Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9294/RHA
CASE NAME: 9294 v. Registrar of the Retirement Homes Regulatory Authority
An Appeal from an Order to pay an Administrative Penalty issued by the Registrar of Retirement Homes Regulatory Authority pursuant to the Retirement Homes Act, 2010, S.O. 2010, c. 11
Elaine Lindo and In Touch Retirement Living for Vegetarians/Vegans Inc. Appellants
-and-
Registrar, Retirement Homes Regulatory Authority Respondent
DECISION ON MOTION
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellants: Peter Eberhard, Counsel
For the Respondent: Jordan Glick, Counsel
Heard in Toronto: January 13, 2015
DECISION AND ORDER
The Registrar of the Retirement Homes Regulatory Authority (the “Registrar” or the “Authority”) issued an Order to Pay an Administrative Penalty (the “Order”) to Elaine Lindo and In Touch Retirement Living for Vegetarians/Vegans Inc. (the “Appellant”) on December 10, 2014, pursuant to section 93(1) of the Retirement Homes Act, 2010, S.O. 2010, c. 11 (the “Act”). The administrative penalty is in the amount of $10,000 and is due on or before January 16, 2015.
Ms. Lindo has appealed the Order. The appeal does not, however, automatically stay the Order. The Appellant has, pursuant to s. 101(2) of the Act, applied to the Tribunal for a stay of the Registrar’s Order. This application, which is opposed by the Registrar, was heard on January 13, 2015.
For the reasons that follow, the Tribunal dismisses the Appellant’s motion.
Background
This is not the parties’ first attendance before this Tribunal. A six-day hearing took place in the Fall of 2013 which was an appeal of the Registrar’s Notice of Decision to Refuse a Licence to the Appellant, In Touch. Ms. Lindo is the principal of In Touch. In affirming the Registrar’s decision, the Tribunal made several findings.
At page 11 of the decision (8241 v. Registrar of the Retirement Homes Regulatory Authority, 2013 CanLII 78366 (ON LAT)), released on November 12, 2013, Vice-Chair Sanford stated:
Ms. Lindo’s deception of the RHRA on her application with respect to her past criminal charges and conviction raises obvious concerns about her ability to operate a retirement home with honesty and integrity. Her attempts to mislead the RHRA inspector and this Tribunal also give ample grounds to believe that In Touch Retirement, with her as its owner and operator, would not operate the home in accordance with the Act. Her refusal to pay the license (sic) fees also raises concerns about her governability and therefore about her ability to be bound by the Act.
She concluded:
The Tribunal has determined, based on the concerns identified above, that In Touch Retirement as operated by Ms. Lindo does not qualify for licensing under the Act.
Since November 2013, the Authority’s inspectors have, as alleged in the Order, attended at the In Touch home on five occasions, and concluded from their inspections that the home was continuing to operate as a retirement home as defined by the Act, without a licence. Mr. Eberhard advised at the motion hearing that approximately 15 persons live at the In Touch home. On November 7, 2014, the Registrar issued an Order to Cease to Operate the home. A prosecution has been commenced under s. 98(1) of the Act and is scheduled to be heard in Provincial Offences court on February 25 and 26, 2015.
The Appellant in her Notice of Appeal asserts that she is not operating a retirement home as defined by the Act in that she only offers accommodation with meals and no other services.
Relevant Statutory Provisions
The following sections of the Act are relevant to the matter before the Tribunal.
Prohibition: operation without a licence
- (1) No person shall operate a retirement home unless the person is licensed under this Act to operate that specific home.
Order to pay administrative penalty
- (1) If the Registrar believes on reasonable grounds that a person has contravened a requirement under this Act, the Registrar may serve an order on the person ordering the person to pay an administrative penalty to the Authority in accordance with the regulations.
Purpose
(2) The purpose of an administrative penalty is to encourage compliance with the requirements under this Act.
Amount of penalty
(3) The amount of the administrative penalty shall reflect the purpose of the penalty and shall be determined in accordance with the regulations, but shall not exceed $10,000.
Content of order
(4) An order for an administrative penalty must set out,
(a) the contravention or contraventions on which it is based, with dates and locations if appropriate;
(b) the amount of the penalty or how it will be determined; and
(c) the time within which and the manner in which the penalty must be paid.
