2300246 Ontario Limited v. Minister of Health and Long-Term Care

[Indexed as: 2300246 Ontario Ltd. v. Ontario (Minister of Health and Long-Term Care)]

Ontario Reports

Ontario Superior Court of Justice,

Sloan J.

December 1, 2014

123 O.R. (3d) 513 | 2014 ONSC 6958

Case Summary

Administrative law — Duty to act fairly — Automatic prohibition which prohibited owner of supermarket from selling tobacco products for nine months being issued under Smoke Free Ontario Act on basis of convictions of its employees for selling cigarettes to minors — Act providing defence of due diligence to employers who are charged directly with selling cigarettes to minors — Automatic prohibition process not permitting owner to demonstrate that it exercised due diligence — Owner denied procedural fairness — Smoke Free Ontario Act, S.O. 1994, c. 10.

The applicant was the owner of a supermarket which sold tobacco products. After employees were convicted of selling cigarettes to minors on three occasions, the minister issued a notice of prohibition under s. 16(2) and (5) of the Smoke Free Ontario Act notifying the owner of an automatic prohibition ("AP") that prohibited it from selling tobacco products for nine months. The applicant had never been charged with or convicted of any offence under the Act. Had it been charged personally, the defence of due diligence would have been available to it. That defence is not available under the Act to employees. The applicant had received notices that its employees were charged with an offence under the Act but, in each case, the notice was received after the employees were convicted. The notices did not inform the applicant of the possibility of an AP based on its employees' convictions. The applicant brought an application for judicial review of the AP.

Held, the application should be allowed.

The applicant had the legitimate expectation of notice, an opportunity to hear the case against it and present a defence, and to have the minister record the result of the hearing and base later AP decisions on those results. The notices that were sent to the applicant after the employees' convictions did not provide the applicant with sufficient particulars. The applicant was not given an opportunity to demonstrate that it exercised due diligence. Where an employee is charged but the employer is not, the minister's information system must have a mechanism to record both whether the employee was convicted and whether the employer was deemed liable. Under the current system, even if an employer proves that it was duly diligent and should not be liable for the employee conviction, the minister would count the employee conviction under s. 16 and would issue an AP to a faultless employer. The deficient notice, the consequent lack of opportunity to present a due diligence defence and the information system's failure to present full information to the minister all resulted in the applicant being denied procedural fairness.

Cases referred to

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61;
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 1999 699 (SCC);
Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 1985 23 (SCC);
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9;
C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, 2003 SCC 29;
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9;
Finch v. Assn. of Professional Engineers & Geoscientists (British Columbia), [1994] B.C.J. No. 930, 1994 1686 (BC CA);
Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, [2006] S.C.J. No. 31, 2006 SCC 31;
Halifax (Regional Municipality) v. Canada (Public Works and Government Services), [2012] 2 S.C.R. 108, [2012] S.C.J. No. 29, 2012 SCC 29;
Kalin v. Ontario College of Teachers (2005), [2005] O.J. No. 2097, 2005 18286 (ON SCDC);
Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, 1980 10 (SCC);
London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, 2002 3225 (ON CA);
Mavi v. Canada (Attorney General), [2011] 2 S.C.R. 504, [2011] S.C.J. No. 30, 2011 SCC 30;
Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, 2002 SCC 11;
Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 S.C.R. 164, [1985] S.C.J. No. 49, 1985 50 (SCC);
R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 1978 11 (SCC);
Schofield v. Ontario (Minister of Consumer and Commercial Relations) (1980), [1980] O.J. No. 3613, 1980 1726 (ON CA);
Waxman v. Ontario (Racing Commission), [2006] O.J. No. 4226, 2006 35617 (ON SCDC).

Statutes referred to

Health Protection and Promotion Act, R.S.O. 1990, c. H.7
Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(2)
Negligence Act, R.S.O. 1990, c. N.1, s. 5
Provincial Offences Act, R.S.O. 1990, c. P.33
Smoke-Free Ontario Act, S.O. 1994, c. 10
O. Reg. 48/06

APPLICATION for judicial review of an automatic prohibition under the Smoke Free Ontario Act.

Alan S. Cofman, for applicant.

Sunil Mathai and Meagan Williams, for respondent.

SLOAN J.: —

Overview

[1] This case deals with the Smoke-Free Ontario Act, S.O. 1994, c. 10 ("SFOA").

[2] Most of the facts are not in dispute.

[3] The applicant is the current franchisee and owner of Fortinos in Ancaster, Ontario. Fortinos is a supermarket, which sells tobacco products, among other items.

[4] In March of this year, the Minister issued a notice of prohibition under s. 16(2) and (5) of the SFOA to Fortinos Ancaster. The notice was issued after employees at that location were convicted of selling cigarettes to minors on three separate occasions between 2011 and 2013. The notice notifies the owner of an automatic prohibition ("AP") that prohibits Fortinos from selling tobacco products for nine months.

[5] Neither Fortinos itself, nor its predecessor owner/ operator, were ever charged nor convicted of any offence under the SFOA. Two of its employees, and one employee of the predecessor, were convicted of selling to minors, contrary to s. 3(1) of the SFOA. In each case, a conviction was entered approximately two weeks after the charges were laid. The appeal period for this type of offence is 15 days. None of the convictions were appealed within that time.

[6] The real question for this court to determine is whether or not the applicant should have been entitled to have a hearing or to make a defence before this AP took effect.

[7] To prohibit the applicant from selling tobacco products for nine months likely means the loss of at least $80,000 in revenue, possible disruptions or layoffs for some of its employees, along with reputational harm.

[8] The applicant seeks judicial review of the AP issued by the Minister, and asks that it be quashed. It argues that this court should hear the matter because of its urgency, and that a delay to file with the Divisional Court will cause injustice. It therefore brings this application under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Application allowed.

End of Document