Court File and Parties

Court File No.: CV-16-547359 Date: 2016-07-06 Ontario Superior Court of Justice

Between: COLLEGE OF VETERINARIANS OF ONTARIO, Applicant – and – BIRGIT JOHNSTON, personally, and BIRGIT JOHNSTON, carrying on business as CUTTING EDGE K9 ORAL HYGIENE, Respondents

Counsel: Natasha S. Danson, for the Applicant Birgit Johnston, on her own behalf

Heard: June 7, 2016

Before: M. D. Faieta J.

Reasons for Decision

Introduction

[1] The Applicant, the College of Veterinarians of Ontario (“College”), brings this Application for an order that the Respondents cease: (1) engaging in the practice of veterinary medicine; and (2) holding themselves out as engaging in the practice of veterinary medicine. The question of law raised on the first issue focuses on whether cleaning a dog’s teeth without anaesthesia amounts to engaging in the “practice of veterinary medicine.”

[2] At the outset of the hearing of this Application, the Respondents brought a motion for the adjournment of this Application in order that: (1) a motion may be filed to transfer this proceeding to the Central South Region so that this matter may be heard in St. Catharines, Ontario; and (2) a timetable be approved so that the preliminary procedural steps in this Application be undertaken in order that this Application be heard in March 2017.

[3] The Applicant submits that an adjournment of the Application should only be granted if I grant an interlocutory injunction barring the Respondents from engaging in the practice of veterinary medicine and holding themselves out as engaging in the practice of veterinary medicine, pending the hearing of the Application. As the College was aware that the Respondents might be seeking an adjournment, the College served their materials in support of an interlocutory injunction about two weeks earlier.

[4] I provided the Respondents with a copy of Rule 13.1 of the Rules of Civil Procedure and the Consolidated Practice Direction which govern the transfer of a civil proceeding to another county. The Respondents understand that their motion to transfer this proceeding to a court in the Central South Region must be submitted in writing to the Regional Senior Judge for that region. Ms. Johnston stated that she would be filing a motion to transfer this proceeding as soon as possible.

[5] For the reasons described below, I have adjourned this Application and dismissed the motion for an interlocutory injunction.

Background

[6] The Respondent, Birgit Johnston (“Johnston”), is the owner and operator of the Respondent, Cutting Edge K9 Oral Hygiene (“Cutting Edge”). Cutting Edge is a dog teeth cleaning salon located in Johnston’s home in Niagara Falls, Ontario.

[7] Cutting Edge’s website states:

All Natural Canine teeth cleaning. Anaesthesia free!

Here at Cutting Edge I provide a calm, relaxed environment for your dog to have his/her teeth cleaned based on my extensive training and gentle handling techniques. This technique is very safe and your pet remains comfortable and alert during the procedure. Your dog simply lays in my lap while I talk, praise and reassure him/her while removing the tarter from his/her teeth. …

If the dog is not suitable for anesthesia-free cleaning, I will let the owner know and there will be no charge. …

Special Note: This technique is considered hygienic and not to be confused with a medical procedure. I am not a Veterinarian. I do not practice Veterinary Medicine. I do not diagnose or treat disease. …

A little bit about who I am and what I am about. My name is Birgit Fast Johnston. I am the owner of Cutting Edge and have been professionally trained and qualified in canine oral cleaning. …

Benefits of Cutting Edge K9 Oral Hygiene Teeth Cleaning:

• No anesthetic or sedation used;
• Helps eliminate bad breath;
• Convenience and flexibility
• Low Cost
• Less stress on your dog
• No blood work required
• Gentle care for your dog

The teeth cleaning procedure takes approximately 1 to 2 hours and includes:

• Removal of plaque and tarter/calculus
• Polishing
• Anti-bacterial gum treatment
• Home Care Instructions

Special note: This technique is considered hygienic and not to be confused with a medical procedure. I am not a Veterinarian. I do not practice Veterinary Medicine. I do not diagnose or treat disease. …

Teeth Cleaning.

