CITATION: Registrar, Funeral, Burial and Cremation Services Act, 2002 v. 1868653 Ontario Inc., 2019 ONSC 6091
DIVISIONAL COURT FILE NO.: 321/19
DATE: 20191022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Favreau JJ.
BETWEEN:
REGISTRAR, FUNERAL, BURIAL AND CREMATION SERVICES ACT, 2002
Appellant
– and –
1868653 ONTARIO INC. O/A NEWCASTLE FUNERAL HOME LTD.
Respondent
Bernard C. LeBlanc and Anastasia-Maria Hountalas, for the Appellant
Nicholas C. Tibollo and Yasamin Ahmadi, for the Respondent
HEARD at Toronto: September 17, 2019
Swinton J.
Overview
[1] The Registrar, Funeral, Burial and Cremation Services Act, 2002 (the “Registrar”) appeals a decision of the Licence Appeals Tribunal (the “Tribunal”) dated May 23, 2019 that set aside the Registrar’s Proposal to Revoke and Order to Immediately Suspend the Crematorium Operator Licence of the respondent, 1868653 Ontario Inc. o/a Newcastle Funeral Home Ltd.
[2] The Registrar argues that the Tribunal erred in failing to find that there were reasonable grounds to believe that the respondent’s operations created a risk to public health and safety, and that the Tribunal unreasonably failed to impose conditions on the respondent’s licence.
[3] For the reasons that follow, I would dismiss the appeal because the Tribunal reached a reasonable decision when it rejected the Proposal to Revoke.
Background
[4] This case concerns a “cremation” process known as alkaline hydrolysis (“AH”). It involves placing human remains in a pressurized vessel with highly caustic chemicals such as potassium hydroxide or sodium hydroxide. The vessel is heated to the point where parts of the body are liquefied, leaving bones. The process is computerized so as to involve minimal operator involvement.
[5] When the process is completed, the liquid effluent is drained and neutralized before it is disposed of in the wastewater system. The bones are dried and pulverized and returned to the family.
[6] AH machines operate either at a low temperature, which is slightly below the temperature for boiling water, or at a high temperature (above boiling, with pressurization). High temperature processes take less time than low temperature processes. The respondent owns a low temperature AH machine.
[7] The AH process is regulated by the Bereavement Authority of Ontario (“BAO”). In order to operate an AH machine, an applicant must apply for a licence. Such an application is treated as an application for a crematorium licence.
[8] While AH has been used for many years to dispose of animal and medical waste, it is a relatively new process for disposal of human remains. Other than the respondent’s licence, there was only one other licenced AH operator in Ontario at the time of the Tribunal hearing. That operator used a high temperature AH machine. However, low temperature AH machines are in use in Saskatchewan and Quebec and a large number of American states.
[9] In February 2017, a representative of the BAO attended a conference in Las Vegas and heard a talk given by a funeral director, Dean Fisher, who is also a part owner of a company that sells high temperature AH machines. Mr. Fisher spoke of the benefits of the high temperature AH process and the risks of the low temperature process. On returning to Ontario, the representative sought information about the low temperature AH process from Bio-Response, a manufacturer of AH machines.
[10] Meanwhile, Trevor Charbonneau, a licensed Funeral Director, made an application for a crematorium licence on behalf of the respondent on September 5, 2017. At the time, he was not asked whether he operated a low temperature or high temperature AH process, although information he provided during the application process revealed that the respondent’s AH machine was low temperature. BAO granted the licence on November 16, 2017. Prior to obtaining the licence, the respondent had obtained a wastewater discharge permit from the wastewater authority, as well as zoning approval.
[11] On February 6, 2018, certain officials of the BAO became aware that the respondent was operating a low temperature AH machine. They then sought further information on the AH process. This included a request to Public Health Ontario (“PHO”) in July to carry out a literature review on the AH process. The PHO report was received in August 2018.
[12] In June 2018, BAO directed inspectors to carry out unannounced inspections of AH licensees. On June 12, 2018, the respondent’s facility was inspected while an AH process was in progress. The inspection revealed several causes for concern, including filthy conditions, the unsafe storage of chemicals, and disrespectful treatment of human remains.
[13] On June 22, 2018, the Registrar issued an immediate Suspension Order and a Notice of Proposal to Revoke the respondent’s licence. The respondent appealed to the Tribunal, which conducted a hearing de novo over the course of 13 days and ultimately rejected the Registrar’s Proposal.
