Ontario Superior Court of Justice Divisional Court

Court File No. 159/04 London

Date: 2006-01-04

Aston S.J., Greer and Swinton JJ.

Counsel:

Sara Blake, for applicant, Attorney General for Ontario.

James Easto, for respondent, Health Services Appeal and Review Board.

Paul J. Brett, for respondent, Medical Officer of Health for the Northwestern Health Unit.

B.M. Richardt, for respondents, Denise Rose Pelletier, Roderick Charles MacDonnell operating as Ted's Restaurant, Notte's Supermarket Ltd. operating as Patricia Inn Motel, Crystal Harbour Resort Ltd., 2819857 Manitoba Ltd. operating as Winston Hotel, 1254013 Ontario Inc. operating as Balmer Motor Hotel, and Hap's on the Harbourfront Inc.

The judgment of the court was delivered by

[1] Aston S.J.:—The Attorney General of Ontario applies for judicial review of a decision of the Health Services Appeal and Review Board (the "Board") dated February 17, 2004. The Board rescinded orders made by the Medical Officer of Health (and Public Health Inspectors acting under his authority and supervision) for the Northwestern Health Unit ("NWHU"). Those orders prohibited smoking or the holding of lighted tobacco in premises of the respondent businesses. They are small privately owned businesses in the hospitality industry; hotels, bars, restaurants, convenience stores, and the like.

[2] The Board concluded that the Medical Officer of Health ("MOH") went beyond the scope of his statutory authority under s. 13 of the Health Protection and Promotion Act, R.S.O 1990, c. H.7 ("HPPA"), in making those orders. The Attorney General seeks to have the Board's decision quashed and the issues remitted to the Board for reconsideration on the merits.

[3] This matter is not before this Court by right of appeal under s. 46 of the HPPA, which allows any party to the proceedings before the Board to appeal from its decision or order to the Divisional Court. The MOH for the NWHU has not appealed the decision of the Board. Rather, the Attorney General asserts a common law right to apply for judicial review of any decision made by a public body or made pursuant to a statutory power. Status to do so is not questioned.

[4] The issue in this application is whether the Board erred in deciding that the MOH and Public Health Inspectors did not have the authority under s. 13 of the HPPA to make the orders prohibiting smoking or the holding of lighted tobacco in the respondent businesses' premises. For the reasons which follow, we conclude that the Board was correct in its decision.

Factual and Statutory Background

[5] Part III of the HPPA deals with "community health protection".

[6] Section 10 of the HPPA requires a local medical officer of health to inspect or cause the inspection of the region served by the health unit for the purpose of preventing, eliminating and decreasing the effects of health hazards in the health unit. That duty to inspect includes, but is not limited to food premises and premises used or intended for use as a boarding house. "Health hazard" is defined broadly in s. 1 to mean

(a) a condition of a premises,

(b) a substance, thing, plant or animal other than man, or

(c) a solid, liquid, gas or combination of any of them,

that has or that is likely to have an adverse effect on the health of any person.

In addition, s. 12 specifically requires the local medical officer of health to keep himself informed in respect of matters related to occupational and environmental health.

[7] Section 13 is in issue in this application. It reads as follows:

13. (1) A medical officer of health or a public health inspector, in the circumstances mentioned in subsection (2), by a written order may require a person to take or to refrain from taking any action that is specified in the order in respect of a health hazard.

(2) A medical officer of health or a public health inspector may make an order under this section where he or she is of the opinion, upon reasonable and probable grounds,

(a) that a health hazard exists in the health unit served by him or her; and

(b) that the requirements specified in the order are necessary in order to decrease the effect of or to eliminate the health hazard.

(3) In an order under this section, a medical officer of health or a public health inspector may specify the time or times when or the period or periods of time within which the person to whom the order is directed must comply with the order.