The first appointment starts with a consultation and visual exam of the mouth. …

I remove tarter and calculus from all teeth surfaces and then polish to keep teeth smooth and free of ridges.

When you come back for your pet, we will discuss my findings and I will explain a maintenance program to keep your pets mouth healthy between professional cleanings.

This procedure is not suitable for all dogs, eg. If your dog is on immune-suppressing prescription medications (i.e. prednisone), dogs with severe gum disease or very loose molars, or dogs with a history of bite aggression towards people. [Emphasis added.]

[8] In January 2014 the College learned that Johnston was providing the above services. The College sent a letter dated January 27, 2014 that demanded that the Respondents cease and desist from providing these services. The College sent a further demand letter, dated April 1, 2014, to Johnston.

[9] More than one year later, in October 2015, the College commenced an investigation to determine if Johnston was holding herself out as engaging in the practice of veterinary medicine.

[10] Martin Fischer (“Fischer”) is an Investigation and Inspections Specialist employed by the Applicant. His affidavit describes an undercover investigation that he conducted in relation to the services provided by the Respondent.

14. As part of the investigation, I requested the assistance of the veterinarian Dr. Tammy Hornak of Grand River Veterinary Clinic in Caledonia, Ontario. Dr. Hornak arranged to obtain a dog who could pose as mine for the purposes of having a teeth cleaning performed by Ms. Johnston / K9. Dr. Hornak ultimately obtained a 7 year old King Charles spaniel named Riley for use in the investigation. I came up with the fictitious name “Lucky” for the dog.

15. On or around October 15, 2015, I submitted an email via K9’s website. I used the pseudonym Rhonda Sims and asked about having the teeth cleaned on a 7 year old King Charles spaniel with a heart murmur.

16. On or about October 16, 2015 I called the number advertised on K9’s website and left a voicemail. In my voicemail I identified myself as Mike Fletcher and stated that my wife, Rhonda Sims, had previously sent an email to book a teeth cleaning for our dog. I left my number and requested a call back.

17. On or about October 17, 2015 I received an email response to the email address for Rhonda Sims from Ms. Johnston offering to do the teeth cleaning. Ms. Johnston explained that she had worked on many dogs with heart murmurs and further explained that the “beauty” of anesthesia-free teeth cleaning is that she could work on many dogs that veterinarians cannot. We agreed over email to an appointment for the date of October 26, 2015 at 11:00 a.m. Ms. Johnston explained that the procedure would take between 1 and 2 hours depending on the condition of the dog’s teeth and the dog’s “cooperation”. …

18. On or about October 26, 2015 at approximately 9:15 a.m. I arrived at Grand River Veterinary Clinic. I met Dr. Hornak who showed me Lucky. Dr. Hornak had performed an examination of Lucky and his teeth, with a report to follow. She also took photographs of Lucky’s teeth.

19. I subsequently took Lucky to K9, which is located at 2758 Portage Road, Niagara Falls, Ontario. I believe this location is also Ms. Johnston’s home address. I arrived at approximately 10:43 a.m.

20. Upon arrival, Ms. Johnston greeted me and examined Lucky’s mouth. She told me that one side of Lucky’s mouth looked better than the other, and posited that Lucky must chew on one side and not the other. She asked about Lucky’s health and I advised that he had cataracts and a heart murmur. Ms. Johnston told me that she would likely be an hour and a half with Lucky and that she would call me when she was done.

21. I left Lucky with Ms. Johnston at approximately 10:48 a.m. after signing a “liability waiver” and leaving my telephone number. …

22. At approximately 12:09 p.m. I received a call from Ms. Johnston and let it go to voicemail. In the voicemail, Ms. Johnston advised that Lucky was ready to be picked up.

