Ontario Court of Justice

Date: 2024 03 14 Court File No.: 4862 999 23 23200405 00

BETWEEN:

HIS MAJESTY THE KING (CITY OF TORONTO)

— AND —

1692038 ONTARIO LTD. (DINO’S NO FRILLS)

Before: Justice of the Peace Jennifer Veenboer

Heard on: January 16 & 17, 2024 Reasons for Judgment released on: March 14, 2024

Counsel: M. Pulfer, for the Prosecution S. Aird, for the Defendant (represented by Dino Savo)

JUSTICE OF THE PEACE JENNIFER VEENBOER:

[1] 1692038 Ontario Ltd., located at 1811 Avenue Road in the City of Toronto, is charged with one offence under the City of Toronto Municipal Code Chapter 545, Licencing, Article 1, section 545-8.4, clause B, subclause 3.

[2] Specifically, 1692038 Ontario Ltd., a grocery store which is classified as a food premises pursuant to the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 (HPPA), is charged with refusing to permit Paige Bavlnka and her service animal, a dog named Odin, to remain in the premise on February 25, 2023, at approximately 2:30PM.

[3] Ms. Pulfer is the prosecutor for the City of Toronto in this matter and Mr. Aird is counsel for the defendant, which is represented by Dino Savo, owner of 1692038 Ontario Ltd., known as Dino’s No Frills.

[4] After the Court confirmed it was satisfied it had jurisdiction and that the matter was complete and proper, Dino Savo was arraigned on behalf of 1692038 Ontario Ltd., and he entered a plea of not guilty.

[5] The defendant in this matter is innocent until proven guilty. This is a strict liability offense where the prosecution must prove the offence was committed beyond a reasonable doubt. And, if the prosecution proves the act beyond a reasonable doubt, then the defendant can raise a defence such as due diligence or mistaken set of facts, which if true on a balance of probabilities would render the act an accident.

[6] The prosecution presented three witnesses, including:

1. Sue-Ann Bavlnka, the complainant in this matter and Paige Bavlnka’s mother. She was present on the date, time and location in question. She is the prosecution’s first witness who provided sworn testimony to the Court;
2. Paige Bavlnka is the prosecution’s second witness who testified under oath. Paige Bavlnka was asked to leave Dino’s No Frills with her dog, Odin, on the date and time in question; and
3. City of Toronto Bylaw Enforcement Officer Gary Borges (Officer Borges), Badge#6035, was the third and final witness who testified under oath. Officer Borges investigated the matter and laid the charge before the Court.

[7] The defence also presented three witnesses, including:

1. Dino Savo, the owner of Dino’s No Frills. He is the first witness who testified for the defence under oath. He was not present on the date, time and location in question, and thus, did not witness the alleged offence;
2. Kumar Thuraisingam is the second witness who testified under oath for the defence. He was present on the date, time and location in question, and had asked Paige Bavlnka to leave the premises with her dog, Odin; and
3. Diana Palermo is the third and final witness who testified for the defence. She is employed by Dino’s No Frills and was working as a cashier on the date, time and location in question.

[8] Following arraignment, the Court excluded all witnesses except for Ms. Pulfer’s first witness, Sue-Ann Bavlnka, pursuant to section 52(2) (c) of the Provincial Offences Act R.S.O. 1990, chapter P. 33 as amended, and the trial began with the submission of an Agreed Statement of Facts, marked as Exhibit 1 on consent.

[9] Ms. Pulfer read the Agreed Statement of Facts into the record. The Court was satisfied that these facts were not in dispute, and they were considered for the purpose of today’s decision. [1]

Materials Entered as Evidence

[10] The Court also received several documents from the prosecution, which were entered into evidence on consent of defence counsel, Mr. Aird, and include:

• Exhibit 2 - Certified copy of the City of Toronto Municipal Code Chapter 545
• Exhibit 3 - Copy of Will Say – Sue-Ann Bavlnka
• Exhibit 5 - Copy of Paige Bavlnka’s medical prescription for a personal support animal
• Exhibit 6 - Copy of Will Say – Paige Bavlnka
• Exhibit 7 - Copy of Retail Food Safety Operating Procedure

[11] There was also a video submitted by the defence during cross-examination of the prosecution’s first witness, Sue-Ann Bavlnka. The Court initially entered the video into evidence on consent of the prosecution, and it was marked as Exhibit 4.

