CITATION: Registrar, Funeral, Burial and Cremation Services Act, 2002 v. 1868653 Ontario Inc., 2019 ONSC 4298
DIVISIONAL COURT FILE NO.: 321/19
DATE: 2019/07/17
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Registrar, Funeral, Burial and Cremation Services Act, 2002 Appellant, Moving Party
AND:
1868653 Ontario Inc., o/a Newcastle Funeral home Ltd., Respondent/Responding Party
BEFORE: H. Sachs J.
COUNSEL: Bernard C. LeBlanc and Anastasia-Maria Hountals, for the Appellant/Moving Party
Nicholas C. Tibollo, for the Respondent/Responding Party
HEARD at Toronto: July 11, 2019
ENDORSEMENT
Overview
[1] This is a motion by the Appellant Registrar to stay the decision of the License Appeal Tribunal (the "Tribunal") that set aside the Registrar's Proposal to Revoke and Order to Immediately Suspend the Crematorium License of the Respondent, pending the final disposition of the Registrar's appeal of the Tribunal's order.
[2] This case concerns a relatively new "cremation" process, known as alkaline hydrolysis ("AH") whereby human remains are placed in a pressurized vessel with highly caustic chemicals and heated to the point where the body is liquified or dissolved, leaving bones that are then baked and pulverized. The liquid effluent is disposed of by draining it into the water waste system.
[3] There are two forms of AH – one is a high temperature method ("HTAH") and the other is a low temperature method ("LTAH"). The Respondent uses the LTAH method.
[4] On November 16, 2017 the Respondent was granted a license to operate an AH machine. On February 6, 2018 the licensing authority learned that the Respondent was operating a LTAH machine. This was a matter of concern because of the controversy surrounding whether the effluent produced by the LTAH method (as opposed to the HTAH method) was safe to release into the water system.
[5] On June 12, 2018 the Respondent's premises were inspected while an AH process was in progress. The inspection revealed several matters of concern, including the fact that the facility was unkempt and filthy. Dangerous caustic chemicals were improperly stored; human remains were being dried on what appeared to be warped and worn pizza pans; residue from human remains was observed on the bottom of the drying oven; a noticeable volume of uncollected human bone fragments was visible on a loading/unloading table; a steel bucket containing brown liquid appeared to be collecting excess human effluent and cleaning liquid; clothing and personal effects belonging to decedents were strewn throughout the garage alongside bags of caustic and/or corrosive chemicals; electrical cords were placed so as to cause a potential electrical hazard and there were insufficient washing facilities to avoid serious injury in the event of exposure to the caustic chemicals used during the AH process. The contents of the facility raised both safety concerns and concerns about the respect being paid to the treatment of the bodies of loved ones.
[6] On June 22, 2018, the Registrar issued an Immediate Suspension Order and Notice of Proposal to Revoke the Respondent's license.
[7] After issuing this order, the Registrar sought the help of the Ministry of Health and Long-Term Care (the "Ministry"). Through the Ministry the Registrar was connected to Public Health Ontario ("PHO"), an agency that was created to advise with respect to public health crises such as SARS and the Walkerton water crisis. At the beginning of July, PHO was asked to advise whether the AH process poses a risk to the staff handling the effluent and whether the process posed a risk to public health when the effluent is discharged into the water system.
[8] On August 9, 2018, Dr. Ray Copes, the Chief of Environmental and Occupational Health at PHO, prepared a report based on a thorough literature review of any studies that had been done on the health effects of AH effluent and its discharge into the wastewater system. That review confirmed that a number of respected public health organizations had found that high temperature AH was an effective and safe way of disposing of human tissue and destroying prions. Prions are folded proteins that can interact with the central nervous system and cause neurodegenerative disease. They are highly resistant to the methods used to kill other infectious organisms. Prions caused "mad cow" disease. As put by the Tribunal, prions "are a proxy for sterility – if a method can destroy prions, then that method can produce sterile, non-infectious product."