(4) An order under this section may include, but is not limited to,

(a) requiring the vacating of premises;

(b) requiring the owner or occupier of premises to close the premises or a specific part of the premises;

(c) requiring the placarding of premises to give notice of an order requiring the closing of the premises;

(d) requiring the doing of work specified in the order in, on or about premises specified in the order;

(e) requiring the removal of anything that the order states is a health hazard from the premises or the environs of the premises specified in the order.

(f) requiring the cleaning or disinfecting, or both, of the premises or the thing specified in the order;

(g) requiring the destruction of the matter or thing specified in the order;

(h) prohibiting or regulating the manufacturing, processing, preparation, storage, handling, display, transportation, sale, offering for sale or distribution of any food or thing;

(i) prohibiting or regulating the use of any premises or thing.

(5) An order under this section may be directed to a person,

(a) who owns or is the occupier of any premises but where an order is directed to the occupier, the person making the order shall deliver or cause the delivery of a copy of the order to the owner of the premises;

(b) who owns or is in charge of any substance, thing, plant or animal or any solid, liquid, gas or combination of any of them; or

(c) who is engaged in or administers an enterprise or activity,

in the health unit served by the medical officer of health or the public health inspector.

(6) An order under this section is not effective unless the reasons for the order are set out in the order.

[8] During the 1990's, the MOH (Dr. Sarsfield), other Medical Officers of Health and concerned physicians from around the Province approached the provincial government, formally and informally, in efforts to persuade the government to ban smoking in all indoor public places.

[9] In 1989, the Smoking in the Workplace Act, R.S.O. 1990, c. S.13, had come into effect. It regulates smoking in all non-private workplaces but specifically exempts enclosed workplaces that are used primarily by the public, including bars and restaurants. It was followed in 1994 by passage of the Tobacco Control Act, 1994, S.O. 1994, S.O. 1994, c. 10, which prohibits smoking in specified public places, including hospitals, pharmacies, schools, banks and common areas of malls. It does not, however, prohibit smoking in bars and restaurants. In addition, s. 115 of the Municipal Act, 2001, S.O. 2001, c. 25, empowers municipalities to prohibit or regulate the smoking of tobacco in public places and workplaces and to define what constitutes a public place.

[10] Dr. Sarsfield was repeatedly informed that the authority to regulate smoking lies with municipalities under the Tobacco Control Act, 1994 and the Municipal Act, 2001. In its reasons, the Board observed that Dr. Sarsfield's "frustration with this response was obvious both in his testimony and in the exhibits that included correspondence between him and various government officials". Early in 2001, Dr. Sarsfield "gave up on the Province" and concentrated on lobbying municipal governments. On August 13, 2001, he issued a communiqué announcing a campaign which he called "Second-Hand Smoke Kills! Let's Clear the Air!" The communiqué expressed his concerns about second-hand smoke (environmental tobacco smoke or "ETS"). He issued further strongly worded communiqués on October 3 and November 26, 2001 and on January 4, 2002.

[11] In January 2002, Dr. Sarsfield issued a press release and sent a letter to 30,000 households in the NWHU urging residents to petition their municipal councils to enact a smoke-free by-law. In that letter he stated:

Governments can pass laws that would make public places smoke-free, and I think they have a moral and legal obligation to do so. However, the provincial and federal governments have given the responsibility for smoke-free bylaws to the local municipal governments. In this part of Northwestern Ontario, we have 19 municipalities. None of them have a bylaw to protect all of their citizens from this health hazard. In some cases the municipal councils don't believe that smoke-free public places and workplaces are a priority for the people who elected them. I am asking for your help to show them that they are mistaken.

He followed this up with a letter to mayors and municipal councillors in the health unit advising "I have had a hand in devising the postcard campaign as a way to allow you to put this potentially controversial issue on your table without being the group who introduced it." In February 2002, he sent a formal "Notice of Health Hazard" regarding environmental tobacco smoke to every municipality in the health unit, asking each council to pass a 100 percent smoke-free by-law. The notice requested each council to provide him with a written plan for the elimination of ETS in every workplace by May 31, 2002. In the following months, he continued to correspond and meet with municipal officials.