[12] However, the prosecution later objected to the video being entered into evidence. The objection was specific to the accuracy of the video, with the prosecution submitting that the video was a copy of the original in-store surveillance footage of the alleged offence and that it did not meet the best evidence rule. This was the first time the Court was made aware the video submitted was a copy.

[13] After receiving submissions from both parties and case law from Ms. Pulfer, the Court ruled the video would be excluded.

[14] As a consequence of excluding the video as evidence, the Court also ruled that it would disregard any viva voce evidence received specific to the video that was tendered during defence’s cross-examination of the prosecution’s witnesses and as well as any viva voce evidence specifically related to the video which was received through Ms. Pulfer’s re-examination of the prosecution’s witnesses.

[15] Fulsome reasons for the rulings are noted on the trial record.

Additional Facts Not in Dispute

[16] In addition to the Agreed Statement of Facts entered as Exhibit 1, additional facts not in dispute were identified during trial. These include:

1. Paige Bavlnka has autism and anxiety. Her doctor prescribed a personal support dog for Paige on June 9, 2022, per Exhibit 5.
2. Paige Bavlnka has a dog named Odin, which is her personal support animal.
3. February 25, 2023, was a Saturday and at the time of the alleged offence, Dino’s No Frills was busy.
4. On this date, Kumar Thuraisingam was employed at Dino’s No Frills as the store’s assistant manager. He was at the check-out area (the area where the alleged offence occurred) addressing a customer service matter. After he addressed the matter, another customer approached him with concerns about a dog in the store - the dog being Odin.
5. Odin was in a stroller, and he was not wearing a service animal visual identifier such as the vest or harness on the date, time and location of the alleged offence.

Statutes Considered

[17] The Court is assisted by the definition of “Service Animal” under subsection 80.45(4)(a) and (b) of Ontario Regulation (O. Reg.) 191/11: Integrated Accessibility Standards of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (AODA), as referenced in the City of Toronto Municipal Code, Chapter 545, Licencing Article 1, section 545-1 Definitions, as it pertains to the City of Toronto Municipal Code, Chapter 545, Licencing Article 1, section 545-8.4, clause B, subclause 3, as follows:

O. Reg. 191/11 of the AODA:

80.45(4) For the purposes of this Part, an animal is a service animal for a person with a disability if,

(a) the animal can be readily identified as one that is being used by the person for reasons relating to the person’s disability, as a result of visual indicators such as the vest or harness worn by the animal; or

(b) the person provides documentation from one of the following regulated health professionals confirming that the person requires the animal for reasons relating to the disability. [2]

[18] The Court is also assisted by Section 14, subsection (1) and subsection (2) sub-clause (1.) of Ontario Regulation (O. Reg.) 493/17: Food Premises, under the HPPA, which states:

Live birds or animals

14. (1) Every room where food is prepared, processed, packaged, served, transported, manufactured, handled, sold, offered for sale or displayed shall be kept free from live birds or animals.

(2) Subsection (1) does not apply to any of the following:

1. Service animals described in subsection 80.45 (4) of Ontario Regulation 191/11 (Integrated Accessibility Standards) made under the Accessibility for Ontarians with Disabilities Act, 2005 that are in an area of the food premise where food is served, sold or offered for sale.

Issues Before the Court

[19] The issues before this Court are not whether Odin was a service animal and whether Paige Bavlnka had a disability on the date, time and location of the alleged offence. Rather, given Odin was not wearing a service animal visual identifier – such as the vest or harness – on the date, time and location of the alleged offence, the issues this Court must decide are:

1. If documentation in accordance with subsection 85.45(4)(b) of O. Reg. 191/11 of the AODA, confirming Paige Bavlnka required a service animal for reasons relating to her disability on the date, time and location in question, was provided.

And, if provided,

2. Was Paige Bavlnka and Odin removed from Dino’s No Frills by reason only of the presence of Odin on the date, time and location in question.

