DATE: 20051007
DOCKET: C42495
COURT OF APPEAL FOR ONTARIO
WEILER, MOLDAVER and SHARPE JJ.A.
B E T W E E N :
ONTARIO RESTAURANT HOTEL & MOTEL ASSOCIATION
Timothy S. B. Danson for the appellant
Appellant
- and -
CITY OF TORONTO and BOARD OF HEALTH FOR THE CITY OF TORONTO HEALTH UNIT
Ansuya Pachai for the respondents
Respondents
Heard: September 26, 2005
On appeal from the judgment of the Divisional Court (Justice John G. J. O'Driscoll, Justice James D. Carnwath and Justice William P. Somers) dated January 22, 2004.
BY THE COURT:
[1] The Ontario Restaurant Hotel & Motel Association (“ORHMA”) challenges the jurisdictional and constitutional validity of City of Toronto by-law 574-2000, which requires restaurant operators to post the results of food premises inspections (the “Disclosure Program”). ORHMA submits that the city did not have the jurisdiction to enact the by-law under s. 257.2(1) of the Municipal Act, R.S.O. 1990, c. M.45 which confers to the city the power to licence and regulate businesses. It argues that the inspection of food premises and the posting of the results thereof is exhaustively dealt with by the Health Promotion and Protection Act, R.S.O. 1990, c. H.7 (the “HPPA”), and the Food Premises Regulation, R.R.O. 1990, Reg. 562 (the “FPR”), leaving no room for municipal regulation. ORHMA further challenges the by-law pursuant to ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms.
[2] The Divisional Court rejected these submissions and upheld the validity of the Disclosure Program. For the reasons that follow we would uphold the decision of the Divisional Court and dismiss this appeal.
1. The Jurisdiction Issue
[3] In interpreting municipal powers, the narrow approach to jurisdiction advocated by ORHMA has been rejected in favour of a broad and purposive approach. The modern approach presumes that municipal by-laws are validly enacted absent “clear demonstration” that the by-law was beyond the municipality’s powers. The appropriate test to be applied where there are alleged provincial/municipal conflicts is that of express contradiction – that is, there must be an actual conflict in operation. This is known as the “impossibility of dual compliance” test: see 114957 Canada Lteé. v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241.
[4] The appellant suggests that, as Hudson dealt with a situation where the Supreme Court of Canada was considering the omnibus provisions of the Municipal Act, the test is restricted to that situation. Nothing in Hudson or this court’s decision in Croplife Canada v. Toronto (City) (2005), 2005 15709 (ON CA), 198 O.A.C. 35 suggests that the modern approach to interpretation of municipal powers is restricted in this manner.
[5] The appellant submits that, because the province has passed legislation under s. 13(4)(c) of the HPPA permitting placarding to notify the public that premises are closed because there is a health hazard, no other placarding is permitted. The appellant’s suggested interpretation is not consistent with the wording of the legislation. Section 13(4) says that an order under the section “is not limited to” requiring placarding when a restaurant is closed. Further, s. 9 of the HPPA specifically empowers municipalities and local boards of health to create and to provide local programs or services. By providing for cooperation between local boards of health and municipalities, the legislature has indicated an intention inconsistent with the appellant’s argument that the legislation confers exclusive authority on the boards of health and ousts the jurisdiction of the municipality in matters of health.
[6] The Divisional Court concluded that the provisions of the municipal by-law and the HPPA were designed to mesh with one another, not clash. We agree with that conclusion.
[7] In our opinion, the city had jurisdiction to pass the by-law in question. Part XVII.1 of the Municipal Act delegates to city councils a broad authority to enact by-laws for the licensing and regulating business. The by-law in question constitutes regulation of a licensed business. In the United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, the Supreme Court of Canada took judicial notice of the meaning of the word “regulate” and held that the word includes the power to impose restrictions. Taking s. 9 of the HPPA into account and applying the modern approach to the issue of jurisdiction we are satisfied that the Divisional Court was correct in concluding that the licensing powers under s. 257.2(1) of the Municipal Act provided the municipality with the authority to pass the impugned by-law.
