SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-13-2875-00
DATE: 2013-10-09
RE: Consumer’s Choice Home Improvement Corp. v. Her Majesty the Queen in Right of Ontario
BEFORE: Lemon, J
COUNSEL:
Mark Klaiman, for the Applicant
Alvin H. Torbin and Tom Schreiter, for the Defendant
HEARD: August 23, 2013
E N D O R S E M E N T
[1] The applicant, Consumer’s Choice Home Improvements Corp., seeks a declaration that the Director, pursuant to the Consumer Protection Act, has posted on the Government of Ontario website, information in relation to the applicant in excess of the period prescribed by Ontario Regulation 17/05.
[2] The issue to be determined is the length of time that the Director may post the fact of the applicant’s charge and conviction under the Consumer Protection Act on the provincial website.
BACKGROUND
[3] The facts are not in dispute. Consumer’s Choice carries on business as a home renovator, primarily offering the sale of windows and doors since in or about May 1990.
[4] On April 9, 2009, Consumer’s Choice was charged with various offences under the Consumer Protection Act. When the charges were laid, the Director posted the fact that Consumer’s Choice had been charged with those offences on the Government of Ontario website. The information remained posted on the website for a period of 27 months; from April 9, 2009, to July 9, 2011. Consumer’s Choice does not object to those steps.
[5] The charges went to trial over a number of days from March 2, 2011 to April 3, 2012. On October 5, 2012, Consumer’s Choice was found guilty of the charges. On December 6, 2012, Consumer’s Choice was fined a total of $10,000.
[6] On December 6, 2012, the Director posted on the website the fact that Consumer’s Choice had been convicted. That posting remains on the website to date.
LEGAL PARAMETERS
[7] Much of the law surrounding this issue is also not in dispute.
[8] Under Ontario Regulation 17/05, s. 86 provides that for the maintenance of the public record, the Director shall make information available from time to time by posting it on the Government of Ontario website and the Director shall ensure that the material remains available to the public for a period of at least 21 months and not more than 27 months.[^1]
[9] Section 88 of Ontario Regulation 17/05 sets out the information that is to be placed on the website as follows:
For the purpose of paragraph 4 of subsection 103 (2) of the Act, the following information is prescribed in respect of each person who is currently charged with a charge that has been laid, . . .under section 116 of the Act or who has been found guilty of such a charge [Emphasis added]:
The name of the person against whom the charge was laid, as known to the Ministry.
Any business names used by the person, as known to the Ministry.
The person’s business address, business telephone number, business fax number and business e-mail address, if known to the Ministry.
With respect to each charge laid against the person,
(i) The Act under which the charge was laid and a description of the charge.
(ii) The date on which the charge was laid, and
(iii) If the person is found guilty of the charge, a description of the disposition of the charge, including any sentence that was imposed and any order to pay compensation or make restitution that was made.
[10] So the question is, does “or” in s. 88 mean “or” or does it mean “and”?
POSITIONS OF THE PARTIES
[11] The applicant submits that the Director has already published the fact that Consumer’s Choice was charged for 27 months. The Regulation does not permit the Director to post the fact of the charges being laid for a period of 27 months and, for a further 27 months, post the fact that Consumer’s Choice has been convicted. The section provides that the Director may post the fact that a person who is currently charged with an offence or has been found guilty of such charge. Had the legislature intended that the Director was entitled to post both the fact of the charges being laid and the conviction, this section would have read “and” and not “or”. It is the position of the applicant that the Director has a choice; post the fact that a person has been charged or the person has been convicted of offences but not both. The applicant submits that the proper interpretation of the time period is that, in the circumstances of a long prosecution, the public can be advised of the proceedings for the first 21 months and then advised for six months after conviction.
[12] It is therefore submitted that having posted the fact that the charges were laid for a period of 27 months, the Director cannot now post the fact that the same individual has been found guilty.
[13] In response, the respondent submits that the legislative use of the word “or” is presumed to be the “inclusive or” unless it is clear from the context that it is meant to be exclusive. Applied to the statutory language at issue here, the sentence structure permits the Ministry to publish information relating to charges for up to 27 months, publish information relating to a finding of guilt for up to 27 months, or both.
ANALYSIS
[14] I agree with the interpretation given by the Ministry for the following reasons.
[15] In Seidel v. TELUS Communications Inc. 2011 SCC 15, [2011] 1 SCR 531 at para 37, the Supreme Court of Canada has instructed that consumer protection legislation, “should be interpreted generously and in favour of consumers”. See also Wright v. United Parcel Service Canada Ltd, 2011 ONSC 5044.
[16] Section 102(1) of the Act declares that the Minister may “disseminate information for the purpose of educating and advising Consumers”. An interpretation of the legislation that restricts that power would be contrary to the legislative intent. The interpretation given by the applicant would leave consumers with gaps in the available information. Either the conviction would be unavailable (as in this case) or restricted (for a shorter time after conviction).
[17] In R. v. Szczerba 2002 ABQB 660, 5 Alta.L.R. (4th) 385 Rooke J. said,:
[28] “Or”, which is always disjunctive, is presumed to be inclusive unless it is clear from the context in which it is used that it is meant to be exclusive . . . .,
In Sullivan on the Construction of Statutes, Sullivan Ruth. 5th ed. Markham, Ont; LexisNexis Canada Inc., 2008, the author states at 88-89:
“Or” is always disjunctive in the sense that it always indicates that the things listed before and after the “or” are alternatives. However, “or” is ambiguous in that it may be inclusive or exclusive. In the case of the exclusive “or,” the alternatives are mutually exclusive: (a) or (b), but not both; (a) or (b) or (c), but only one of them to the exclusion of the others. In the case of the inclusive “or,” the alternatives may be cumulated: (a) or (b) or both; (a) or (b) or (c), or any two, or all three.
[T]he inclusive “or” expresses the idea of “and/or.”...
In legislation, “or’s” are presumed to be inclusive, but the presumption is rebutted where it is clear from the context that the listed alternatives are meant to be mutually exclusive.
[18] Applying those principles, the “or” in s. 88 must be inclusive. That is, the alternatives are cumulative, giving the Director the power, in this case, to post the charge for 27 months and the conviction for a further 21 to 27 months. Accordingly, the application is dismissed.
[19] The parties agreed that regardless of the result, I should make no order as to costs.
Lemon, J
DATE: October 9, 2013
COURT FILE NO.: CV-13-2875-00
DATE: 2013-10-09
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Consumer’s Choice Home Improvement Corp. v. Her Majesty the Queen in Right of Ontario
BEFORE: Lemon J.
COUNSEL:
Mark Klaiman, for the Applicant
Alvin H. Torbin and Tom Schreiter, for the Defendant
ENDORSEMENT
Lemon, J
DATE: October 9, 2013
[^1]: Interestingly, neither counsel was aware of any reason for the odd choice of 21 or 27 months.