Testimony Considered

[20] The sworn testimony from Officer Borges provided the Court with the background of the investigation leading up to the charge and information before the Court and the summons issued to the defendant, Dino Savo. The Court determined the matter was proper and there is jurisdiction to proceed with the trial. Officer Borges was not present and did not witness the alleged offence on the date, time and location in question.

[21] Dino Savo was not present and did not witness the alleged offence on the date, time and location in question. His testimony was focused on the steps he took after he became aware of the incident, about the store’s corporate training on service animals, and his store’s practice when it comes to customers with service animals. His testimony is not relevant to the specific issues the Court must decide.

[22] With respect to Diana Palermo’s sworn testimony, she testified she was working on the date, time and location in question as a cashier, one cash / lane over, behind where the alleged offence occurred. Diana Palermo provided the following testimony during examination-in-chief:

• She wasn’t too far and could hear everything, she was right behind them.
• Kumar went up to them and asked if they had any documentation saying that their animal was a service dog.
• They said they couldn’t get access to any proof.
• One of them took the dog and left the store, and one stayed to pay and pack the groceries and left the store.

[23] During cross-examination, when the prosecutor asked what was specifically said, Diana Palermo replied that she couldn’t tell Ms. Pulfer what was said word for word. And, despite the prosecution’s efforts, Diana Palermo would not / could not clarify whom she meant by “them” and “they” in her testimony. Therefore, the Court cannot determine if “them/they” was used in reference to Paige Bavlnka, or if “them/they” was used in reference to both Paige and Sue-Ann Bavlnka, or if “them/they” was used in reference to Sue-Ann Bavlnka.

[24] Furthermore, on cross-examination, Diana Palermo testified that the interaction lasted five (5) minutes, then testified maybe two (2) minutes.

[25] The Court has concerns with Diana Palermo’s testimony overall. The alleged conversation that Diana Palermo testified to over hearing is considered hearsay and as such, may only be considered for narrative purposes and not for the truth of its content.

[26] However, Diana Palermo first testified she wasn’t too far away and could hear everything, she was right behind them, and when cross-examined by the prosecution, she couldn’t really tell word for word what was said. The Court cannot accept Diana Palermo testimony even for narrative purposes given the inconsistencies.

[27] Furthermore, the Court questions the reliability of Diana Palermo’s testimony given her physical location from where the alleged offence occurred, and what she was doing at the time. Diana Palermo testified she was working a cash register one lane over. The Court already heard undisputed testimony that the store was busy. The Court questions how it would be possible for Diana Palermo to observe a five (5) minute interaction – or even a two (2) minute interaction – and overhear a conversation taking place at another checkout line while she was performing her duties as a cashier on a busy Saturday afternoon?

[28] The Court finds Ms. Palermo’s testimony unreliable and given the inconsistencies her testimony was not considered by the Court in making its decision.

[29] With respect to Paige Bavlnka’s sworn testimony, she testified during examination-in-chief that while at check out, she was approached by a man who told her that she wasn’t allowed to have her dog in the store with her.

[30] In response to this man, she told him that Odin was her emotional support animal and that he is allowed to be with her. She testified she told him that she had proof on her phone from her doctor, but he wasn’t interested in seeing it and told her to leave. When asked what he said, Paige Bavlnka said, he said that he wasn’t interested in seeing it.

[31] During cross-examination Paige Bavlnka testified she was pointing to her phone in her right hand, and he waived his hand like no, he didn’t want to see it. When further asked during cross-examination what the man said, Paige Bavlnka testified that she can’t remember and has mostly forgotten because she’s trying to move on from it.

[32] Paige Bavlnka testified her mom then gave her the keys to go to the car with Odin and she left the store.

[33] During re-examination Ms. Pulfer asked Paige Bavlnka if she showed the prescription to the employee. Paige Bavlnka testified that yes, she remembers showing him the prescription on her phone.

[34] This Court has concerns about the credibility and reliability of Paige Bavlnka’s testimony. While the Court acknowledges that Paige Bavlnka has autism and anxiety, and that testifying in a court can be scary, stressful and difficult for anyone, the Court is obligated to assess the credibility and reliability of her testimony.

