandatory Injunction Must Satisfy Three-Part Test

The Supreme Court of Canada, in the decision RJR–MacDonald Inc. v. Canada (Attorney General), set out the three-part test required to establish the necessity of an interim injunction pending a constitutional review. In the decision, the test was set out as follows:

(1)   The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice; 

(2)   The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3)   The applicant must show that the balance of convenience favours granting the injunction.

Applicants Fail to Establish Reason for Injunction Under Test

The Court was not particularly sympathetic to the applicants’ request for an injunction:

[T]he applicants’ wish to choose to quarantine at home or to stay for free at a hotel, and their spending priorities when they travel abroad during the pandemic, are decidedly first world, economic problems. They are principally money issues that barely raise any discernible constitutional concern.

When examining the application in the context of the three-part test for a mandatory injunction, the Court found that the applicants fell short on nearly each step of the test.

  1. The Court found that there was a small possibility of demonstrating a narrow issue to be tried under section 7 of the Canadian Charter of Rights and Freedoms. This is the section that sets out an individual’s right to “life, liberty and security of the person”.
  2. The Court determined that the applicants would not suffer irreparable harm without an interim injunction in place leading up to the decision on the merits of the case.
  3. Based on scientific information and public policy, the balance of convenience “overwhelmingly” supported the Court’s refusal to grant an interim injunction.

For Unparalleled Legal Guidance on Obtaining Injunctive Relief Contact Milosevic & Associates 

If you require legal guidance with a civil fraud matter and require injunctive relief, contact Milosevic & Associates. Our highly experienced litigation lawyers help our clients see through the dense forest of even the most complicated disputes. We excel at cutting through the underbrush and guiding clients to a creative, cost-effective solution.  Call us at 416-916-1387 or contact us online to learn more about how we can help.