[9] With respect to low-temperature AH, Dr. Copes found that there was no independent peer-reviewed study that established that it destroyed prions. According to him, more research was required to confirm its effectiveness in disinfecting human tissues. As put by PHO:
The majority of studies and validation tests in the literature have been on the high-temperature alkaline hydrolysis process. A small number of studies have demonstrated successful decontamination of animal tissues using the low-temperature process, but we were not able to identify any studies conducted using human tissues. The WHO [World Health Organization] has listed high-temperature alkaline hydrolysis as an alternative method for disposal of human remains but does not provide comment on the low-temperature process. More research on low-temperature alkaline hydrolysis is required before its effectiveness at disinfecting human tissues can be confirmed.
The Tribunal's decision
[10] The Registrar took the position before the Tribunal that the Respondent's use of the LTAH process posed a risk to public health. The Respondent was releasing material into the water system after using a process where there was no reliable evidence that the process was safe.
[11] The Tribunal disagreed. In doing so it made the following findings, after a hearing that took place over 13 days and included evidence from a number of experts.
(a) "In sum, none of the expert evidence is determinative. Because of the novelty of using low temperature AH machines for disposition, or even high temperature machines for that matter, and the difficulty of studying AH as a method of human disposition, no studies were introduced showing the efficacy of either method in destroying pathogens, including prions, when used in the funerary context. All of the science uses animal models, under laboratory conditions, and proxy measures to determine whether effluent from the alkaline hydrolysis processes are sterile." (Tribunal's Reasons, para. 126).
(b) "The evidence before the Tribunal supports a finding that there is sufficient science demonstrating the efficacy of high temperature AH in destroying all pathogenic material, including bacteria, viruses and prions, thought this is not a finding that has any bearing on the issues in this appeal. With respect to low temperature AH, the Tribunal finds that there is ample evidence, of a similar quality to that of high temperature AH, to demonstrate that low temperature AH kills pathogenic organisms, including bacteria and viruses. There is also some evidence to suggest that low temperature AH breaks down polypeptides into fragments smaller that the smallest known prion, though this evidence has not been published in a peer-reviewed journal. Low temperature AH has not, however, been explicitly recommended by any recognized body (such as the CDC or WHO) as a method for disposing of human medical waste." (Tribunal's Reasons, para. 133).
(c) "The Tribunal also finds that there was no scientific evidence to suggest that low temperature AH does not yield sterile effluent, including with respect to prions." (Tribunal's Reasons, para. 134).
[12] The Registrar does not disagree with this summary of the evidence that the Tribunal heard (except with respect to the Tribunal's comment at para. 126 regarding the efficacy of HTAH at destroying prions. I note that the Tribunal makes a different statement on this point at para. 133) However, according to the Registrar, given the absence of evidence proving that the LTAH process is safe, and the potential devastating consequence to public health if it is not, precaution requires that it should not be permitted.
[13] In dealing with the Registrar's submissions the Tribunal recognized that there is a principle of international environmental law that has been incorporated into Canadian environmental law, known as the "precautionary principle". The basic tenet of this principle was adopted by the Supreme Court of Canada in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40 where at para. 31 the Court states:
Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
[14] The Tribunal examined whether the precautionary principle should be applied in this case. Its key findings on this issue are:
(a) The onus to demonstrate that the operation of the Respondent's business creates a risk to public health is on the Registrar and this requires the Registrar to make some assessment of the risk that LTAH poses. (Tribunal's Reasons, para. 135 and 136).
(b) "[148] The Tribunal finds that there is no evidence that low temperature AH, as carried out by NCFH, does not destroy prions."
(c) "[149] Further, it is not sufficient for the Registrar to believe that low temperature AH does not destroy prions. There must be some evidentiary basis for what risk the NCFH business poses to public health or safety, Risk involves probabilities, and though they need not be exact, the Tribunal would have expected some evidence indicating a risk of harm and some evidence of the likelihood of prion-contaminated effluent being discharged into the wastewater system, by NCFH, and if so discharged, the likelihood of harm." (emphasis added)
(d) "[150] In this case, however, not only was there no evidence beyond the literature review presented by the Registrar, the Registrar's case was not supported by evidence about the prevalence of prion-related infectious disease or prion infection in humans, the incidence rate of prion-related infections during a given period of time, the likelihood of coming into contact with prions through various sources, or the morbidity and mortality rates due to prion-related infectious disease when one comes into contact with prions."