[12] Only three of nineteen Northern municipalities within the health unit responded by passing the by-laws Dr. Sarsfield refers to as the "gold standard", absolutely prohibiting any smoking in any workplace. Of the remaining 16 municipalities, some passed bylaws which limited, but did not absolutely prohibit, smoking in workplaces. This created a "patchwork" or "uneven playing field" for businesses. The MOH then decided that he would have to use the authority of his office to do what provincial and municipal governments refused to do – ban smoking in all enclosed public spaces in the entire health unit, including all bars, hotels and restaurants.

[13] On June 3, 2002, the MOH caused the NWHU to issue Notices to most businesses in the health unit, though not to any business in First Nations communities. These notices asked each business to complete a questionnaire stating the date when secondhand smoke or ETS would be eliminated from the business premises. It also warned that failure to comply would result in further action.

[14] On October 21, 2002, the MOH, in a press release, announced January 1, 2003 as the date by which all indoor public spaces in the health unit, including workplaces, must be 100% smoke-free. Those businesses that had not replied to the June 3 notices received a letter dated December 1, 2002 requiring the business to be "100 percent smoke-free on or before January 1, 2003". The letter warned that inspections would be conducted and that businesses found to be non-compliant with the requirement for 100 percent smoke-free workplaces might be formally ordered to comply by the Medical Officer of Health under the HPPA, and that the business might face prosecution under the Act.

[15] In January and February of 2003, the MOH did in fact issue warnings, then orders, against the respondent businesses and others. The businesses were each ordered to take the following actions immediately:

1. Ensure that no person smokes or holds lighted tobacco in the premises located at [business address]

2. Inform all persons in the premises that the smoking or holding of lighted tobacco is prohibited in the premises

3. Conspicuously post "No Smoking" signs at every entrance to the premises

4. Remove all ashtrays and like paraphernalia from the premises and prohibit their use in the premises.

[16] The orders each cited specific reasons and specifically referred to s. 13 of the HPPA for their authority. The orders included observations of an inspector of the health unit for the particular business site. The reasons in each and every case included the following assertions:

1. second-hand tobacco smoke is a known carcinogen

2. second-hand tobacco smoke has serious adverse effects on the health of all persons exposed to it

3. there is no safe level of exposure to second-hand smoke

[17] Each order also asserted:

I am of the opinion on reasonable and probable grounds that:

1. A health hazard exists in the Health Unit served by me; and

2. The requirements specified in the order are necessary in order to decrease or eliminate the health hazard

[18] The six respondent businesses appealed the orders to the Health Services Appeal and Review Board. It is common ground that the six businesses were chosen as representatives of 19 businesses affected by these orders, and that other businesses would have been subject to similar orders but for the review process initiated before the Board. Each respondent business is in a municipality but the MOH testified the NWHU would extend its ETS initiative to the unorganized territories in the NWHU as budget and human resources permitted. The Board heard evidence from "tobacco enforcement officers" employed by the health unit. In none of the inspections did the enforcement officers or inspectors take any measurement of air quality. They simply observed that there was smoking or lighted cigarettes or that the premises smelled of tobacco smoke. The orders in question are essentially identical except for the names, dates and addresses.

[19] Dr. Sarsfield himself sees these six orders as a "test case" and expressed the intention to continue inspecting other establishments and making further orders.

[20] The substantive issue for the Board was whether environmental tobacco smoke was present and constituted a health hazard in the premises of each of the respondent businesses. However, the Board never made a decision on the factual issue, deciding instead that the orders issued by Dr. Sarsfield were beyond the scope of his authority under s. 13 of the HPPA.

Is the Decision Moot?

[21] The respondent businesses argued that the application is essentially moot, because the provincial government has enacted the Smoke-Free Ontario Act, S.O. 2005, c. 18, which will come into force May 31, 2006, banning smoking in all enclosed workplaces and public places. That legislation will effectively supplant the orders of the MOH.

