Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 06 01 COURT FILE No.: 1260 999 00 3391234F

BETWEEN:

THE REGIONAL MUNICIPALITY OF HALTON

— AND —

J. GIOVANNI PALUMBO

Before: Justice Scott Latimer Heard on: May 19, 2023 Reasons for Decision released on: June 1, 2023

Counsel: Brittany Maione, counsel for the Appellant Samantha Palmer, agent for the Appellant Owen Thompson, counsel for the Respondent

LATIMER J.:

[1] This appeal turns on whether the improper maintenance of potentially hazardous food is a strict or absolute liability offence.

[2] The respondent owns a restaurant in Georgetown. During a regulatory inspection on November 29, 2021, a malfunctioning refrigerator was found to contain food products not being kept at the appropriate storage temperature. The Inspector issued an infraction for violating the Health Protection and Promotion Act (“HPPA”); more specifically, Regulation 493/17 of that Act.

[3] The respondent was found not guilty following a short trial. In coming to his decision, the justice of the peace applied a strict liability standard and held that the restaurant had been duly diligent upon discovering the refrigerator malfunction. It is from this conclusion that the Region of Halton now appeals.

[4] I would categorize the issues raised on this appeal as follows:

(1) The availability of a due diligence defence; and

(2) The justice of the peace’s approach to that defence.

I. Strict or Absolute Liability?

[5] Section 27(1) of Regulation 493/17 reads:

Potentially hazardous food shall be distributed, maintained, stored, transported, displayed, sold and offered for sale only under conditions in which the internal temperature of the food is,

(a) 4 degrees Celsius, or lower; or

(b) 60 degrees Celsius, or higher.

[6] A violation of this provision is penalized by section 100(4) of the HPPA – “[a]ny person who contravenes a regulation is guilty of an offence”.

[7] Neither the Act nor the Regulation contain express liability-related language in s. 100(4). The appellant, however, takes the position that the Sault-Ste Marie guidelines reveal an absolute liability offence, which would eliminate the availability of a due diligence defence.

[8] Section 100(4) of the HPPA is a public welfare offence. There is a “strong presumption” that public welfare offences are assessed on a strict liability standard: R v Kanda 2008 ONCA 22, at para. 19. The Supreme Court of Canada, in R. v. Sault-Ste. Marie and related jurisprudence, have however identified factors for courts to consider in assessing whether that presumption is rebutted in an individual case. I will now turn to those identified factors.

(1) The overall regulatory pattern

[9] While this case relates to poorly refrigerated food, the scope of the Act is much broader. As stated in section 2, the purpose of the HPPA, “is to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario”.

[10] The broad scope of this mandate is demonstrated by a review of the related Regulations, which address various and sundry subject matters such as (1) the designation of diseases, (2) how municipal members of Health Boards are chosen, (3) the maintenance of public pools and spas and, (4) the regulation of food premises that serve the public. Pursuant to s. 100(4) of the Act, a violation of any of these Regulations constitutes an offence.

[11] As already mentioned, in isolation s. 100(4) provides no statutory guidance on this point. It simply states that any person who contravenes a regulation is guilty of an offence. A neighboring provision, however, does contain express language regarding the availability of a due diligence defence – s. 101(3). This provision, inapplicable in the present case, clarifies that, when a corporation is found guilty of an offence, corporate actors (such as directors, officers, employees or agents) may be found not guilty if they satisfy the court that they took “all reasonable care to prevent the commission of the offence”.

[12] The appellant submits that the absence of similar language in s. 100(4) permits an inference of Legislative Intent; that the Legislature expressly excluded “reasonable care” language from s.100(4) because it is intended to be an absolute liability offence. The juxtaposition of ss. 100(4) and s. 101(3), it is submitted, demonstrates the Legislature’s intention to differentiate liability standards in these two statutory circumstances.

[13] While this juxtaposition is relevant in this interpretive exercise, it is not determinative of the question of whether the Legislature intended s. 100(4) to be an absolute liability offence. Of course, had they so intended, they could have simply said so within s. 100(4), as has been done in other statutory contexts: e.g., s. 84.1(1) of the HTA; Kanda, paras. 24-25. Clarity in one context does not always resolve indistinctness in another. I conclude that the overall regulatory pattern does not assist the appellant in rebutting the presumption of strict liability.

(2) Subject matter

[14] The sheer breadth of the s. 100(4) offence provision – applying to a wide variety of health-related regulatory infractions – means that, if the appellant’s interpretation is correct, a violation of any HPPA Regulation would be an absolute liability offence. Such a general approach, to highly particularized circumstances, would almost certainly invite injustice. An example would be the hypothetical I suggested to counsel during submissions:

A restaurant owner closes at the end of an evening and ensures his refrigerators are working properly. He arrives the next morning to find that a power failure has occurred overnight and the internal temperature of the food in the refrigerator is between 4 and 60 degrees Celsius. Is he guilty of an offence at the exact moment he discovers the refrigerator failure?