[15] In the absence of evidence from the Registrar on this point (other than that "mad cow" disease, the most common form of prion- related disease in humans, has a worldwide death rate of about one case per million people each year), the Tribunal concluded that "[t]he risk of contracting prion-related illness, either from infectious or non-infectious sources, appears to be very low."(Tribunal's Reasons, para. 153).
[16] The Tribunal calculated that the Respondent would not perform more than 330 LTAH processes a year. Since there were about 100,000 deaths in Ontario in 2017"[t]he likelihood of a person whose body contains transmissible prions dying and being one of NCFH's clients is slim." (Tribunal's Reasons, para.154)
[17] In conclusion, the Tribunal found that "with no evidence to suggest that prions are not destroyed by low temperature AH, and insufficient evidence to determine what the risk might even be in such a situation, the Tribunal finds that the precautionary principle is not triggered." (Tribunal's Reasons, para. 155).
[18] With respect to the condition of the Respondent' premises at the time of the inspection that triggered the suspension, the Tribunal found that while there were deficiencies that violated the Act or its regulations, they had been rectified by the Respondent, and there was no evidence to suggest that they were ongoing or that the Respondent would "return to a deficient state when no longer subject to the scrutiny of litigation."
The Test for a Stay pending appeal
[19] The parties agree that the test on a motion to stay an order of a Tribunal pending appeal is the same as the test on an interlocutory injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994, 111 D.L.R.(4th) 385 (SCC) at paras 78-80, namely:
Is there a serious issue to be tried? Given the jurisdiction of the Divisional Court on an appeal from the Tribunal, this issue must be a serious issue of law.
Will the Registrar suffer irreparable harm if the stay is refused?
Does the balance of convenience favour the granting of a stay?
Analysis
Does the appeal raise a serious issue of law?
[20] The Registrar advances two interrelated issues of law on this appeal. First, it argues that the Tribunal erred in law in applying the test that the Registrar had to meet under the Act. That test required it to demonstrate that it "had reasonable grounds to believe that the operation of the business by the applicant creates a risk to public health, safety or decency." "Reasonable grounds to believe" is a lower standard than "balance of probabilities". At para. 149 of its decision the Tribunal finds that "risk involves probabilities". According to the Registrar, risk does not involve probabilities and by equating the two, the Tribunal was asking the Registrar to prove on a balance of probabilities that LTAH is harmful.
[21] The second error of law that the Registrar alleges is that the Tribunal erred in refusing to apply the precautionary principle to find that, where there is an absence of scientific consensus on whether an inherently dangerous activity is safe, the Registrar has reasonable grounds to believe that an applicant who is engaged in that activity poses a risk to public health and safety.
[22] In my view, these are serious questions of law and, thus, the first aspect of the test for a stay is satisfied.
Irreparable Harm
[23] As the Respondent has acknowledged, irreparable harm "refers to the nature of the harm, rather than its magnitude" (RJR MacDonald at para. 59). In this case, the nature of the harm being alleged is a risk to public health and safety in the form of the public water system being infected with a protein that could cause a potentially fatal neurodegenerative disease. The nature of this harm is irreparable.
Balance of Convenience
[24] This aspect of the test requires me to balance the harm being alleged by the Registrar with the harm that will be done to the Respondent if the stay is granted.
[25] The Respondent states that if the stay is granted it will suffer both financial losses and damage to its reputation. According to the Respondent, these harms are already substantial due to the 11month suspension it suffered prior to the Tribunal's decision. If a stay is granted it will need to borrow money to keep its business afloat.
[26] I accept that the Respondent will continue to suffer financial losses if the stay is not granted, but I note that operating its AH machine is only one aspect of its business. However, this harm must yield to the potential risk to the public's health and safety if a stay is not granted. Having said this, I do agree that every effort should be made to expedite the Respondent's appeal.
Conclusion
[27] For these reasons, I am granting the Registrar's motion for a stay of the Tribunal's order pending the disposition of the appeal. I order that the appeal be expedited and if the parties require assistance in this regard I may be contacted. The parties agreed that the successful party on the motion should be awarded $20,000 in costs, all inclusive. Therefore, I order the Respondent to pay the Registrar its costs, fixed in the amount of $20,000.00, all inclusive.
H. Sachs J.
Date: July 17, 2019