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Pedestrians outside the Hudson’s Bay flagship store in Toronto on Dec. 10, 2020.

Aaron Vincent Elkaim/The Globe and Mail

Hudson’s Bay Co. ULC is going to court in a bid to ease retail lockdowns in Ontario’s Peel Region and Toronto.

In an attempt to salvage what remains of the crucial holiday shopping season in Toronto and Peel – which include some of the country’s top-performing malls – Canada’s oldest retailer has applied for a judicial review of the Ontario government’s restrictions on non-essential retail.

A judicial review is a procedure designed for courts to review whether government decisions are reasonable. In its application filed with the Ontario Superior Court on Thursday, HBC called the lockdowns “irrational,” “arbitrary” and “devoid of logic and consistency.” HBC and other retailers have argued that stricter physical distancing for all stores, rather than shutdowns of some stores, would be a more effective measure to keep shoppers safe.

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In the midst of a second wave of the COVID-19 pandemic, Ontario shut down all non-essential retailers in Toronto and Peel on Nov. 23. Stores selling essential items – including some big-box chains such as Costco and Walmart – have been allowed to remain open at 50-per-cent capacity. Other retail stores and small businesses are permitted to sell items for delivery or curbside pickup only. This has caused “disproportionate harm” to retailers classified as non-essential, HBC’s application states.

Ontario logged a record number of new COVID-19 cases on Thursday. Health officials reported 1,983 new infections, the largest number in a single day since the crisis began.

The retailer is asking the court to schedule a hearing urgently on the matter. HBC’s application is asking the court to find that the regulations are unreasonable. It wants the court either to quash the lockdown regulations allowing exempted retailers to sell non-essential goods or, if not, to rule that department stores should be included in the list of essential retailers. It is also asking for legal costs and other relief.

“Quite simply, the lockdown is having the effect of giving retailers who are permitted to remain open a source of additional revenue they would not normally have, at the expense of HBC and other retailers, large and small, who cannot open,” the application states. “It is also increasing the risk of infections by crowding a smaller number of stores with a much expanded customer base – during the busiest shopping season of the year.”

In a statement, a spokesperson for Ontario Attorney-General Doug Downey said that the province has been served with the notice of application and officials are currently reviewing it. Nicko Vavassis said in the statement that it would be “inappropriate” to comment further on a case before the courts.

Hudson’s Bay has 12 department stores in Toronto and Peel. Those stores typically make 15 to 20 per cent of their annual sales in the month of December alone, according to the application, which said the timing of the lockdown is “crippling” for the business.

Last week, a coalition of nearly 50 retailers, including Hudson’s Bay as well as Canadian Tire and Indigo, called on the Ontario government to allow retailers to reopen, and to impose capacity limits applying to all stores, capping shoppers at 25 per cent of building capacity

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But Ontario Premier Doug Ford rejected that idea last week, saying his decisions are informed by advice from the province’s Chief Medical Officer of Health and others.

Small-business groups have also been pushing the Ontario government to change its approach to the restrictions. On Friday, business improvement area (BIA) organizations across Toronto were teaming up on a campaign called #ThinkOutsideTheBigBox, arguing that small businesses are well-positioned to implement safety measures such as controls on in-store crowding and contact tracing.

In its application, HBC said that retail stores are “a negligible source of new infections, and department stores (as a subset of retail) represent a fraction of a fraction of COVID-19 cases.”

Ontario’s Chief Medical Officer of Health David Williams declined to comment on the HBC case on Thursday, but told CTV News that it can be difficult to specifically trace COVID-19 infections to shopping trips.

“It’s very hard to attribute it, because they’re not only doing retail, they’re going to restaurants and they’re socializing. So which one was it?” Dr. Williams said. “All you need is one super spreader in the place and you have a problem.”

With a report from Laura Stone

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