[8] The appellant further submits that even if the city had ostensible authority to pass the by-law, the by-law is invalid because it is a colourable attempt by the city to accomplish indirectly what it could not do directly. Specifically, the appellant submits that in enacting the impugned by‑law, the city unlawfully appropriated to itself the authority to enforce provincial legislation that the province was either not enforcing or enforcing inadequately. We do not agree.
[9] The purposes of the by-law as found by the Divisional Court based on the evidence of Dr. Sheela Basrur, the past Medical Officer of Health for the Toronto Board of Health, are to protect the public from health hazards, to educate the public to make informed choices, to encourage restaurant owners to attain and maintain high standards, and to reduce the cost of inspections by reducing the number of re-inspections caused by non-compliance with the FPR. The municipality’s power to licence for purposes of health, safety and consumer protection is explicitly confirmed in s. 150(2) of the new Municipal Act 2001, S.O. 2001, c.25 which appears to codify the common law. Section 150(8)(h) and (i) of the Act also states that the power to license and regulate a business includes the power to regulate the premises used for the business and the persons carrying it on or engaged in it, and the power to regulate or govern the equipment in connection with that business. In passing the by-law the city acted directly. Nothing in the HPPA, the FPR or the mandatory Health Programs and Service Guidelines (issued by the Ministry of Health) ousts municipal jurisdiction to regulate in matters respecting public health. We do not accept the submission that by passing the impugned by-law, the municipality was attempting to do indirectly what it could not do directly.
[10] Accordingly, we would dismiss the appellant’s challenge to the jurisdiction of the city to pass the by-law.
2. Whether the By-law Infringes the Charter of Rights and Freedoms, ss. 2(b) and 7.
[11] The Charter does not prohibit governments from communicating messages that contradict commercial messages. We do not accept the submission that by requiring restaurant owners to post the inspection notices, the by-law restricts their freedom of expression.
[12] Even if we were to accept the appellant’s submission that the by-law infringes the appellant’s right to freedom of expression because it requires restauranteurs to post notices they do not wish to post (a point we need not decide), in our opinion the by-law would be saved by s. 1 and in this regard we are in essential agreement with the reasons of the Divisional Court.
[13] The by-law simply requires the restauranteur to post the results of the HPPA inspection. We do not agree with the appellant’s submission that the impugned by law rests upon an ill-defined policy or with the proposition that “prescribed by law” requires that the law in question be in a single, self-contained legislative enactment.
[14] The by-law is founded on significant public health and consumer protection imperatives, objectives which are pressing and substantial in nature. Requiring restauranteurs to disclose infractions is rationally connected to the aims of promoting public health and protecting consumers
[15] The minimal impairment test is met. The Disclosure Program only discloses those infractions which are either an immediate health hazard or which present a risk of quickly developing into a health hazard if left uncorrected. The reinspection within a short time emphasizes the immediacy of the problem. Restaurants that do not pass the inspection are reinspected within one to two days. If the problems are corrected, a pass notice is issued. The only claim regarding any deleterious effects of the program is that pertaining to the alleged economic impact of the program. The Divisional Court rejected this claim as unsupported by the evidence. We have not been persuaded that the Divisional Court committed a palpable and overriding error in finding as it did on this point.
[16] We see no merit in the s. 7 argument and are in substantial agreement with the reasons of the Divisional Court dismissing that claim. In any event, it was not pursued in oral argument before us.
Conclusion
[17] Accordingly, the appeal is dismissed. Counsel agreed that the costs of this appeal should be $15,000 all inclusive irrespective of the outcome. Therefore, costs of the appeal are to the city and are fixed in the amount of $15,000 inclusive of disbursements and GST.
RELEASED: October 7, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“M. J. Moldaver J.A.”
“Robert j. Sharpe J.A.”