[35] Paige Bavlnka’s testimony in and of itself is inconsistent. Her testimony cannot be both that she tried to show proof that Odin was her service animal on the date, time and location in question and that the employee said he didn’t want to see it; and then testify that she showed him the proof on her phone. Equally, her testimony cannot be that he said he didn’t want to see it and told her to leave, and at the same time she can’t remember what he said because she is trying to move on.

[36] Paige Bavlnka’s testimony is also inconsistent with her mother’s, Sue-Ann Bavlnka, who testified Paige only showed her phone, not the documentation.

[37] Given these inconsistencies and the unreliability of her memory, the Court has determined Paige Bavlnka’s testimony will not be considered for decision on the issues before the Court. This is not to suggest Paige Bavlnka was lying or making up her testimony. It simply means her testimony is inconsistent and her memory is unreliable based on her own testimony.

[38] When assessing credibility of the evidence presented, the primary focus is on the reliability of evidence, not the sincerity of the witness. A witness that appears sincere may, upon close examination of his or her evidence, have tendered unreliable evidence. The manner in which a witness testifies must never on its own form the basis of a credibility analysis (R. v. Minuskin (2003), 2003 ONCA 11604, 181 C.C.C. (3d) 542 (Ont. C.A.)).

[39] Moving to the evidence that the Court has considered to determine its decision on the issues, the evidence comes down to the sworn testimony of Sue-Ann Bavlnka and Kumar Thuraisingam.

[40] Sue-Ann Bavlnka offered the following testimony, which is consistent with her Will Say, entered as Exhibit 3:

• On February 25, 2023, she and Paige were doing errands and went to Dino’s No Frills to pick up a few items.
• February 25, 2023, was a Saturday and the store was busy.
• While at the checkout, she was at the cash getting ready to pay while Paige was bagging the groceries. Paige had Odin with her in a stroller.
• While bagging groceries, she observed Paige be approached by an employee [3] of Dino’s No Frills, and there was a conversation.
• She overheard Paige say she’s allowed to be here, she has it on her phone, and she can show him documentation. [4]
• Sue-Ann then heard the employee say, it is unacceptable, and he said he didn’t want to see it. She further testified she heard the employee say that she (Paige) needs to leave the store and that he doesn’t want to see anything [5].
• Sue-Ann said she observed Paige have her phone in her hand, that she held up the phone up, but Paige didn’t have the proof “pulled up”.
• At that moment, Sue-Ann said she intervened, and she told the employee Paige has the right to be here with the dog and that they have documentation on their phones. Sue-Ann then held up her phone.
• Sue-Ann told the Court the employee said, no, she needs leave the store, and that he didn’t want to see anything.
• Sue-Ann then gave Paige her car keys and told Paige to wait in the car with Odin. Sue-Ann told the Court she did not leave at that time as she had to finish with the groceries.

[41] When asked by defence on cross-examination if she asked to speak with a store manager, Sue-Ann said she did not ask and did not speak with a manager.

[42] The Court notes that Sue-Ann Bavlnka did not testify that she showed Kumar Thuraisingam or any other store employee documentation confirming that Paige required a service animal on the date, time and location the alleged offence occurred.

[43] Moving to the testimony of Kumar Thuraisingam, he provided the following testimony during examination-in-chief:

• On the date and time in question, he went to the front of the store for a customer service refund matter. After he addressed the refund matter, he was approached by another customer who told him there was a dog in the store.
• He then observed someone with a dog in a stroller [6] and approached them. He told her there should be no dogs in the store, and she told him it is a service dog.
• He then asked if she had proof, and she told him it was on her phone, but she couldn’t access it.

[44] The Court notes this testimony is consistent with Sue-Ann Bavlnka’s observation that Paige did not provide / show documentation that confirmed she required a service animal on the date, time and location in question.

[45] Kumar became aware that Paige was at the store with her mother, he told Paige that if she cannot access proof, she can stay outside with the dog until her mom finishes shopping. He also told Paige she needs to bring the paperwork the next time she comes to the store. He then left the area.

[46] Kumar told the Court that if proof was shown, he would have let Paige remain. But because she did not provide proof, nor did “the other lady,” [7] he had to address the complaint about the dog.

[47] Kumar told the Court that he never said he didn’t want to see proof the dog was a service animal, nor did he say he didn’t care.