Enforcement of administrative penalty
- (1) An order under section 93 that has not been complied with may be filed with a local registrar of the Superior Court of Justice and may be enforced as if it were an order of that court.
Interest
(2) Section 129 of the Courts of Justice Act applies in respect of an order filed with the Superior Court of Justice under subsection (1), and the date on which the order is filed under subsection (1) shall be deemed to be the date of the order that is mentioned in section 129 of the Courts of Justice Act.
Payment into emergency fund
(3) The Authority shall pay all administrative penalties collected by it into the Fund.
Appeal to Tribunal
100.(1) A person who is served with notice of any of the following decisions of the Registrar or with any of the following orders of the Registrar may appeal the decision or order, as the case may be, to the Tribunal:
A decision to refuse to issue a licence to the person.
A decision to impose a condition on the person’s licence.
An order made under section 89, 90, 91, 93 or 95.
When and how to appeal
(2) To appeal an order or a decision of the Registrar to the Tribunal under this section, a person shall give the Tribunal and the Registrar a written notice of appeal setting out the grounds for the appeal within 15 days after the day the person was served with the Registrar’s order or notice of the Registrar’s decision.
No automatic stay on appeal
101.(1) Despite section 25 of the Statutory Powers Procedure Act, an appeal of an order or a decision of the Registrar to the Tribunal under section 100 does not stay the order or decision, unless the Tribunal orders otherwise in writing.
Application for stay
(2) Upon application, the Tribunal may order a stay of an order or a decision of the Registrar and may do so only if the Tribunal is satisfied that the stay will not cause harm or a risk of harm to a resident.
Analysis
In deciding whether to grant a stay, the Tribunal is guided by the Act, and specifically by s. 101(2) which states the Tribunal may grant a stay only if it is “satisfied that the stay will not cause harm or a risk of harm to a resident” and by the test set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117. Both parties agree that the test enunciated in the RJR case is applicable here.
That test has three elements; is there a serious issue to be tried, will the failure to grant the relief sought cause irreparable harm to the appellant and does the balance of convenience favour the granting of the stay? No single element is determinative. Deficiency in one element may be offset by a strong case for a stay in another element.
The overriding concern is to make a just decision based on weighing these three elements, while complying with the requirement in s. 101(2) of the Act that a stay cannot be granted if it will cause harm or a risk of harm to a resident.
Serious issue to be tried
Mr. Eberhard submits that there is a serious issue to be tried. Mr. Glick concurs. For the purposes of this motion, the issue is whether the Appellant is, in fact, operating a retirement home as defined in the Act, without a licence to do so, contrary to s. 33 of the Act. The fact that the Appellant is not currently licensed and that she has not, in the past year, applied to be licensed, is undisputed. The Tribunal notes that the Appellant in the Notice of Appeal also disputes the Registrar’s authority and/or conduct in imposing a penalty at the maximum amount of $10,000. The Tribunal concludes that the first part of the test is satisfied.
Irreparable harm
The second part of the test concerns irreparable harm to the Appellant. Mr. Eberhard made several submissions on this point. He asserts that Ms. Lindo’s affidavit, the only evidence before the Tribunal, sets out her constrained financial position. Her take home pay is $1,500/month and In Touch operates at a loss of approximately $1,600/month. To require payment of the administrative penalty before the appeal is heard would undermine her ability to have a full and fair hearing on the merits. Mr. Eberhard also questions the Registrar’s arbitrary imposition of a monetary penalty without warning or inquiry and the harm to public confidence that may ensue.
As set out in the background, it cannot be said that the Registrar’s actions came without warning. Since November 2013, persons have continued to reside at the In Touch home, inspectors have attended on numerous occasions and counsel have alluded to written communication between the Authority and Ms. Lindo over the course of the past year.
On its face, requiring payment before the hearing of the appeal of the Order does seem incongruous. It is akin to “payment under protest”, but it is nonetheless the statutory provision. Whatever the order or decision being appealed, as defined in s. 100(1), an application for stay is required.
Mr. Glick submits, based on the case law, citing Baker v. Ontario (Ministry of the Environment), [2013] O.E.R.T.D. No. 21 and Kennedy Electric Ltd. v. Dana Canada Corp., [2005] O.J. No. 1147 (S.C.J.), that mere assertion of irreparable harm is not sufficient. The Appellant must demonstrate that irreparable harm would occur. The possibility that compliance with the Order may create some economic hardship does not meet the criteria required. Further, should the Appellant be successful on the appeal, the “harm” can be cured in monetary terms; that is, the money will be reimbursed by the Registrar. Thus, Mr. Glick submits, it is not “harm” which is irreparable.
