ONTARIO
SUPERIOR COURT OF JUSTICE
ST. CATHARINES COURT FILE NO.: 55240/14
DATE: 2014-08-19
BETWEEN:
1251553 ONTARIO INC. o/a CANADIAN TIRE GAS BAR
Brian R. Simpson, for the Moving Party/Applicant in Motion
Moving Party/Applicant in Motion
- and -
THE MINISTER OF HEALTH AND LONG- TERM CARE
Dona Salmon and Meagan Williams, for the Responding Party/Respondents in Motion
Responding Party/Respondents in Motion
HEARD: July 29, 2014
The Honourable Mr. Justice H.S. Arrell
Introduction:
[1] The Applicant seeks a temporary stay of an order issued by the Respondent prohibiting it from selling tobacco products for a period of six months pending an appeal to Provincial Court and an application for judicial review to Divisional Court.
Facts:
[2] The Applicant is owned by Angela and Scott Taylor and it has been a franchisee operating a Canadian Tire Gas Bar since 1997. It sells tobacco products, among other things.
[3] On March 11, 2013, Scott Taylor was charged with selling cigarettes to a minor. He pled guilty and paid a fine on March 26, 2013.
[4] On March 25, 2013, Marilyn Hill, an employee of the Applicant, was charged with selling cigarettes to a minor. A notice of non-compliance was sent to the Applicant on May 21, 2013. Ms. Hill entered a plea of guilty and paid her fine on November 1, 2013.
[5] The Applicant, as a result of Ms. Hill’s charge, was charged under s. 3(1) of the Smoke Free Ontario Act on March 28, 2013 and was sent the notice of non-compliance on May 21, 2013. The Applicant entered a plea of guilty and paid the fine on June 14, 2013.
[6] All appeal periods for these three charges have long expired.
[7] The notice of non-compliance made it clear that two convictions in a five year period could lead to an automatic prohibition to sell tobacco products. It also gave a phone number that could be called if there were any questions. The Applicant had this notice long before Ms. Hill pled guilty to the second charge and prior to the corporation pleading guilty on June 14, 2013 to the charge of non-compliance.
[8] On June 23, 2014, the Applicant was served with a mandatory prohibition order under s. 16 of the Act prohibiting the sale of tobacco products for six months commencing June 30, 2014.
Issues:
[9] The Applicant argues for a temporary stay on the basis that there are issues of natural justice and fairness that it wishes to put before the Divisional Court on constitutional and common law grounds. The earliest the Divisional Court could hear the matter is February, 2015.
[10] The Applicant also wishes to appeal the convictions before the Ontario Provincial Court. The earliest the Ontario Court could hear the appeal is October 2014.
Analysis:
[11] The test for a stay of proceedings is on a balance of probabilities with the onus on the Applicant. The test is set out in three parts in RJR-MacDonald Inc. v. Canada (Attorney General):
(a) there is a serious issue to be tried;
(b) the Applicant will suffer irreparable harm;
(c) the balance of convenience favours the Applicant.
RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at p. 16
[12] The Applicant argues that there is a serious issue to be tried. It raises several areas of attack; the Minister improperly exercised discretionary power; the Act is flawed because there is no provision for any hearing or appeal of the prohibition order; the prohibition order amounts to a secondary sentencing regime; natural justice and procedural fairness are at issue; s. 7 of the Charter is in play; and the punishment is cruel and unusual contrary to s. 12 of the Charter.
[13] In my view the Applicant’s arguments that there is a serious issue to be tried fails.
[14] Section 16(2) of the Smoke Free Ontario Act makes it mandatory on the Minister to issue the probation order if there are two convictions under s. 3 of the Act. That is the case here. As a result there is no discretion on the Minister nor is there any decision being made by the Minister. As such, there can be no decision for the Divisional Court to review under a statutory power.
[15] The Ontario Court of Appeal in Paine v. University of Toronto (1982), 1981 1921 (ON CA), 34 O.R. (2d) 770 stated “…it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in the exercise of a ‘statutory power of decision’; and I think that must be a specific power or right to make the very decision in issue.” In the case at bar the Minister had no power to make the decision of prohibition to sell tobacco products for six months.
[16] The Court of Appeal in R. v. Clothier, 2011 ONCA 27, at para. 25, confirmed the statement of MacPherson J.A. in R. v. Seaway Gas & Fuel Ltd. (2000), 2000 2981 (ON CA), 47 O.R. (3d) 458 at para. 33:
“In my view, this reasoning is entirely applicable to the Ontario Tobacco Control Act and suggests that the provisions of the Act and regulations should be interpreted with a judicial eye firmly focused on the public health purposes of the legislation. One of the most important purposes of the legislation is to make sure minors are not able to buy cigarettes. The legislation should be strictly interpreted to help to achieve that purpose.”