[48] On cross-examination, Kumar provided the following testimony:

• The dog was in a stroller and was not identified as a service animal, and that’s why he asked for proof.
• He reiterated that Paige could not provide / could not access proof on her phone, and that he told her she had to go outside with the dog, and she could come back when she has the paperwork.
• When asked by Ms. Pulfer if he asked Paige if a family member could text a copy of the documentation, Kumar said, no.
• When asked by Ms. Pulfer if he asked Paige’s mother for proof, he said, no, he didn’t speak to her.
• When asked by Ms. Pulfer if he stands behind his choices that day, Kumar answered that he stands behind his choices made that day.

Analysis

[49] Given the conflicting testimony on whether proof was requested and shown, the Court must apply the Supreme Court of Canada decision in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) (W.(D)).

[50] When applying this formula, of the evidence the Court accepts,

1. If the Court believes the evidence of the defence, I must acquit; OR
2. If the Court does not believe the testimony of the defence, but is left in reasonable doubt by it, I must acquit; OR
3. Even if the Court is not left in doubt by the evidence presented by the defence, the Court must ask if it is convinced of the defendant’s guilt beyond a reasonable doubt. And if not convinced, I must acquit.

[51] As in R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24 at para. 23, quoted in R. v. Farooq, 2008 ONSC 27813 at para 24 (a):

There is nothing sacrosanct about the formula set out in W.(D.) …the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D.) : it will depend on the context.

[52] And, as in R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2 at para 8:

[The purpose of the framework in W.(D.) and its application is to ensure a justice’s]

…verdict should not be based on a choice between the accused’s and crown’s evidence, but on whether, based on the whole of the evidence [accepted by the Court, the trier of fact is] left with a reasonable doubt as to the accused’s guilt (R. v. Challice (1979), 1979 ONCA 2969, 45 C.C.C. (2d) 546 (Ont. C.A.), at pp. 556-57; R. v. MacKenzie, [1993] 1 S.C.R. 212, at pp. 219 and 240).

[53] In this matter, based on the whole of the evidence the Court accepts, I am left with reasonable doubt.

[54] Kumar’s testimony was consistent and unwavering under examination-in-chief and under cross-examination. He was specific in his testimony that the dog, Odin, was not readily identified as a service animal and he asked for proof/documentation. He testified these are the steps he took after receiving a complaint about a dog in the store – a food premises – from another customer.

[55] It is an undisputed fact that Odin was not readily identifiable as a service animal on the date, time and location in question. Kumar’s testimony was consistent internally on the vital issue that Paige could not/was not able to provide proof/documentation that she required a service animal on the date, time and location in question.

[56] Kumar’s testimony was also consistent with evidence lead by Sue-Ann Bavlnka on this vital issue – that she observed Paige hold up her phone, but that Paige did not have the proof “pulled up”.

[57] Sue-Ann also testified she held up her phone while at the cash register saying they have documentation. However, saying one has documentation and providing that documentation are two different things.

[58] While Sue-Ann testified that Kumar said he didn’t want to see it (the documentation), and Paige needs to leave the store, Kumar testified he had no interaction with Sue-Ann Bavlnka. On this conflicting testimony, the Court doesn’t know who to believe. But the fact remains, both Kumar and Sue-Ann testified Paige did not provide documentation, and further, Sue-Ann herself did not testify that she showed Kumar or any other store employee documentation confirming that Paige required a service animal on the date, time and location in question. Sue-Ann only testified to saying they have proof on their phones and holding up her phone.

Conclusion

[59] Dino’s No Frills is classified as a food premises pursuant to the HPPA. The premises is governed by O. Reg 493/17: Food Premises under the HPPA, which prohibits animals in a food premises with the exception of an animal that is described in subsection 80.45 (4) (a) and (b) of O. Reg 191/11 made under the AODA.

[60] In this type of offence and in the circumstances including the type of premises the alleged offence occurred, it is not merely a matter of someone saying their animal is a service animal or that they have proof. The law is clear: if the animal cannot be readily identified as one that is being used by a person for reasons relating to the person’s disability, via a vest or harness, the person must provide documentation from one on a prescribed list of regulated health professionals [8] confirming that the person requires the animal for reasons relating to their disability.