The Tribunal’s Decision
[14] The Tribunal rejected the Registrar’s allegation that the respondent had violated the Funeral, Burial and Cremation Services, 2002, S.O. 2002, c. 33 (the “Act”) and O. Reg. 30/11 (the “Regulation”) with respect to false or misleading advertising. It also rejected the allegation that the licensee was not acting in accordance with the law and with integrity and honesty. This allegation was based on alleged non-disclosure of the low temperature AH process being used. The Tribunal found that there had been disclosure to BAO prior to the licence decision.
[15] The Tribunal did find that the respondent had violated s. 7(1) of the Act and the Regulation, which requires that all cremations be carried out in a decent and orderly manner, and that quiet and good order be maintained at all times. This was because of the condition of the facility at the time of the inspection and the use of deficient metal identifier tags.
[16] Most significantly, for the purposes of this appeal, the Tribunal rejected the allegation in the Proposal that the licence be revoked pursuant to s. 14(1)(d)(iii) of the Act – that is, because the Registrar has reasonable grounds to believe that the operation of the business creates a risk to public health, safety or decency. The Registrar was particularly concerned that the low temperature AH process may not destroy prions (transmissible spongiform encephalopathies), which could be released into the wastewater system.
[17] The Tribunal framed its task with respect to this issue as follows (at para. 82):
Thus, the Tribunal needs to consider whether or not NCFH’s low temperature AH process effectively destroys prions before the effluent from the machine is released into the wastewater, what risks prions in the wastewater might pose to public health and safety, and the risk that the NCFH AH process, relatively small as it is, poses to public health and safety.
[18] The Tribunal considered the evidence presented by both parties and concluded that there was no evidence that prions are not destroyed by low temperature AH, and insufficient evidence to determine that there was a risk to human health from the respondent’s operations, even if prions were not destroyed by the low temperature process.
[19] Finally, the Tribunal rejected the Registrar’s argument that the respondent’s licence should be revoked because of the violations of the Act and Regulation that had been established. The Tribunal found that the deficiencies had been rectified. Moreover, the suspension of 11 months that the respondent had experienced while the Suspension Order was in effect would have a deterrent effect, tending to reduce the risk of future non-compliance.
The Appeal
[20] An appeal lies from a decision of the Tribunal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. The appeal may raise both questions of fact and law (Niagara Funeral Alternatives Inc. v. Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966 (Div. Ct.) at para. 22).
[21] Both parties agree that the standard of review is reasonableness.
Issues on Appeal
[22] The Registrar takes issue with the Tribunal’s conclusion respecting s. 14(1)(d)(iii) of the Act and the failure to impose conditions on the respondent’s licence. He raises four issues:
Did the Tribunal err by applying a higher standard of proof than that required by s. 14(1)(d)(iii) of the Act?
Did the Tribunal incorrectly apply the precautionary principle?
Did the Tribunal fail to consider minimum safety standards regarding heat or temperature for the low temperature AH process?
Did the Tribunal fail to consider imposing conditions on the respondent’s licence on a go forward basis?
Issue 1: Did the Tribunal err by applying a higher standard of proof than that required by s. 14(1)(d)(iii) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2002-c-33/latest/so-2002-c-33.html)?
[23] Section 14(1)(d)(iii) of the Act states:
An applicant is entitled to a licence or a renewal of the licence unless,
(d) in the case of an applicant for a licence to operate a cemetery, crematorium, funeral establishment, casket or marker retailing business, transfer service or other bereavement activity for which a licence is required under the regulations, or a renewal of such a licence,
(iii) the registrar has reasonable grounds to believe that the operation of the business by the applicant creates a risk to public health, safety or decency; …..
[24] The Registrar argues that the Tribunal erred because it applied a balance of probabilities standard when it should have asked whether the Registrar had reasonable grounds for belief that there was a risk to public health and safety. In his view, there are reasonable grounds to believe that the low temperature AH process is not safe for the public. Because the process has not been proven to be safe, unlike the high temperature AH process, he submits that it is reasonable to believe there is a risk to the public. In particular, as I stated above, the Registrar is concerned about the risk of prion release into wastewater, because prions are polypeptide chains that can interact with the central nervous system and cause neurodegenerative diseases.
