2021 ONSC 4013

COURT FILE NO.: CV-21-0124-000

DATE: 2021-06-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

North Shore Laser Clinic Inc.

V. Popescu, for the Applicant

Applicant

• and -

Attorney General of Ontario, Thunder Bay District Health Unit, Intervenor

V. Yankou and R. Bambers for the Respondent, Attorney General of Ontario

J. Clark and M. Payment, for the Thunder Bay Health Unit, assisted by J. Thompson, student-at-law

Respondents

HEARD: via Zoom May 26, 2021,

at Thunder Bay, Ontario

Madam Justice H.M. Pierce

Reasons on Application

Introduction

[1] In March 2020, following the declaration of a COVID-19 pandemic by the World Health Organization, the Province of Ontario experienced the greatest public health crisis in its history. This crisis, which Ontario sought to manage by implementing state of emergency legislation and far-reaching public health measures, is on-going.

[2] The applicant operates a business in Thunder Bay which it describes as offering medical cosmetic care. During a period in which non-essential businesses in the province were ordered closed, the Thunder Bay District Health Unit directed the applicant to close. This directive was made pursuant to regulation prohibiting delivery of personal care services during the province-wide shutdown phase.

[3] The applicant objects to this directive on the grounds that its services are delivered by a regulated health professional. It concedes that it stopped offering cosmetic services that constituted personal care; however, it contends that the core of services it delivers relate to health and not to personal care. It argues that the Health Unit erred in concluding that the applicant delivers personal care services and therefore is bound by regulation to close.

[4] The applicant also submits that because it is a clinic delivering health care, as defined by regulation, it is exempt from closure.

[5] The applicant seeks the following declarations:

1. An order that paragraph 50 of Schedule 7 of O. Reg. 82/50, made pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, and paragraph 53 of Schedule 2 of O. Reg. 82/20, made pursuant to the Act, both permit regulated health professionals, including Registered Nurses, to open to the general public to provide any services thereto that such professionals are permitted at law to provide.

2. That the applicant is a clinic as stipulated in paragraph 52 of Schedule 7 of O. Reg. 82/20, made pursuant to the Act, and as stipulated in paragraph 55 of Schedule 2 of O. Reg. 82/20, made pursuant to the Act.

3. That a clinic stipulated in paragraph 52 of Schedule 7 of O. Reg. 82/20, made pursuant to the Act, is permitted thereunder to open to the general public and, as such, able to provide medical cosmetic care and treatments thereto.

Legislative Framework for the Pandemic

[6] On March 17, 2020, in response to the COVID-19 pandemic, Ontario declared an emergency pursuant to s. 7.0.1 of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (“EMCPA”). The nature of the emergency was described in O. Reg. 50/20: that

the outbreak of a communicable disease, namely COVID-19 coronavirus disease constitutes a danger of major proportions that could result in serious harm to persons.

[7] What followed was a complex and evolving legal infrastructure intended to contain COVID-19 infection, protect the health of citizens of all ages, and blunt the economic, educational, and social impact of the pandemic.

[8] The legislative response is described in the factum of the Attorney General. Ontario Regulation 82/20 was created under EMCPA on March 24, 2020. This regulation contained detailed rules requiring the closure of non-essential businesses; it also placed conditions on the operation of businesses and organizations that remained open. In response to the fluid conditions of the pandemic, this regulation has been amended numerous times.

[9] There are 34 Public Health Units in Ontario. On July 13, 2020, O. Reg. 363/20 was enacted pursuant to EMCPA. The effect of this regulation was to place each health unit on a continuum within three stages in the re-opening scheme: Stage 1 was the most restrictive, Stage 3 the least.

[10] On July 15, 2020, O. Reg. 82/20 was renamed “Rules for Areas in Stage 1” (“Stage 1 Rules”). This regulation describes the services and businesses that may open, may open with conditions, or must close in the Grey (“Lockdown”) Zone and in the more stringently controlled “Shutdown” Zone.

[11] Stage 1 rules have since been amended more than 60 times during the pandemic. Most recently, Schedule 7 of the Stage 1 rules was amended on April 12, 2021 in anticipation of the easing of the pandemic. Section 22.1 of Schedule 7 permits personal care services in the Grey Zone under strict conditions. Because the entire province is still under Shutdown rules, this new regulation has not been implemented in any health unit’s jurisdiction.