The Tribunal agrees. Section 94(3) provides that monetary penalties are to be paid into an emergency fund. By inference, these funds do not disappear into general revenue. Where payment occurs in circumstances such as this, it is incumbent upon the Registrar to, in effect, hold such monies “in trust” in the event of a successful appeal. The possibility of greater harm to this Appellant may arise in the event that she does not make payment and the Registrar turns to enforcement procedures pursuant to s. 94(1) of the Act. That is, however, a more lengthy court process and the Tribunal, having decided not to grant a stay, will take steps to expedite this matter to hearing, a pre-hearing having been scheduled already for February 2, 2015.
The Tribunal is satisfied that there is no irreparable harm to the Appellant. This is not a situation in which the decision or order being appealed is one which revokes an appellant’s licence, resulting in a loss of livelihood and the loss of a business, circumstances in which the irreparable harm is more apparent. And it is worth noting that the RJR test speaks to irreparable harm to an appellant. Potential harm to residents of In Touch is not the consideration in this test. Section 101(2) of the Act refers to harm to residents which would become the next key issue for the Tribunal in the event that the RJR test weighed in the Appellant’s favour. At that point, the Registrar could make submissions regarding harm or risk of harm to argue against granting a stay.
Mr. Eberhard submitted that compelling Ms. Lindo to pay the penalty at this time will cause resultant harm to the residents living there as there will be less money available to her to provide for those residents. In the context of this appeal and the position taken by the Appellant that she is providing only meals and no other services as defined by the Act, this argument for the Appellant is potentially contradictory, and concerning. If the residents are living at In Touch as residents of a “rooming house” as asserted by the Appellant, then they do have the protections afforded by the Residential Tenancies Act, 2006.
Balance of convenience
The third part of the test is that the balance of convenience and the public interest favour the granting of a stay. The Act is public protection legislation, specifically, protection for what may be a vulnerable population in a retirement home, to ensure security, safety and comfort with appropriate care options. This is not a fact situation where the Registrar’s concerns can be said to be speculative given the decision of this Tribunal in November 2013. Mr. Eberhard submits that the greater impact of not granting a stay is on public confidence in a regulatory system that permits a government bureaucrat acting as investigator, prosecutor and judge, to levy a penalty at the maximum allowable amount. The Tribunal has no evidence before it of inappropriate action taken by the Authority in carrying out its statutory duties.
The Tribunal has noted that it may seem incongruous that a stay is not automatic where an order of administrative penalty is levied, but the legislators apparently turned their mind to this and clearly opted for another approach. The statutory scheme is one where compliance with an order is required unless a stay is granted, making it clear that the starting point is that there is no stay.
One can query whether the imposition of an administrative penalty in light of the history between the Appellant and the Registrar will indeed “encourage compliance with the requirements under this Act”, as stated in s. 93(2), but on the other hand, given that history, public confidence in the regulatory scheme may be adversely affected if the Registrar did not have recourse to all compliance tools available to him.
Mr. Eberhard urges that the status quo be maintained pending the appeal. The status quo, if interpreted to be the accommodation for the residents, need not be affected by the decision to refuse a stay of the Order. Maintenance of the status quo for the residents is within the control of the Appellant. He also submitted that a stay for a short period of time would result in no harm in that it would not make matters worse for anyone. That is not the test and indeed is far too low a threshold when considering the public interest issues. The public confidence in the regulation of retirement homes, in all the circumstances of this case, weighs against the strictly financial interests of the Appellant which have not been found to be irreparable. Furthermore, as the Tribunal has found, there is no evidence to suggest that keeping the Order of Administrative Penalty in place would adversely affect the residents.
In considering the three elements of the test in total, they argue strongly against granting a stay pending the appeal. The overall justice of the matter weighs against a stay.
Decision
The Appellant’s motion for a stay of the Order to pay an administrative penalty is hereby dismissed. The matter will proceed to a pre-hearing, as scheduled, on February 2, 2015.
LICENCE APPEAL TRIBUNAL
_________________________
Patricia McQuaid, Vice-Chair
Released: January 15, 2015