23. At approximately 12:29 p.m. I arrived at K9, where I was greeted by Ms. Johnston and her husband. I did not get the husband’s name. We discussed the procedure Ms. Johnston had performed and she advised that she had removed two of Lucky’s teeth. She told me that the two teeth were “so encased” and were floating in the gums, and that one tooth had no root. She also explained that, with respect to another tooth, there was tartar left in a crack that she could not easily remove. Her husband stated that cleaning Lucky’s teeth was a “two man job”, and Ms. Johnston explained that Lucky had shown a lot of resistance during the cleaning.

24. Ms. Johnston charged me $160 for the dental cleaning, which I paid her in cash. She told me she did not charge HST. Ms. Johnston’s husband also gave me several business cards for K9, asking that I distribute them. …

25. On my way out, Ms. Johnston told me that Lucky’s breath was very good and that Lucky would be “much happier”.

26. I also took a photograph of the vehicle in the driveway of K9, which had a sign on the door advertising K9. …

27. I recorded my conversations with Ms. Johnston and her husband from October 26, 2015. …

28. After I left K9, I returned to Grand River Veterinary Hospital, arriving at approximately 1:40 p.m. I returned the dog to Dr. Hornak, who agreed to perform a further examination on Lucky to determine what had been done to the teeth so that she could provide her report to me.

29. Later that day, Dr. Hornak sent me an email and advised me that roots were left behind from the extractions and that Lucky was experiencing pain. She also advised that Lucky required many extractions and that the procedure at K9 with Ms. Johnston would have been “very painful” for Lucky due to the number of mobile teeth he had. …

[11] An affidavit by Dr. Tammy Hornak, a veterinarian, states as follows:

2. As part of the investigation, I secured a 7 year old King Charles spaniel named Riley who was being fostered by a local family. I was told that Riley would undergo an anesthesia-free dental cleaning by Ms. Johnston at K9. I agreed to examine Riley before and after the cleaning and to provide the College with a report summarizing my observations.

3. On or about October 26, 2015 I observed Riley’s teeth prior to him undergoing the dental procedure by Ms. Johnston / K9. I took several pictures.

4. I also observed Riley’s teeth on or about October 26, 2015 immediately after the dental procedure and took several more pictures and x-ray images. I noted that two of Riley’s teeth were removed. The root tips of one of the removed teeth were visible, and the caudal (or deeper) root tip was also noted on the x-ray image. As reflected in the pictures, there was tarter on most surfaces, along with pus and trauma. During gentle probing under sedation, Riley was extremely reactive and exhibited symptoms of pain. I provided Metacam, a pain medication.

5. The foster parent called me that evening and advised that Riley was pawing and rubbing his face on the ground. I therefore applied an Elizabethan collar and dispensed codeine for additional pain control.

[12] Dr. Hornak’s report dated October 28, 2015 states:

Riley presented to Grand River Veterinary Hospital for physical and dental evaluation pre and post non-anesthetic dental scaling.

General health report attached.

Pre and Post Canine Dental Chart attached. The pre dental chart was completed the morning prior to the non-anesthetic scaling. Riley was not sedate for the pre evaluation and it was therefore limited. Pre and post photos are provided and they can be distinguished not only by the obvious changes on the teeth but also by the colour of the gloves.

Post procedure

Evaluation performed under propofol sedation. Photos reveal 205 and 206 have been removed. Remaining 206 root tips visible, caudal root tip noted on radiograph. Photos also show the remaining tarter (on most surfaces) pus and trauma. During gentle probing, even under sedation, Riley was extremely reactive/painful. Especially when probing the root tips of 206 and the pockets of 208. Metacam was given for pain.

That evening the Foster Parent called to report that Riley was pawing and rubbing his face on the ground. We applied an E-collar and dispensed codeine for additional pain control.

[13] Johnston states that she did not remove Lucky’s teeth. Instead, she states that two teeth were very loose and fell out while she was trying to remove tarter from these teeth. Johnston relies on two photographs that accompany Dr. Hornak’s report (see pages 120 and 121 of the Application Record) as showing that these teeth were loose before she saw Lucky.

