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“If there was a concern, these stores would not be open the way they are,” Lisus said, adding that there is neither logic nor evidence of safety in allowing people to pick up groceries and then linger over non-grocery purchases.
“Look at what is happening with all of these stores,” he said.
HBC is arguing to be treated like Walmart, saying it is the only other comparable store in Ontario.
But Ogden contended that more stores would come to court and demand to reopen if the word “groceries” was struck from the province’s reopening act that mandates the lockdowns.
If there was a concern, these stores would not be open the way they are
Jonathan Lisus, lawyer for HBC
“There are many stores,” he said, citing Nordstrom and Saks, when pushed by one of the judges to specifically list department stores — Saks is owned by HBC.
Odgen also pushed back on HBC’s arguments about public safety, saying the retailer and its experts had not provided sufficient evidence that it would be safe for more department stores to open.
He added that such decisions should not be up to retailers.
“There is a … risk to opening stores to in-store shopping when they don’t have to be open,” he said. “It’s clear that it’s not for retailers, with all due respect to this court, based on the sparse evidence (on) the risk of opening HBC, to decide which stores should open, which stores are essential and to weigh that with the obvious risk of public health.”
Ogden said limiting capacity hasn’t worked in other jurisdictions, pointing out that Alberta recently decreased capacity to 15 per cent from 25 per cent.
He closed his arguments by asserting that “fairness is not the issue” in a situation where a virus “is killing people and causing permanent harm to others.”
Penny said he was unable to say exactly when a ruling would be made by the court, but acknowledged the urgency for HBC and said it would come soon.