[25] I disagree with the submission that the Tribunal applied the wrong test. The Tribunal correctly held that the onus was on the Registrar to establish that he had reasonable grounds for belief that there was a risk to public health and safety from the operation of the respondent’s business. The Tribunal set out the appropriate standard at paragraph 144 of its Reasons:
As noted above, the Court of Appeal for Ontario in Famous Flesh Gordon’s [2013 ONCA 157], in relation to liquor licencing, stated that reasonable grounds for belief are to be established at a standard below a balance of probabilities. That standard still requires that the belief be founded on “more than mere suspicion” and “an objective basis”, “based on compelling and credible information” (see paragraph 18 of that case). These represent reasonable standards for a test to be applied in allegations posed under s. 14(1)(d)(iii) of the FBCSA.
[26] The Registrar argues that the Tribunal subsequently erred in applying the standard, given what was said in para. 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 as to the likelihood of non-prion contaminated effluent being discharged into the wastewater system, by NFCH, and if so discharged, the likelihood of harm. (emphasis added)
[27] The Registrar submits that the emphasized words demonstrate that the Tribunal was applying a balance of probabilities standard, rather than a “reasonable grounds for belief” standard – that is, it was requiring the Registrar to prove that low temperature AH is unsafe on a balance of probabilities.
[28] I disagree. What the Tribunal is saying, consistently with the test set out in Famous Flesh Gordon’s, is that there must be an evidentiary basis to show that the low temperature AH process creates a risk for public health and safety. In assessing the reasonableness of the Registrar’s belief, the Tribunal reasonably stated that it must assess the possibility of the risk occurring. The language of probability highlighted in the sentence above is, in my view, the language of mathematics and science, not of a legal standard of proof for the determination of facts. The definition of “probability” in mathematics, according to the Oxford Dictionary (on line version) is “the extent to which an event is likely to occur, measured by the ratio of the favourable cases to the whole number of cases possible.”
[29] All that the Tribunal is saying is that there must be an assessment of the probability or likelihood that a risk will occur – for example, one percent, ten percent or twenty-five percent. It is not saying that the Registrar must prove that it is more likely than not that a certain harm will occur.
[30] This is demonstrated by subsequent passages of the reasons where the Tribunal discussed the lack of evidence about the prevalence of prion-related infection in humans. For example, at para. 150, the Tribunal stated,
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.
[31] The Tribunal also observed that a source cited in the bibliography of the PHO report stated that the most common form of prion disease in humans, sporadic Creutzfeldt-Jacobs Disease, “has a worldwide death rate of about one case per million people each year” (at para. 151). The Tribunal ultimately concluded that the evidence showed the risk of contracting prion-related illness appears to be very low (at para. 153). It also found that the “likelihood of a person whose body contains transmissible prions dying and being one of NCFH’s clients is slim” (at para. 154).
[32] These passages and others show that the Tribunal was properly applying the test to determine whether the Registrar had reasonable grounds to believe that the respondent’s operations posed a risk to public health and safety. It was not applying a balance of probabilities test. Rather, it was considering the evidence to determine whether there was an objective basis for the Registrar’s belief there was a risk. Therefore, I would not give effect to this ground of appeal.
Issue 2: Did the Tribunal incorrectly apply the precautionary principle?
[33] The precautionary principle comes from international environmental law and has been used as an interpretive aid and a policy consideration in Canadian environmental regulation. The Supreme Court of Canada has held that this principle can be considered when interpreting domestic law, because Canada is presumed to respect its international obligations when drafting and applying its statutes. As articulated by the Supreme Court of Canada in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40 at para. 31:
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.
[34] There is little assistance from the Registrar as to the content of the precautionary principle and its application in a case such as this one. The respondent relies on a decision of the British Columbia Court of Appeal, Tsawwassen Residents Against Higher Voltage Overhead Lines Society v. British Columbia (Utilities Commission), 2007 BCCA 211. The Court described the precautionary principle at para. 23, “in the presence of a threat of (non-negligible) environmental harm accompanied by scientific uncertainty, regulatory action should nevertheless be taken to prevent or remedy the hazard concerned.” The British Columbia Utilities Commission had held that the principle did not come into play because the evidence did not support the claim that electromagnetic fields created by power lines were a health hazard (at para. 36). The Court of Appeal dismissed an appeal from the Commission’s decision.