[14] The Liability Waiver provided by the Respondents and signed by Fischer, posing as "Mike Fletcher", states:

… By signing this agreement, you agree to indemnify and release CUTTING EDGE K9 ORAL HYGIENE…

All instruments are sterilized and all precautions are taken to maintain a hygienic work area. Every effort will be made to clean and remove all the plaque and tartar from your pet’s teeth within the scope of practice for a person who is not a licenced veterinarian. It is important to note that your pet will be awake during the procedure, and depending on how much he or she wiggles, it may be impossible to remove all tartar from the teeth.

Your dog may be given a non-prescribed, homeopathic remedy to calm him/her for the procedure and/or “Baby Orajel” to sooth sore gums.

NOTE: I am not a veterinarian and I am not performing veterinary dentistry. I do not diagnose disease or pull teeth. If your pet is in severe pain, I recommend you take him/her to the vet. [Emphasis added.]

[15] This Application was commenced on February 24, 2016. The hearing of this motion was adjourned on April 20, 2016 at the Respondents’ request.

Analysis

[16] In bringing this Application, and motion for an interlocutory injunction, the College relies upon s. 39(1) of the Veterinarians Act, R.S.O. 1990, c. V.3 (the “Act”), which states:

Where it appears to the College that any person does not comply with any provision of this Act, the regulations or the by-laws, despite the imposition of any penalty in respect of such non-compliance and in addition to any other rights it may have, the College may apply to a judge of the Superior Court of Justice for an order directing the person to comply with the provision, and upon the application the judge may make the order or such other order as the judge thinks fit. [Emphasis added.]

[17] In RJR – MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pages 348-9, the Supreme Court of Canada described the three-part test for an interlocutory injunction as follows:

(1) Is there a serious issue to be tried?

(2) Will the moving party suffer irreparable harm if an injunction is refused?

(3) Does the balance of convenience favour granting an injunction?

[18] The College submits that, on this motion for an interlocutory injunction, it is not required to establish that the Respondents failed to comply with the Act but only that there is a “serious issue” related to whether the Respondents failed to comply with the Act. It further submits that irreparable harm need not be proven when an interlocutory injunction is sought to prevent the breach of a statute: College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese Medicine Assn., 2014 ONSC 3334, [2014] O.J. No. 2614, at paras. 32-36.

[19] While the College is given standing pursuant to section 39 of the Act to bring an application for an injunction to prevent a breach of the Act, there is nothing in the Act that modifies the test for an interlocutory injunction.

[20] In Ontario (Attorney General) v. Ontario Teachers' Federation (1997), 36 O.R. (3d) 367, a motion for an interlocutory injunction restraining teachers from continuing to strike in violation of a statute was dismissed. MacPherson J., as he then was, rejected the submission that irreparable harm and the balance of convenience need not be considered once it was established that there was a serious issue of a breach of a statute. He stated, at para. 36:

I would make one final observation about the Attorney General's argument on this point. In my view, it is important to recall the nature of the conclusion on the first branch of the American Cyanamid test. It is only that there is a serious issue to be tried. It strikes me as strange that, except in the context of extreme contempt for the law such as that demonstrated in Bear Island and Grabarchuk, an affirmative conclusion on such a low hurdle branch of the test would obviate the need to proceed to an analysis of the other two branches. In short, the leading cases in this area of the law - American Cyanamid, Metropolitan Stores and RJR Macdonald - enunciate a three-branch test for a reason; they are all to be considered.

[21] I agree with the above statement. Unlike the situations in Bear Island and Grabarchuk, the Respondents have not demonstrated “extreme contempt for the law” in that they have not been convicted on numerous occasions, or at all, for a violation of a statute nor have they failed to comply with an injunction. Accordingly, it is my view that it is just to apply all three parts of the RJR Macdonald test in determining whether an interlocutory injunction should be granted in respect of an alleged breach of statute. [^1]

[22] I now turn to the application of the RJR Macdonald test.

Issue #1: Does The Application Raise A “Serious Issue” To Be Tried?

