Court of Appeal for Ontario

CITATION: Ontario (Funeral, Burial and Cremation Services Act, 2002, Registrar) v. 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.) 2020 ONCA 771

DATE: 20201203

DOCKET: C67943

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Registrar, Funeral, Burial, and Cremation Services Act, 2002

Appellant

and

1868653 Ontario Inc. o/a Newcastle Funeral Home Ltd.

Respondent

Counsel:

Bernard C. LeBlanc and Anastasia-Maria Hountalas, for the appellant

Nicholas C. Tibollo and Frances Tibollo, for the respondent

Heard and released orally: November 26, 2020 by video conference

On appeal from the judgment of Justices Katherine E. Swinton, Nancy L. Backhouse and Lise G. Favreau of the Superior Court of Justice, Divisional Court, dated October 22, 2019 with reasons reported at 2019 ONSC 6091.

REASONS FOR DECISION

[1] The appeal is dismissed, substantially for the reasons of the Divisional Court.

[2] The Licence Appeal Tribunal found that the Registrar had not met the test in s. 14(1)(d)(iii) of the Funeral, Burial, and Cremation Services Act, 2002.

[3] We do not accept the appellant’s submission that the report of Public Health Ontario and the evidence of Dr. Copes constituted reasonable grounds for belief that there was a risk to public health and safety. While Public Health Ontario did not recommend the respondent’s method, it did so on the basis that further research was required before it could do so.

[4] The Tribunal had other evidence before it, as summarized in para. 43 of the Divisional Court’s reasons. The Divisional Court concluded:

After considering all the evidence, the Tribunal concluded that “there is no evidence that low temperature AH, as carried out by NCFH, does not destroy prions”.

[5] As the Divisional Court observed, deference is owed to the Tribunal’s findings of fact. On this record, the evidence did not discharge the statutory onus on the Registrar. As the Divisional Court found, the onus was on the Registrar to establish reasonable grounds to believe there was a risk to the public health and safety from the respondent’s operation. The onus was not on the respondent to prove that the operation was safe.

[6] Having regard to the absence of evidence that the respondent’s operation was a risk to public health and safety, and having regard to the statutory standard applicable to the Registrar’s responsibilities, we agree with the Divisional Court that the Tribunal did not err in finding that the precautionary principle had no application.

[7] We also agree with the Divisional Court’s decision that the Tribunal did not err in failing to impose conditions on the respondent’s business. The issue was not raised before the Tribunal, and the Divisional Court’s decision in this regard was not unreasonable.

[8] The appeal is dismissed with costs to the respondent in the amount of $30,000, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“Paul Rouleau J.A.” “S. Coroza J.A.”