[12] “Rules for Areas in Stage 2” are set out in O. Reg. 263/20. This regulation describes what services and businesses may open, may open with conditions, or must close in the Red Zone.

[13] On July 24, 2020, the province enacted the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 (“ROA”). This has become the umbrella legislation under which regulations to address the pandemic have been continued or amended.

[14] During most of 2020, the COVID-19 infection rates in Thunder Bay were lower than elsewhere in the province. However, by the end of the year, infection rates driven by variants of concern began to rise rapidly. Thunder Bay also experienced outbreaks in long-term care, workplaces and schools.

[15] On March 1, 2021, the Thunder Bay District Health Unit was transferred from the Stage 2 Red Zone to the more restrictive Stage 1 Grey (Lockdown) Zone.

[16] This shift involved a prohibition of indoor organized public events and social gatherings, indoor service at restaurants and bars, and closure of personal care services, casinos, bingo halls, gaming establishments and cinemas. At the time of writing, Thunder Bay has been subject to Stage 1 rules since March 1, 2021.

[17] Unfortunately, existing public health measures in the province were not sufficient to contain the rising infection rates giving rise to a Third Wave of COVID-19. The Third Wave was driven by the more contagious mutations of the virus circulating in the world, known as “variants of concern.” Ontario’s Science Advisory Table advised that younger patients were now at risk, and that the health care system, especially intensive care units, may be overrun by patients needing care. There was fear that the province’s hospitals would be unable to care for the sickest.

[18] In response, Ontario announced a province-wide “emergency brake” to take effect on April 3, 2021; it was expected to last at least four weeks. All health units, including Thunder Bay, moved, pursuant to regulation, into the most restrictive “Shutdown Zone” of Stage 1. The April 3rd directive has since been extended. At the time this application was argued, the entire province remained under the Shutdown Zone.

[19] In general terms, Shutdown required citizens to limit trips outside the home to necessary errands: grocery shopping, obtaining medication, attending medical appointments and exercise. Indoor organized public events and social gatherings were prohibited. Outdoor organized public events or social gatherings were limited to 5 persons. Retail shopping in stores, indoor dining and personal care services were also prohibited. Supermarkets, grocery stores and convenience stores were limited to 50 per cent capacity.

[20] Still, between March 28 and April 5, 2021, COVID-19 hospitalizations rose and occupancy rates in intensive care units soared. Ontario declared a third state of emergency on April 7, 2021. This was accompanied by a Stay-at-Home Order issued under O. Reg. 265/21. This regulation required citizens to remain at home except for essential purposes. “Essential purposes” were defined as grocery store or pharmacy visits, accessing health care services (including vaccinations), outdoor exercise, or work that could not be done remotely. During this period, personal care services closed.

[21] The Stay-at-Home Order was extended by virtue of O. Reg. 25/21: Extensions of Orders, s.1, until June 2, 2021 in response to the highest levels of hospitalization, including in intensive care units, since the start of the pandemic. The new order reduced the capacity of shoppers at grocery and big box stores, prohibited outdoor gatherings, and subjected offenders to fines.

[22] The crisis in the health care system was so serious that, pursuant to the EMPCA, Ontario authorized the transfer of patients to hospitals with empty beds without the patient’s consent, in order to maximize hospital capacity. Medical teams from the Canadian Red Cross and the Canadian Armed Forces were also called in to assist struggling health care facilities.

Interpretation of Regulations in Thunder Bay

[23] Since March 2020, pursuant to its powers under the Health Protection and Promotion Act, R.S.O. 1990, c. H. 7, the Thunder Bay District Health Unit has been responsible for interpreting and enforcing COVID-19 regulations in the District of Thunder Bay.

[24] Pursuant to section 1(1) of Schedule 1 (Shutdown Zone) and Schedule 6 (Gray Zone), the default position is that businesses must be closed unless specifically authorized to open.

[25] In deciding whether a business or service is permitted to open, Public Health Inspectors have been instructed to consider several factors. These include comparing the business to others that are specifically permitted to operate; considering whether the business is essential to provide the community with food, shelter, and necessary care; and the risk of potential transmission of infection the business presents, including whether it can take effective measures to prevent transmission.

[26] After reviewing the applicant’s business, the Thunder Bay District Health Unit concluded that the services offered were similar to those offered by other personal care establishments. On March 25, 2021, the Health Unit directed the applicant, and four other similar businesses, that personal care services were not permitted during the Grey Zone and must close. This instruction clarified that regulated health professionals may provide treatment for diagnosed medical conditions but cannot provide personal care services for cosmetic/aesthetic purposes.