[23] The Applicant need only establish that the Application is neither frivolous nor vexatious in order to show that there is a “serious issue” to be tried.

The Applicant’s Position

[24] The Applicant relies on the opinion of a veterinarian and the Applicant’s former President, Dr. Nigel Gumley, for the view that the Respondents engage in the practice of veterinary medicine in that the services provided by the Respondents to Lucky constitute the “practice of dentistry.” His affidavit states:

The provision of teeth cleaning beyond brushing constitutes the practice of veterinary medicine, as outlined in the Veterinarians Act. Only a licensed veterinarian or an appropriately trained veterinary auxiliary under direct supervision of a licensed veterinarian have the training to properly diagnose and treat dental disease in dogs and other animals. Due to the difficulty in obtaining a proper examination and assessment of dental oral health in awake animals, the only accepted technique for proper cleaning must follow a proper oral assessment and treatment under anesthesia. Therefore, the performance of anesthesia-free teeth cleaning not only is a part of the practice of veterinary medicine, it is an unacceptable method. …

In its Professional Practice Standard on Veterinary Dentistry, dated March 2015, the College of Veterinarians of Ontario (CVO) states that “Performing dentistry on animals falls within the scope of practice of veterinary medicine”. Specifically, the Standard defines veterinary dentistry to involve “every aspect of oral health care procedures including but not limited to the cleaning, adjustment, filing, extraction or repair of teeth and treatment of or surgery to related structures”. …

As advertised on the website for Cutting Edge K9 Oral Health, and from material supplied following an investigation, Birgit Johnston and her company, Cutting Edge K9 Oral Health engaged in dental health cleaning to the level that it met the definition of the practice of veterinary dentistry, and as such, a part of the practice of veterinary medicine.

In providing the dental cleaning without anesthesia, Birgit Johnston and Cutting Edge K9 Oral Health failed to properly inspect and treat the oral pathology present on at least one dog, provided sub-par dental cleaning, mislead owners of pets as to her capabilities and level of care provided, and took risks in subjecting an elderly patient with potential cardiac disease to the cleaning without anesthesia where adequate veterinary supervision was absent. In general, anesthesia-free dental cleaning cannot adequately assess dental oral health, does not provide management for pain, does not allow for additional and necessary techniques such as radiography, potentially increases stress and risk of injury to both pet and operator, especially where the patient has underlying health conditions. [Emphasis added.]

The Legislation

[25] The Applicant submits that the Respondents have breached s. 11(1) of the Act, as amended, which provides:

No person shall engage in the practice of veterinary medicine or hold himself, herself or itself out as engaging in the practice of veterinary medicine unless the person is the holder of a licence;

[26] The “practice of veterinary medicine” includes the practice of dentistry, obstetrics including ova and embryo transfer, and surgery, in relation to an animal other than a human being: se. 1(1) of the Act. [Emphasis added.]

[27] Neither “veterinary medicine” nor “dentistry” is defined under the Act. Accordingly, a purposive interpretation of the Act must be undertaken to determine the meaning of “veterinary medicine” and “dentistry” within the Act.

Principles of Interpretation

[28] In Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, 112 O.R. (3d) 354, at para. 32, the Ontario Court of Appeal stated that a purposive approach is to be applied when interpreting legislation. It stated, at paras. 33-35:

The Supreme Court of Canada has consistently endorsed Elmer Driedger's purposive approach to statutory interpretation…As Driedger explains, at p. 87 of his Construction of Statutes, 2d ed., (Toronto: Butterworths, 1983):

[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The purposive approach to statutory interpretation requires the court to take the following three steps: (1) it must examine the words of the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within; and (3) it must consider whether the proposed interpretation produces a just and reasonable result.

The factors comprising the "entire context" include the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and the legislature's intent in enacting the Act as a whole and the particular provision at issue…A just and reasonable result promotes applications of the Act that advance its purpose and avoids applications that are foolish and pointless.