[61] It is not the responsibility of the defendant or representative of a defendant to ask if documentation can be sent by text or other means from a relative (not present), or to ask others attending the premises with the person and the animal for this documentation as suggested by Ms. Pulfer during cross-examination of Kumar. In the absence of an identifier, the legal obligation of providing documentation rests on the person with the service animal pursuant to subsection 80.45(4) (b) of O. Reg. 191/11 of the AODA, as referred to in the City of Toronto Municipal Code, Chapter 545, Licencing Article 1, section 545-1 Definitions for purposes of the City of Toronto Municipal Code, Chapter 545, Licencing Article 1, section 545-8.4, clause B subclause 3.

[62] As in R. v. J.H.S., 2008 SCC 30 at para. 13, in accordance with W.(D.), the burden never shifts from the prosecution having to prove every element of the offence beyond a reasonable doubt. It is of fundamental importance and in this case, the first vital issue the Court must decide is if documentation confirming Paige required a service animal was provided on the date, time and location in question beyond reasonable doubt. And on this very issue, I find the prosecution has not met its burden.

[63] Therefore, I do not need to turn my mind to the second issue and the charge before this Court is dismissed.

Released: March 14, 2024 Signed: Justice of the Peace J. Veenboer

Appendix 1

Court File No. 4862 999 23 23200405 00

ONTARIO COURT OF JUSTICE

BETWEEN:

THE CITY OF TORONTO

- and -

1692038 ONTARIO LTD

A. Agreed Statement of Facts

Offence

1. The offence before the court is a strict liability offence.

B. Overview of Property and Owner

2. 1692038 ONTARIO LTD (the “Corporation”) is a licensed Ontario Business Corporation operating as Dino’s No Frills (the “No Frills”) at 1811 Avenue Road, Toronto ON M5M 3Z3. Dino Savo is the owner of the Corporation.

3. Dino’s No Frills is a grocery store, which would be classified as a “Food Premises” pursuant to Health Protection and Promotion Act, R.S.O. 1990, c. H.7.

4. The Corporation is subject to the Toronto Municipal Code Chapter 545, including section 8.4B(3), as well as the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.

C. The Incident at No Frills

5. At approximately 2:30 p.m. on February 25, 2023, Sue-Ann Bavlnka, her daughter Paige Bavlnka, and Paige’s service dog Odin were at a check-out register at No Frills. Odin was in a stroller. Paige was approached by a No Frills employee, Kumar Thuraisingam. A conversation ensued, and Paige was asked to leave the store with Odin.

6. Sue-Ann Bavlnka called 311 on February 25, 2023, at approximately 3:39 p.m. to report the incident. Accordingly, By-Law Enforcement Officer Gary Borges was assigned to investigate the incident. On March 4, 2023, Officer Borges contacted the complainant. That same day, Officer Borges attended No Frills and spoke to the owner, Dino Savo. On March 6, 2023, Officer Borges collected witness statements from Sue-Ann (the complainant) and Paige Bavlnka.

7. On March 6, 2023, Officer Gary Borges served Mr. Savo in person with the summons pertaining to the offence before this court.

1 Madison Pulfer, Prosecutor, City of Toronto 2 Scott Aird, Counsel for the Defendant, 1692038 ONTARIO LTD

[1] The Agreed Statement of Facts is attached to this decision as Appendix 1.

[2] A list of regulated health professions is imbedded in the O. Reg. 191/11, subsection 80.45 (4) (b). Exhibit 5 received by the Court was prepared by a regulated health professional listed under this subsection of the regulation.

[3] The Court is satisfied an employee is Kumar Thuraisingam.

[4] The conversation Sue-Ann Bavlnka testified to over hearing is hearsay. As such, the Court considered this portion of Sue Ann Bavlnka’s testimony for narrative purposes only.

[5] The conversation Sue-Ann Bavlnka testified to over hearing is hearsay. As such, the Court considered this portion of Sue Ann Bavlnka’s testimony for narrative purposes only.

[6] The Court is satisfied someone with a dog in a stroller was Paige Bavlnka

[7] The Court inferred “other lady” to mean Sue-Ann Bavlnka

[8] List of regulated health professions is imbedded in the O. Reg. 191/11, subsection 80.45 (4) (b).