[35] In the present case, the Tribunal held that the precautionary principle is a useful interpretive aid (at para. 143). In its view, “A precautionary approach is triggered where the reasonable grounds for belief demonstrate some risk or threat of potential harm or conflicting opinions as to potential harm” (at para. 145).
[36] However, the Registrar argues that the Tribunal misapplied the precautionary principle. The Registrar relies heavily on the PHO report, which was reviewed by Dr. Ray Copes, Chief, Environmental and Occupational Health at PHO. Dr. Copes also testified before the Tribunal.
[37] The report was a literature review, not original research. Two key findings were:
• High-temperature alkaline hydrolysis is recognized as an acceptable method for disinfection and disposal of human remains. More research on low-temperature alkaline hydrolysis is required to confirm its effectiveness on human tissue.
• Effluents from high temperature alkaline hydrolysis are unlikely to contain viable infectious agents as long as the process is conducted in accordance with the manufacturer’s instructions for use (MIFU). (emphasis added)
[38] The Report noted that the World Health Organization (WHO) and the Center for Disease Control (CDC) had concluded that high temperature AH is effective to disinfect animal tissues (including the inactivation of TSEs) prior to disposal. It also discussed a study by Bio-Response, a manufacturer of AH machines, that concluded TSEs were eradicated after the low temperature process. However, there were no peer-reviewed studies on the effectiveness of the low temperature AH process.
[39] In a section headed “Data Gaps and Limitations”, the Report stated,
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 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.
[40] The Registrar also relies on a statement made by Dr. Copes, “[w]e were unable to identify any credible [evidence], in the eyes of the public health community organization, that explicitly said low-temperature alkaline hydrolysis is equivalent or is a satisfactory method.” The Registrar submits that this statement triggers the precautionary principle, and the Tribunal should have upheld the Proposal because there is no evidence that low temperature AH is safe.
[41] Again, I disagree with the submission that the Tribunal erred in failing to apply the precautionary principle. The onus was on the Registrar to demonstrate reasonable grounds to believe that the low temperature AH process created a risk to public health and safety. The onus was not on the respondent to prove that the process is safe.
[42] The Tribunal carefully examined all the evidence before it and determined that the Registrar had not established a risk of harm from the low temperature AH process, nor a risk of harm from the respondent’s operations. Therefore, the precautionary principle was not triggered.
[43] The Tribunal engaged in a careful and thorough examination of the evidence before it, including Dr. Copes’ report and testimony. It also had evidence from Dr. Hamid Salsali and Dr. Charles Denys. The latter had conducted a series of experiments with a low-temperature machine like the one owned by the respondent. Both Dr. Salsali and Dr. Denys concluded that low temperature AH destroys prions. 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” (at para. 148). Deference is owed by this Court to the Tribunal’s findings of fact.
[44] The Registrar takes issue with the Tribunal’s statement in the previous paragraph, arguing that Dr. Copes’ evidence demonstrates that the low temperature process is unsafe. However, Dr. Copes did not explicitly state that there were dangers from the low temperature AH process. He concluded that there were no studies to show that low temperature AH did destroy prions. The Tribunal described his evidence as follows (at para. 146):
The sum total of the Registrar’s evidence is that high temperature AH is effective at destroying prions and while there is no evidence to indicate low temperature AH does not destroy prions, there is insufficient evidence to conclusively say it does.
[45] Significantly, the Tribunal then stated (at para. 147):
NCFH put forward Dr. Denys, who, through conducting a scientific trial, concluded that the low temperature AH machine used by NCFH did destroy prions. Dr. Denys’ evidence, although not without some limitations, was consistent with the results of another sponsored study, which similarly validated low temperature AH as effective in prion destruction. Two scientists reviewed Dr. Denys’ study and found it acceptable in methodology and outcome with respect to prion destruction. In addition, Dr. Copes testified that he has no reason to believe low temperature AH would not be successful in destroying prions, but he cannot conclusively say this based on a lack of evidence.
[46] From its review of all the evidence, the Tribunal concluded that “there is no evidence that low temperature AH, as carried out by NCFH, does not destroy prions” (at para. 148). The Tribunal properly observed that there must be some evidentiary basis to show the risk that the respondent’s operations pose to public health and safety (at para. 149).