Ordinary and Grammatical Meaning

Veterinarian Medicine

[29] The Concise Oxford Dictionary, Twelfth Edition, 2012, Oxford University Press Inc., New York, defines “veterinarian” as a North American term for “veterinarian surgeon.” In turn, “veterinarian surgeon” means “a person qualified to treat diseased or injured animals.” “Medicine” means “the science or practice of the diagnosis, treatment and prevention of disease (in technical use often taken to exclude surgery.)”

Dentistry

[30] The Concise Oxford Dictionary, Twelfth Edition, 2012, Oxford University Press Inc., New York, defines “dentist” as “a person who is qualified to treat the diseases and conditions that affect the teeth and gums.” Oxforddictionaries.com defines “dentistry” as the “treatment of diseases and other conditions that affect the teeth and gums, especially the repair and extraction of teeth and the insertion of artificial ones.”

[31] In British Columbia Veterinary Medical Assn. v. MacDonald, 2005 BCCA 225, [2005] B.C.J. No. 893, the British Columbia Court of Appeal found that the cleaning of pet’s teeth was not “dentistry.” The court stated, at paragraph 9:

There is no definition of "dentistry" in the Act. The word is not ambiguous by itself or in the statutory context. It should be given its ordinary meaning. The word is defined in the Oxford dictionary as "the profession or practice of a dentist". "Dentist" is defined as "one whose profession it is to treat diseases of the teeth, extract them, insert artificial ones, etc.; a dental surgeon". That does not describe the services provided by the respondent. She does not treat diseases of the teeth. It is interesting that the same dictionary defines "dental" as "of or pertaining to the teeth, or to dentistry; of the nature of a tooth" and the Legislature did not choose to include in the definition of "veterinary medicine" dental services or all things dental. Clearly the Legislature intended to restrict this aspect of the prohibition of unlicensed veterinary practice to the scientific treatment of diseases of the teeth in animals and not to include all dental services to animals. [Emphasis added.]

[32] In my view the above analysis is applicable in determining the ordinary and grammatical meaning of the word “dentistry” under the Act.

Entire Context

[33] The “practice of veterinary medicine” is given an expansive definition to “include” the practice of “dentistry.”

[34] The Act governs the practice of veterinary medicine in Ontario. It incidentally serves to promote animal welfare in Ontario. Animal welfare is more directly addressed by the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (“OSPCA Act”). Section 11.1 of the OSPCA Act requires persons who own or have custody or control of an animal to comply with standards of care prescribed by regulation. Section 2 of Regulation 60/09 provides for basic standards of care for animals. For instance, it requires that every animal must be provided with the care necessary for its general welfare. However, the OSPCA Act provides that this statutory obligation does not apply in respect of an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry (s. 11.1(2), nor does it apply to a veterinarian providing veterinarian care in accordance with standards of practice established under the Act or to a person acting under the supervision or under orders of a veterinarian (s. 11.1(3)).

[35] The views regarding the scope of “veterinarian dentistry” outlined in the Professional Practice Standard published by the Applicant and relied upon by Dr. Gumley in his affidavit, referenced earlier, are not binding on this court nor are they determinative of the meaning of the Act. Nevertheless the views expressed in the Practice Standard are to be considered and given the appropriate weight. However, I was not provided with a copy of the Practice Standard and thus I am unable to consider it.

Conclusion

[36] It is my view that the Applicant raises a “serious issue” of whether the Respondents have engaged in the “practice of dentistry” and the “practice of veterinary medicine” in light of all of the evidence, particularly Dr. Gumley’s affidavit evidence. However, the Applicant does not raise a “serious issue” in respect of whether the Respondents have held themselves out as engaging in the practice of veterinary medicine. The Liability Waiver provided to Mr. Fischer by the Respondents as well as the Respondents’ website clearly state, repeatedly, that they are not engaging in veterinary medicine and veterinary dentistry. Both the Waiver and the website clearly state that Johnston is not a veterinarian. In light of the above evidence, I am of the view that a reasonable person would be unable to conclude that the Respondents have held themselves out as persons engaged in the practice of veterinary medicine.

