Ontario judge dismisses appliance chain's bid to be considered a 'hardware store'

·3 min read

An Ontario judge has dismissed a bid by Canadian Appliance Source to be considered a hardware store in order to be deemed an essential service and remain open to in-person shopping under the province's lockdown rules.

In a decision that quotes literary greats from Shakespeare to Mark Twain, Justice Paul Perell said there is no ambiguity about what Ontario meant when it specified that hardware stores in lockdown zones could remain open to the public.

The province meant it in the "conventional everyday sense" of what a person through "common experience and observation" would recognize as a hardware store, the judge said in the Dec. 10 decision.

"The Ontario Legislature relied on the everyday meaning attributed by observation and experience for what counts for a hardware store," Perell said.

The appliance retailer is "not what is conventionally known as a hardware store," he added.

Canadian Appliance Source operates five retail stores in Toronto and Peel, which have been under lockdown since Nov. 23.

The retailer's busiest months are usually November and December, when the store rolls out its Black Friday and Christmas sales, according to court documents. Walk-in shoppers in the store's showrooms make up about 80 per cent of sales.

Canadian Appliance Source argued that other provinces, including Manitoba, Saskatchewan and British Columbia, consider appliance retailers a subcategory of hardware stores and are allowed to operate during lockdowns.

It took the province to court challenging the interpretation of its policies and the meaning of a hardware store, rather than on the validity the policy itself, the judge noted in his decision.

"Although there is a great deal of public clamour and protest about the fairness in application of the COVID-19 regulations as they apply to businesses small and large ... (Canadian Appliance Source) does not join the protesters," Perell said.

Instead, the retailer's complaint was that law enforcement officers were improperly interpreting and applying the rules, he said.

"Thus, the application before the court is a matter of statutory interpretation," Perell said.

"If the words of the statute when read in their context are precise and unambiguous, then the words should be given their natural and ordinary sense."

The court must interpret the words literally and in accordance with their plain meaning "even if the consequences are absurd or unjust," he said.

The judge said the appliance store's position that a hardware store sells appliances and therefore an appliance store is a hardware store is circular argument.

Referencing the Shakespeare's famous quote "a rose by any other name would smell as sweet," Perell said: "A thing is what it is."

He added: "Arguments about definitions and names are inherently circular, as Mark Twain recognized when he humorously attributed to Eve the naming of things found in the Garden of Eden under the pretext that the think looks like the thing."

The appliance store's "forced definition" of a hardware store is what's known in legal drafting as a "Humpty Dumpty" definition, the judge said. The term is an allusion to the passage in Lewis Carroll's "Through the Looking-Glass" when the character tells Alice that a word is "what I choose it to mean — neither more nor less."

Perell noted that these definitions are to be avoided "because it is confusing to define a word in a sense that is different from or contrary to the meaning conventionally ascribed to it."

In this case, he said the literal meaning of hardware store provides a definition that advances the "delicate balancing" attempted in the regulations under the Reopening Ontario Act.

This report by The Canadian Press was first published Dec. 18, 2020.

Brett Bundale, The Canadian Press