[47] The Tribunal then went on to consider the evidence of risk with respect to the respondent’s particular operations. It noted the lack of evidence from the Registrar, other than the literature review, respecting the prevalence of prion-related disease in humans. However, based on the evidence of Dr. Salsali and the PHO report, the Tribunal concluded that the risk of anyone contracting prion-related illness was very low. As well, the Tribunal considered the limited number of operations that the respondent could carry out each year (approximately 330), stating, as referred to above, that “[t]he likelihood of a person whose body contains transmissible prions dying and being one of NCFH’s clients is slim” (at para. 154).
[48] That led to the Tribunal’s conclusion (at para. 155):
As a result, 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.
[49] I see no error in the application of the precautionary principle here, given the evidence before the Tribunal. It is not the task of this Court to reweigh the evidence, although that is, in effect, what the Registrar asks us to do. The Tribunal considered all the evidence, not just that of Dr. Copes, in reaching its decision that the Registrar had not met his onus, to show, on the basis of objective evidence, that there was a reasonable ground to believe that the respondent’s process and operations posed a risk to public health and safety. This conclusion is reasonable, given the evidence before the Tribunal and the wording of the Act.
Issue 3: Should the Board have considered the lack of minimum standards for the low temperature AH process?
[50] The Registrar argues that the Tribunal unreasonably failed to consider what should be the acceptable minimum safety standards regarding the temperature or duration of the low temperature AH process. Seemingly, the Registrar believes that the Tribunal should have set such standards as a condition of the licence.
[51] The respondent points out that this issue was not raised before the Tribunal, and therefore, it is an improper ground of appeal. I agree with the respondent.
[52] However, in any event, according to the Registrar’s factum (at para. 83), the BAO itself is in the process of determining whether the process is safe, as well as issues of the appropriate temperature, minimum processing type, proper concentration of chemical compounds and other issues. I see no basis for finding the Tribunal’s decision unreasonable because it did not consider whether to impose minimum standards, given the lack of guidance provided to it on this issue and the lack of submissions by the Registrar.
Issue 4: Did the Tribunal fail to address public health and occupational health and safety concerns identified during the inspection?
[53] There is no dispute that the respondent’s facility was not safe nor operated in an ethically accepted manner at the time of the inspection in June 2018. The Registrar argues that the Tribunal’s decision was unreasonable because the Tribunal failed to impose conditions on the respondent’s licence. In particular, he takes issue with the Tribunal’s conclusion that there was no evidence that the issues were ongoing, given the fact that the respondent’s licence had been suspended since June 2018.
[54] At the hearing, the Registrar had sought revocation of the respondent’s licence, rather than the imposition of conditions on the licence. The Tribunal acknowledged that the Registrar had established a breach of s. 17(1) of the Act and s. 186(1) of the Regulation. However, the respondent had taken steps to comply with the legislation and Regulation. It had immediately replaced the metal tags that had been found to be deficient. It had also retained Dr. Salsali as a safety consultant and implemented all his recommendations. Dr. Salsali testified that his concerns had been addressed, and the facility showed a marked improvement.
[55] The Tribunal rejected the Registrar’s concern that the condition of the premises might decline in the future, saying that this was speculative. In addition, the Tribunal noted that
… to the extent the public interest warrants a remedy for NCFH’s violation of the Act, either in order to deter future behaviour or protect the public from the consequences of a substandard operation, NCFH has already served a suspension of 11 months. In all the circumstances, no further remedial action is required. (at para. 173).
[56] This was a reasonable remedial response, carefully and logically explained. Therefore, I would not give effect to this ground of appeal.
Conclusion
[57] For these reasons, the appeal is dismissed. Accordingly, the stay order imposed by Sachs J. is no longer in effect. Costs to the respondent are fixed at $25,000, an amount agreed upon by the parties.
Swinton J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Favreau J.
Released: October 22, 2019
CITATION: Registrar, Funeral, Burial and Cremation Services Act, 2002 v. 1868653 Ontario Inc., 2019 ONSC 6091
DIVISIONAL COURT FILE NO.: 321/19
DATE: 20191022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Favreau JJ.
BETWEEN:
REGISTRAR, FUNERAL, BURIAL AND CREMATION SERVICES ACT, 2002
Appellant
– and –
1868653 ONTARIO INC. O/A NEWCASTLE FUNERAL HOME LTD.
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: October 22, 2019