Issue #2: Irreparable Harm?

[37] In RJR MacDonald Inc. v. Canada (Attorney General), the Supreme Court of Canada explained “irreparable harm” as follows:

"Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court’s decision…where one party will suffer permanent market loss or irrevocable damages to its business reputation…or where a permanent loss of natural resources will be the result if a challenged activity is not enjoined. [Emphasis added.]

[38] Johnston runs her dog teeth cleaning salon in Niagara Falls on Mondays out of her home. During the remainder of the week (Tuesday-Saturday) she is employed as the manager of a pet grooming salon at another location. An interlocutory injunction would effectively end the Respondents’ teeth cleaning business until this Application is heard.

[39] On the other hand, I am not satisfied that the Respondents harmed Lucky or another animal based on the evidence provided. The Applicant submits that Johnston removed two of Lucky’s teeth. Johnston states that they fell out because they were loose. The transcript provided appended to Fischer’s affidavit shows that Johnston told him when she met Lucky and looked into his mouth that he had two teeth that they “were so encased they were just floating in the gums.” One of the teeth did not have a root. Dr. Hornak’s report indicates that she had a limited view of Lucky’s teeth prior to his visit to Johnston. The report does not comment on whether these teeth were loose, or had roots, before Lucky’s visit to Johnston.

[40] There is no other evidence that could substantiate a finding of irreparable harm. Without such evidence, I find that the College failed to satisfy the second part of the test set out in RJR MacDonald.

Issue #3: Balance Of Convenience

[41] The assessment of the balance of convenience requires the “…determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory decision, pending a decision on the merits.”

[42] In Ontario (Attorney General) v. Ontario Teachers' Federation, [1997] O.J. No. 4361, 36 O.R. (3d) 367 MacPherson J., as he then was, stated, at para 62:

The courts have consistently held that a public rights injunction, brought by the Attorney General to restrain an alleged statutory breach, will only be granted in exceptional cases, and in particular where:

(a) there is repeated flouting of the law following determinations of illegality by the body entrusted with making those findings, or there is a serious and established risk to public health and safety;

(b) the court is satisfied that the alleged breach of law is clear; and

(c) the enforcement provisions of the statute in question have proven ineffective.

[43] This test is equally applicable in these circumstances.

[44] The Respondents have not repeatedly flouted the law. They have not even been found to have breached the law. For the reasons given earlier, I am not satisfied that the delivery of teeth cleaning services by the Respondents represents “a serious and established risk to public health and safety.” Although the Applicant's position raises a serious issue to be tried, it has not established that the Respondents have clearly breached the Act. Finally, there is no evidence that the enforcement provisions of the Act have proven ineffective. There is no evidence that the Respondents have been prosecuted, successfully or otherwise, pursuant to section 40 of the Act for a contravention of section 11 of the Act.

[45] I also note that the Respondents ignored the Applicant’s cease and desist letter dated January 27, 2014. This Application was brought more than two years after the letter was sent and this motion for an injunction was brought almost 2½ years afterwards. The delay in bringing this Application and in seeking an interlocutory injunction weigh against granting an interlocutory injunction.

Conclusions

[46] For the reasons given above, I have dismissed the College’s motion for an interlocutory injunction. This Application is adjourned pending the outcome of the Respondents’ motion to transfer this Application to another county. In the event that this Application is not transferred to another county, then I will hear the Application for a permanent injunction. I direct that a case conference call be held by telephone on July 21, 2016 at 9:30 a.m. to address next steps in this proceeding. If the parties are not able to come to an agreement on the issue of costs of this motion, then I will address that matter at the case conference as well.

Mr. Justice M. D. Faieta

Released: July 6, 2016

[^1]: In College of Opticians of Ontario v. John Doe 1 (c.o.b. Great Glasses), [2006] O.J. No. 5113 a motion by the College for an interim injunction was granted following the application of all three parts of the RJR Macdonald test.