[22] In my view, the application is not moot. The legislation is not effective until some months from now and while, as a practical matter, a referral back to the Board might not determine the matter before that time, the issue before us is not moot. Furthermore, the issue now before us may properly be characterized as a "test case" on the issue of the authority of an MOH under s. 13 of the HPPA. The Attorney General of Ontario has taken the unusual step of bringing this application for judicial review when the parties themselves have not appealed. The applicant submits that the scope of the authority of the local MOH is a question of general importance.

Standard of Review

[23] It is now well recognized that the applicable standard of review is to be determined on a "functional and pragmatic approach" based on consideration of four factors: the existence or absence of a privative clause in the enabling statute of the administrative tribunal; the expertise of the tribunal relative to the court; the purpose of the legislation; and the nature of the problem.

[24] The enabling legislation in this case was enacted to amalgamate the administration of 14 statutes. As such, the Board develops a broad understanding of general health care policy. It is also granted wide remedial powers in overseeing Medical Officers of Health. Some of the Board's responsibilities engage policy-laden determinations, balancing competing interests. These factors suggest judicial deference to the Board's decision.

[25] However, there is no privative clause in the HPPA and there is an unfettered right of appeal. In this particular case, the Board's decision is limited to a question of statutory interpretation. Furthermore, in reaching its decision, the Board compared statutes external to its own jurisdiction as a central part of its reasoning. If the court's task was to review a finding by the Board that ETS in the six particular business establishments was, or was not, a "health hazard" as defined in the HPPA, those findings of mixed fact and law would demand greater deference from the court. However, the issue now before the court is a narrow question of statutory interpretation, and the factual underpinnings are not controversial.

[26] In these circumstances, the standard of review is correctness. The reasons need not be flawless or exhaustive but the ultimate conclusion must be correct.

Analysis and Conclusions

[27] Section 13 of the HPPA, on its face, gives broad authority to a non-elected official. The definition of a "health hazard" in s. 1 of the HPPA is also very broad.

[28] The MOH and NWHU took the position before the Board that the MOH has the power under s. 13 of the HPPA to decide when or if a health hazard exists and to ban any substance or activity causing a health hazard throughout the health unit (emphasis added). They submitted that this power is limited only by the requirement that the MOH arrive at his opinion of a health hazard genuinely and reasonably. Before this court, those respondents now support the Attorney General's submission that the Board should not have concerned itself with the authority of the MOH throughout the health unit but should have confined its analysis to the six specific sites, businesses and orders under appeal. This is rather disingenuous, given the stated intention of the MOH to continue his campaign of eliminating any patchwork and of ensuring that the entire NWHU be blanketed with orders. On their face, the six specific orders in question do not constitute a health-unit wide declaration or order requiring every business in the health unit to eliminate any and every source of second-hand smoke, but that is nevertheless the proper characterization of the issue in this case based on the evidence, including that of Dr. Sarsfield himself.

[29] In conceding that this case is a "test case" being watched closely by other health units in the Province, Dr. Sarsfield acknowledged as controversial the issue of whether the powers of an MOH under s. 13 of the HPPA are limited to acute situations or problems. The Board accepted the view of the Ministry of Health, the Provincial Medical Officer of Health and the Ministry of Labour, each of which had told the MOH that regulating or prohibiting smoking is the responsibility of a municipality under the authority of municipal by-laws and the Tobacco Control Act, 1994. The Board correctly assumed the issue goes beyond the site-specific orders it was reviewing.

[30] Delegation of legislative power is a routine practice in Canada. Nevertheless, not all delegates have the same degree of legislative authority. There is a distinction between the authority to make orders of general application and the authority to make case specific or site specific orders. Section 13 of the HPPA gives an MOH authority to make "an" order to "a" person. This language suggests that the MOH has been given the authority to make case specific orders rather than orders of general application. However, the MOH adopted a blanket policy that any level of ETS whatsoever constituted a health hazard and he applied that policy inflexibly to all businesses in the NWHU without regard to particular circumstances.