[15] The Region of Halton submits that this hypothetical offender would be guilty of violating the Regulation, but any unfairness could be remedied by the imposition of a modest fine. Respectfully, I do not agree. Punishing this hypothetical restaurant owner before assessing what steps he took to address the situation overshoots the legislative purpose of the Regulation – to ensure unsafe foods are not served to the public – at the expense of individual freedom. A restaurant owner owes the public a duty of care. [2] The government penalizing him for events beyond his control, that he acted diligently to prevent and, upon discovery, address, invites injustice and is very likely constitutionally infirm.

[16] It cannot be disputed that protecting the public from spoiled food is a valid legislative objective. But the appellant has not established, on this record, that an absolute liability classification is necessary to properly further that objective. As the Court of Appeal said in Kanda:

… to regard strict liability as a serious diminution of enforcement capacity is a misconception. Strict liability is what its name implies – a serious commitment to enforcement of the law. In most cases, if a person commits the act proscribed by the law a conviction will follow because establishing the defence of due diligence or reasonable care will not be easy.

[17] Overall, the subject matter of s. 100(4) of the Act, including the sheer breadth of regulatory circumstances to which it applies, supports classifying the offence provision as strict liability.

(3) Penalty

[18] Section 101(1) reads:

Every person who is guilty of an offence under this Act is liable on conviction to a fine of not more than $5,000 for every day or part of a day on which the offence occurs or continues.

[19] The absence of incarceration as a potential penalty is consistent with an absolute liability offence: Kanda, paras. 33-34.

(4) Precision of language

[20] It is difficult to assign any precision to the s.100(4) offence provision. It is a general provision meant to apply to a wide variety of regulatory non-compliance. No textual clues are offered to resolve the absolute/strict liability debate. Given the placement of the burden on this interpretive exercise, this factor does not assist the appellant’s argument.

[21] Overall, I am not satisfied that the strong presumption in favor of strict liability is rebutted here. The language is general, and I am not satisfied that the legislative purpose requires a more onerous absolute liability approach. I am also concerned, as my earlier hypothetical and the prosecutor’s response demonstrates, that an absolute liability standard will capture innocent conduct disconnected from the legitimate statutory purpose of protecting the public from unsafe food products.

[22] For all these reasons, I am satisfied that the appropriate standard for this offence, in this context, is strict liability.

II. Was the strict liability standard properly applied?

[23] The justice of the peace’s Reasons – like this trial proceeding – were brief and to the point. He identified that the actus reus of the offence had been established, and then turned his mind to whether the restaurant staff had been duly diligent in responding to the refrigerator problem. He made the following factual findings:

(1) Mr. St. Croix, the manager and lone cook that day, checked the fridge multiple times that morning and, at 11:30 a.m., noticed the temperature rising in the sauté fridge.

(2) There is a process for discarding food products and, as the only person presently working in the kitchen, Mr. St. Croix was unable to complete that process at the time. He therefore “shut down the line” by placing a tray, thus ensuring that no spoiled food would be served.

[24] The justice concluded that these actions were reasonable and that Mr. St. Croix “did absolutely everything that he could”, in the circumstances. He was satisfied that a due diligence defence had been established. That conclusion is reasonable on this record.

[25] Finally, the appellant Region raises a concern with a particular statement included in the Reasons:

I’m satisfied, if there was any indication on the prosecution’s side that any of the food was served during the time that it was inoperable, I would be absolutely 100% satisfied that in fact a conviction should be registered.

[26] The appellant submits that an additional element is being added to the offence: proof that food had in fact been served. I do not read this sentence in the same manner. It immediately follows the finding that the cook “did absolutely everything that he could” to address the refrigerator failure. Read in context, it relates to the due diligence finding, as the justice is pointing out that the restaurant’s response to the problem sufficiently ensured that no spoiled food would be served to the public.

[27] Ultimately, I am satisfied that the justice of the peace applied the proper analytical approach to the offence and that his findings of fact were reasonable. His conclusion that the restaurant was duly diligent is deserving of deference on appeal: Ontario (Racing Commission) v Durham, 2016 ONSC 2490, at paras. 44-45.

III. Disposition

[28] The appeal is dismissed.

Released: June 1, 2023 Justice Scott Latimer

[1] R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299. [2] Heimler v Calvert Caterers Ltd. (1975), 4 OR (2d) 667 (Co. Ct.), at para. 42.