In Spencer v. Canada1, 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.
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 have a suitable isolation plan as well as any traveller who is showing symptoms on arrival, who refuses to be tested on arrival, or who arrived without an approved departure test, must stay at a designated quarantine facility (DQF) for the remainder of their 14-day quarantine.
The applicants were current and former Canadian residents who had travelled outside of Canada for various reasons during the pandemic and either expected to be, or had been, subject to these public health orders on return. They specifically objected to both the requirement of the three-day stay at the GAA while awaiting their arrival test results and the requirement for symptomatic individuals, those arriving without a pre-departure test, or those refusing a COVID-19 test on arrival to go to a DQF.
The Court applied the well-known three-part test for the grant of an interlocutory injunction. Applicants are required to establish:
- a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious;
- that they will suffer irreparable harm if the injunction is refused; and
- that the balance of convenience to the parties favours the grant of the injunction.
At the first stage, the focus of the applicants’ argument was that the public health orders infringed the right to liberty and arbitrarily treated land and air travellers differently. The Court accepted that this argument met the low threshold of “serious question to be tried”. The Court was also convinced that it was conceivable that this potential arbitrariness infringed section 9 of the Charter. The Court emphasized that its conclusion was not a determination of these arguments on their merits, only that they were sufficient to clear the low “serious issue” threshold.
However, the applicants failed to satisfy the irreparable harm requirement. To be irreparable, the harm must not be capable of being cured or adequately compensated in damages. Although the Court acknowledged that equitable relief must retain its flexibility and that some forms of harm do not readily admit of proof, a “sound evidentiary foundation” is nevertheless required. Mere allegations of Charter violations are not sufficient. In this case, some applicants had already returned to Canada and therefore the injunction would serve no practical purpose. Moreover, if successful at the ultimate hearing, those applicants might be able to recover Charter damages which meant that, by definition, the harm would not be “irreparable”. With respect to those applicants who might have to stay at a GAA or DQF while awaiting results of their COVID-19 test, the Court did not accept that this stay would cause them “devastating emotional, relational and spiritual harm”. The applicants’ evidence did not address this purported harm in any detail, and it was not self-evident why a short stay at a hotel prior to spending a further period in quarantine at home would inevitably cause those harms. Importantly, the Court concluded that the applicants voluntarily assumed the risk of these harms because they left Canada during the pandemic knowing that public health measures were in place and more might well be coming.
On the balance of convenience, the Court held that this “element of the test takes special significance in a case involving a request to suspend the operation of a law, regulation, or Order-in-Council”. It found “ample support” for the government’s assertion that any suspension or disruption of the existing public health orders would have a serious, immediate negative impact on public health; whereas the applicants’ arguments that they would suffer irreparable harm, and that the orders in question were not based on scientific evidence, were found not to be persuasive. At the end of the day, the Court found that it would not be “just and equitable” to grant the injunction in light of the evidence of a very real risk that travellers would unknowingly bring a deadly virus or new variant into Canada, which “amply demonstrate[d]” that the public interest lies in not suspending the orders.
Failing to obtain an injunction for an alleged Charter breach is not a surprising outcome. Unless the breach is particularly egregious, courts tend to permit government decisions to stand pending a full determination of the Charter questions on their merits. The full hearing of the applicants’ Charter challenge is scheduled for early June.
1 2021 FC 361
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