COURT OF APPEAL FOR ONTARIO
CITATION: Toronto Sun Wah Trading Inc. v. Canada (Canadian Food Inspection Agency), 2014 ONCA 803
DATE: 20141117
DOCKET: C58708
Cronk, Gillese and Rouleau JJ.A.
BETWEEN
Toronto Sun Wah Trading Inc.
Plaintiff (Appellant)
and
Canadian Food Inspection Agency, City of Toronto, City of Kingston and Jerry Zalewski
Defendants (Respondent)
Newton Wong and V. Ross Morrison for the appellant
Kristen Muszynski and M. McCaw, for the respondent
Heard: November 10, 2014
On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated March 18, 2014.
By the Court:
[1] This is an appeal from a judgment dated March 18, 2014, which granted a motion for summary judgment and dismissed the claim of Toronto Sun Wah Trading Inc. (the “appellant”) against Jerry Zalewski (the “respondent”). For the reasons that follow, the appeal is dismissed.
BACKGROUND IN BRIEF
[2] The appellant is a bean sprout producer. Its sprouts were linked to an outbreak of salmonella in the Kingston area in 2005.
[3] The respondent was a public health inspector at the relevant time. He was directed, by his superiors, to investigate the salmonella outbreak.
[4] The appellant was identified as a supplier of bean sprouts linked to the salmonella outbreak. Ultimately, the appellant recalled its sprouts and disposed of over 3,700 pounds of them.
[5] The appellant then brought a claim for damages against the respondent and others. The essence of its claim against the respondent was that he had been negligent in the way in which he carried out his role, as a public health inspector, in the salmonella investigation, and that he had defamed the appellant by making false or misleading statements to the public regarding the source of the salmonella outbreak.
[6] The respondent brought a motion for summary judgment, claiming that as a public health inspector he was statutorily immune from liability. His claim to immunity was founded on s. 95(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (“HPPA”), which reads as follows:
- (1) No action or other proceeding for damages or otherwise shall be instituted against the Chief Medical Officer of Health or an Associate Chief Medical Officer of Health, a member of a board of health, a medical officer of health, an associate medical officer of health of a board of health, an acting medical officer of health of a board of health or a public health inspector or an employee of a board of health or of a municipality who is working under the direction of a medical officer of health for any act done in good faith in the execution or the intended execution of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power. [Emphasis added.]
THE DECISION BELOW
[7] To raise a genuine issue requiring a trial on the issue of the respondent’s liability, the appellant had to provide some evidence which, if believed, could constitute bad faith. The motion judge found that there was no such evidence.
[8] Before the motion judge, the appellant relied on Finney v. Barreau (Québec), 2004 SCC 36, [2004] 2 S.C.R. 17, for the proposition that bad faith does not always require intentional harm and that serious carelessness or recklessness can constitute a lack of good faith.
[9] The motion judge acknowledged that Finney appears to expand the definition of bad faith, but stated that it was important that Finney be understood within its specific context, both legally and factually. The issue in Finney was whether the Barreau, through delay and a failure to act to restrain a particular lawyer from engaging in the practice of law, had failed in its fundamental purpose of protecting the public. The Supreme Court found that the Barreau’s virtually complete absence of diligence meant that its conduct was not up to the standards imposed by its fundamental mandate.
[10] The motion judge noted that the situation in Finney was very different from the present case in which the respondent was alleged to have acted negligently while pursuing his mandate to protect the public.
[11] The appellant also relied on Sparks (Litigation Guardian of) v. Ontario, 2010 ONSC 4234, a case involving a provision in the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, similar to s. 95(1) of the HPPA. In Sparks, the defendant brought a Rule 21 motion to strike the plaintiff’s claim as disclosing no reasonable cause of action. The motion was dismissed on the basis that sufficient facts had been pleaded to meet the expanded definition of bad faith articulated in Finney.
[12] The motion judge did not find Sparks to be of assistance in resolving this case because Sparks involved a Rule 21 motion, which requires the court to accept as true the facts alleged in the pleading unless they are patently ridiculous or based on assumptions or speculative conclusions. In the present case, the issue was not the sufficiency of the pleading, but rather whether there was a genuine issue for trial concerning the respondent’s entitlement to the statutory immunity under s. 95(1) of the HPPA.
[13] The motion judge found, even assuming that the expanded definition of bad faith applied, the appellant had not produced any evidence which, if believed, could constitute recklessness to the point of abuse of power or the breakdown of the orderly use of authority. The appellant’s evidence focused exclusively on specific incidents associated with the Phnom Penh restaurant and ignored the broader context of the investigation. The evidence was clear and unchallenged that the respondent’s presentations and reports implicating the appellant were made at the direction of his superiors.
THE ISSUE
[14] The main issue raised on appeal is whether the motion judge erred in finding that there was no genuine issue requiring a trial on the question of whether the respondent had acted in bad faith.
ANALYSIS
[15] In our view, the appeal should be dismissed.
[16] The motion judge found that the appellant had provided no evidence which, if believed, could constitute bad faith and displace the immunity conferred by s. 95(1) of the HPPA. He made this finding based both on the traditional definition of bad faith and on the expanded meaning, argued for by the appellant, which includes recklessness or gross negligence. We see no error in the motion judge’s application of the governing legal principles to his factual findings and his conclusion that there was no genuine issue requiring a trial in respect of the respondent.
[17] In oral argument, counsel for the appellant argued that many of the documents provided by the respondent were inaccurate or, in effect, fraudulent. He could point to no evidence on the record to substantiate these serious allegations. It is not sufficient, on appeal, for counsel to simply raise possible alternative interpretations of the documentary record that had not been put to the witnesses or pursued below.
DISPOSITION
[18] Accordingly, the appeal is dismissed with costs to the respondent, fixed at $14,745, including disbursements and all applicable taxes.
Released: November 17, 2014 (“E.A.C.”)
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
“Paul Rouleau J.A.”