[31] The MOH's decision and his orders engage questions and issues of public policy, economic interests and the freedom to engage in an otherwise lawful activity. The MOH is not accountable in the same way elected officials are accountable. The fundamental issue of statutory interpretation in this case must take this into account.

[32] The orders in this particular case have the same practical effect as legislation, a regulation passed by Order-in-Council or a by-law. They are not temporary measures but rather indefinite, and presumably permanent, prohibitions on an otherwise lawful activity. The MOH is an office created by statute. The holder of the office has no inherent power but can only exercise the authority granted by the statute. The integrity of the statute is undermined if the MOH exercises discretion beyond the bounds of the statutory mandate. A Medical Officer of Health's jurisdiction cannot be unlimited or limited only by his own personal view of what constitutes an unacceptable health hazard in general. The statute must contemplate a role subordinate to elected municipal officials. The attempt by the MOH to make general prohibitions throughout the entire NWHU for all public places is excessive and an abuse of the order-making power he does have.

[33] The Board concluded that Dr. Sarsfield's concerns about ETS were genuine and deep but that his orders were too broad in their nature so that he exceeded his statutory authority in making them. The Board concluded "in short, the appeal board finds the context of the section, the statutory scheme and the intention of the legislature demand a limited scope for the MOH's authority under s. 13 and do not support the interpretation urged upon us by the MOH".

[34] That conclusion is correct.

[35] As to its reasons, the Board correctly identified the starting point for any issue of statutory interpretation:

Today, there is only one principle or approach, namely, the words of an act are to be read in their entire context and in their grammatical or ordinary sense harmoniously with the scheme of the act, the object of the act and the intention of parliament. (Barrie Public Utilities v. Canadian Cable Television Ass'n (2003), 2003 SCC 28, 225 D.L.R. (4th) 206 at 219 (S.C.C.) quoting Driedger)

[36] The Board acknowledged that the ordinary meaning of the words in s. 13 of the HPPA appears broad but properly examined those words in the context of the delegation of legislative power, the scheme of the HPPA and the broader legislative context.

[37] Although the Board considered the Smoking in the Workplace Act, the Tobacco Control Act, 1994 and the Municipal Act, 2001 in its inquiry into the intention of the legislature, it did so to provide a proper context for its analysis. The Board did not err in that regard. In its references to the Tobacco Control Act, 1994 and Municipal Act, 2001, the Board conducted an analysis in a manner approved by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex (2002), 2002 SCC 42, 212 D.L.R. (4th) 1 (S.C.C), at para. 27 – looking at the statute book as a whole to find consistency and coherence. It correctly and expressly rejected the "occupied field" theory, and the submission by counsel for the respondent businesses on that point. However, the Board properly considered these other statutes in the course of understanding the overall statutory scheme or framework – an essential aspect of the exercise of statutory interpretation.

[38] The Board's references to Hansard ought to be viewed in the same light – not as a consideration that would decide the issue, but as legitimate background information for a contextual analysis. The Board recognized the limited role of Hansard in assisting the tribunal. The reference to the statements of Health Minister Grossman in introducing the HPPA in the Legislature in 1982 merely served to confirm what the Board had already observed in its decision; namely, that a local Health Unit's role is intended to encourage or support action by others vested with the authority to act when it comes to generalized issues of occupational and environmental health.

[39] The Board, quite properly, looked at the words of s. 13 itself, observing that the illustrative list of actions that might be taken by an MOH are not exhaustive but, on the other hand, do not include anything remotely similar to the action taken by the MOH in this particular case, namely, instituting a Health Unit wide declaration that is not temporal in nature, but which absolutely and indefinitely prohibits an otherwise lawful activity.

[40] The application is therefore dismissed. The respondent businesses are entitled to costs, fixed at $18,000 inclusive of G.S.T and disbursements, payable by the applicant. The parties shall otherwise bear their own costs.

[41] Application dismissed.