[17] In 407 ETR Concession Company Limited v. Ontario (Registrar of Motor Vehicles), a case similar to the one at bar, the Divisional Court ruled under the 407 Act where the registrar “shall” refuse to validate the vehicle permit issued to the person who received the notice of failure to pay under the Act that the language was mandatory and it did not give the registrar any discretion and he had no authority to act as a monitor of the enforcement process. He could act only in an administrative role. I conclude the Minister has a similar duty in the case at bar.
[18] Likewise, the above cases make it clear that legislative schemes are not flawed because there is no provision for a hearing or appeal before the prohibition applies. The legislature has enacted such a mandatory scheme as a result of the sale of tobacco to minors upon two convictions. The Applicant has its right to a hearing when charged and the right to appeal. Upon convictions, however, the prohibitions are mandatory, as in the 407 Act, or license suspension for impaired driving, to give but two other similar examples.
[19] The Applicant argues s. 7 of the Charter is a serious issue to be tried. I disagree.
[20] The Supreme Court in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47, stated as follows:
“Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Thus, before it is even possible to address the issue of whether the Respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, at p. 401, as follows:
To trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles of fundamental justice.
Thus, if no interest in the respondent’s life, liberty or security of the person is implicated, the s. 7 analysis stops there. It is at the first stage in the s. 7 analysis that I have the greatest problem with the respondent’s s. 7 arguments.”
[21] The Supreme Court has held that s.7 of the Charter does not apply to a corporation where it stated:
“In order to put forward a s. 7 argument in a case of this kind where the officers of the corporation are not named as parties to the proceedings, the corporation would have to urge that its own life, liberty or security of the person was being deprived in a manner not in accordance with the principles of fundamental justice. In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter. First, we would have to conceive of a manner in which a corporation could be deprived of its "life, liberty or security of the person". We have already noted that it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition. The only remaining argument is that corporations are protected against deprivations of some sort of "economic liberty".
There are several reasons why we are of the view that this argument cannot succeed…”
Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] S.C.J. 36 at page 49
[22] The s. 7 argument also fails on the grounds that it does not apply to economic rights. Goudge J.A. for the court stated in A and L Investments Limited et al., 1997 3115 (ON CA), [1997] O.J. No. 4199, at para. 34:
“The s. 7 claim is that the effect of the 1991 Act on individual plaintiffs has been to deprive them of a source of livelihood, their occupation, and their savings. It is not alleged that the legislation has destroyed their right to work altogether. In my view, the jurisprudence that has developed under the Charter has made clear that economic rights as generally encompassed by the term "property" and the economic right to carry on a business, to earn a particular livelihood, or to engage in a particular professional activity all fall outside the s. 7 guarantee: see, for example, Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577; R. v. Miles of Music Ltd. 1989 255 (ON CA), (1989), 74 O.R. (2d) 518, 43 C.R.R. 294 (C.A.); Biscotti v. Ontario Securities Commission 1990 6608 (ON SC), (1990), 74 O.R. (2d) 119, 72 D.L.R. (4th) 385 (Div. Ct.), affirmed 1991 7216 (ON CA), (1991), 1 O.R. (3d) 409, 76 D.L.R. (4th) 762 (C.A.).
Hence, I would conclude that it is plain and obvious that the s. 7 claim discloses no reasonable cause of action. Like the s. 15 claim, it must therefore be struck.”
[23] The Applicant further argues that had it known the jeopardy it faced it would not have pleaded guilty and as such there was an onus on the prosecutor to notify the Applicant of the mandatory six month prohibition. I find this line of argument is without merit. The Applicant is a sophisticated merchant selling thousands of dollars of tobacco products per year in a very regulated industry. It is expected to know those regulations. It elected to proceed without legal advice. It was given notice of the possible consequences and still elected to not seek legal advice. It was given a number to call if it had any questions and it elected not to do so. For the Applicant to now complain that the prosecutor should have warned it of the repercussions of its guilty pleas is not the prosecutors’ responsibility. The Supreme Court of Canada in R. v. Boucher 1954 3 (SCC), [1955] S.C.R. 16 approved the following statement of the duty of the prosecutor:
“The learned counsel for the prosecution has most accurately conceived his duty, which is to be assistant to the court in the furtherance of justice, and not to act as counsel for any particular person or party.”
[24] The Applicant urges the court to find that the law is arbitrary, overbroad, or grossly disproportionate and therefore breaches the principals of fundamental justice. I conclude, after a review of the legislative scheme at issue, that one of the main purposes of the legislation is to prevent minors from buying tobacco products. See R v. Clothier, supra. In my view prohibiting the sale of tobacco products for a prescribed period of time after two convictions of selling tobacco products to minors is not arbitrary, overbroad, or grossly disproportionate having regard to the purpose of the legislative scheme.
[25] I also conclude that the punishment of a 6 month prohibition is not cruel and unusual punishment contrary to s. 12 of the Charter as urged by the Applicant, nor can it be considered a secondary sentence.
[26] The onus is on the Applicant to demonstrate that the imposition of the prescribed minimum, either in this particular case, or in reasonable hypothetical circumstances would be so excessive or “grossly disproportionate” that Canadians would find it abhorrent and intolerable. It is obvious that the test is exceptionally high and requires more than proof that the sentence is harsh, severe, excessive or merely disproportionate. See R. v. Ferguson, [2009] 1 S.C.R. 96 at paras. 14 and 30; R. v. Morrissey (2000), 2000 SCC 39, 148 C.C.C. (3d) 1 at 16-17 (S.C.C.) and R. v. Goltz (1991), 1991 51 (SCC), 67 C.C.C. (3d) 481 (S.C.C.) at 491-97 and 504-507.
[27] As Chief Justice MacLachlin stated in R. v. Ferguson, supra, paras. 54 and 55:
“...The law mandates a floor below which judges cannot go. To permit judges to go below this floor on a case-by-case basis runs counter to the clear wording of the section and the intent that it evinces.
In granting a constitutional exemption, a judge would be undermining Parliament’s purpose in passing the legislation: to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by parliament. The discretion that a constitutional exemption would confer on judges would violate the letter of the law and undermine the message that animates it.”
[28] The court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. See R. v. Latimer, (2001)2001 SCC 1, 150 C.C.C. (3d) 129 (S.C.C.) at para. 77. See also a very similar case to the one at bar 380548 B.C. Ltd. V. British Columbia [1998] B.C.J. No. 637.
[29] The sale of tobacco to minors is a serious issue and I conclude that the prohibition that the Legislature has deemed fit to impose under these circumstances is not so excessive as to outrage the standards of decency.
[30] I therefore conclude that the Applicant has not met the onus that there is some merit to its argument that there is a serious issue to be tried. Should I be wrong in that conclusion I am also of the view that there is no irreparable harm to the Applicant.
[31] In a case similar to the one at bar, Wilson J. in Oldfield Garage Services Ltd. v. Woodland, [2003] B.C.J. No. 1966 at para. 46 concluded that a monetary loss is not a factor to be considered. As was stated in RJR-MacDonald, supra, irreparable harm refers to the nature of the harm suffered rather than its magnitude. It includes harm which either cannot be quantified in monetary terms or which cannot be cured. The alleged loss of income suggested by the Applicant as a result of the prohibition is purely monetary and has been clearly quantified. There is no evidence before me that such a loss cannot be made up over time. The possible loss of the franchise is mere speculation with no supporting evidence.
[32] The Applicant also argues that the balance of convenience favours it. I disagree.
[33] As was stated in R.J.R. MacDonald, supra, at para. 71:
“In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.”
[34] I conclude that the minimal requirements of protecting minors from tobacco products is a significant public interest and the legislation and direction given to the Minister regarding prohibition of the sale of such products is clearly pursuant to that responsibility. As such, in my view, the balance of convenience favours the Minister over the economic interests of the Applicant. See also, a similar case to the one at bar, Arctic Grocers v. Northwest Territories, [2011] N.W.T.J. No. 14.
[35] I am of the view that the delay that the Applicant complains of in receiving the Notice of Prohibition is without merit. The delay in this case was approximately a year. Whether that is significant depends on the facts. There must be sufficient causal connection between the state-caused delay and any prejudice suffered by the Applicant. Delay without more will not warrant a stay of proceedings. There must be proof of significant prejudice to the Applicant as a result of the delay. See Blencoe, supra; Oldfield, supra.
[36] In the case at bar, I have not been persuaded of any such connection. I do not find the time of one year before issuing the prohibition order inordinate based on the facts of this case. The appeal periods expired in April 3013 and yet the Applicant still pleaded guilty to non-compliance in May 2013. I therefore have difficulty accepting the argument that the delay has prejudiced the Applicants rights of appeal. As well, the Applicant had the ability to sell tobacco products during the year so clearly there was no economic prejudice.
Conclusion:
[37] The application to temporarily stay the prohibition order is dismissed.
[38] If the Respondent insists on making submissions on costs it may do so in writing of not more than four double-spaced pages in addition to any offers and bills of costs, by filing such submissions within three weeks of the date of release of this judgment. The Applicant shall have three weeks to respond with the same number of pages. The filings should be addressed to me in Hamilton. Failure to receive the Respondents’ filings within three weeks will conclude the matter.
Arrell J.
Released: August 19th, 2014
ST. CATHARINES COURT FILE NO.: 55240/14
DATE: 2014-08-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1251553 ONTARIO INC. o/a CANADIAN TIRE GAS BAR
Moving Party/Applicant in Motion
- and -
THE MINISTER OF HEALTH AND LONG-TERM CARE
Responding Party/Respondents in Motion
REASONS FOR JUDGMENT
Arrell J.
Released: August 19th, 2014