[27] The applicant does not contend that this instruction was arbitrary.

Services Offered by the Applicant

[28] Kimberly Darosa is a Registered Nurse (General Class) with the College of Nurses of Ontario. She is the sole shareholder and director of the applicant business. The applicant operates under the general supervision of a medical director, who is registered as a general and plastic surgeon with the College of Physicians and Surgeons of Ontario. Ms. Darosa administers botulinum toxin (“Botox”) and dermal filler injections under the direction of the medical director.

[29] The applicant also employs several full-time staff members who perform services under Ms. Darosa’s supervision. These staff members are not regulated health professionals.

[30] Ms. Darosa disputes that the applicant offers personal services to the public. She identified the following “medical cosmetic care and treatment services” that were being offered to the general public when the Health Unit directed the business to close:

a) subdermal skin and tissue remodeling;

b) treatment of vascular and pigmented skin lesions;

c) non-surgical skin revitalization and resurfacing;

d) non-surgical fat reduction and body contouring;

e) laser treatment of benign lesions, acne scars, wrinkles and tattoo removal;

f) treatment of fat tissue and cellulite;

g) laser hair removal;

h) non-invasive skin tightening;

i) Botox injections; and

j) dermal filler injections.

[31] The applicant’s on-line presence advertises services intended to address cosmetic concerns: for example, skin-tightening, non-surgical fat reduction and laser technology targeting wrinkles and body hair. The applicant’s advertisements emphasize personal beauty and preserving or achieving a youthful appearance.

[32] The applicant’s Instagram post from March 1, 2021 acknowledges that “all the services we do fall into personal care services.” The focus in its advertising is cosmetic, with messaging about improving the way one looks and feels and providing an enjoyable cosmetic experience. Before April 6, 2021, the applicant’s website advertised “Head to Toe Beauty,” and functioning as a “Laser/Beauty Treatment Clinic.”

[33] In reply to a question from the court, the applicant could not identify evidence of any harm to its patrons if services were suspended. There is no evidence that the applicant accepts medical prescriptions or referrals from physicians or health care providers. I conclude that the applicant’s clientele is self-referred.

Discussion

[34] Ontario’s response to the pandemic is governed by an ever-changing regime of regulations that respond to the level of COVID-19 infection present within the province.

[35] The degree to which activities are permitted in Ontario is described by zone and colour: green being the least restrictive zone and the shutdown zone being the most restrictive.

[36] For the purposes of this argument, we will compare the regulatory response under less restrictive conditions: red (or “control”) zone, compared with grey (or lockdown) zone, and finally, the most restrictive, shutdown zone.

[37] The applicant submits that it operates a medical clinic with services delivered by registered health professionals and is therefore exempt from suspension of its services. This calls for an interpretation of the Act and regulations. The fundamental question is: what is the nature of the services being provided?

[38] If the services provided by the applicant are medical in nature, they are not caught by the prohibition against personal care services in the Shutdown Zone. If, on the other hand, the services constitute personal care, the applicant is bound by the regulation to close, regardless of who delivers the service.

[39] The applicant submits that, in accordance with Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, the words of an Act should 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.

[40] Modern statutory interpretation has become more nuanced. The Court of Appeal adopted p. 46 of Ruth Sullivan’s Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) in Oakville v. Clublink Corporation ULC et al., 2019 ONCA 826, 148 O.R. (3d) 513 at para. 38:

The key point of the principle is … that statutory interpretation cannot be founded on the wording of the legislation alone. The words of the text must be read and analyzed in light of a purposive analysis, a scheme analysis, the larger context in which the legislation was written and operates, and the intention of the legislature, which includes implied intention and the presumptions of legislative intent. In the course of resolving an interpretation problem, an interpreter must also consider the relevance of a wide range of rules, principles and maxims.

[41] Furthermore, s. 64 (1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F. provides that:

… an Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[42] This section also applies to the interpretation of regulations, which are to be interpreted “in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act:” s. 64 (2).

[43] In this case, the applicant submits that there is no ambiguity in the statutory language of O. Reg. 82/20 that permits regulated health professionals to deliver health care services in a Grey Zone or a Shutdown Zone.

[44] The applicant relies on para. 45 of the decision of Mr. Justice Perell in Canadian Appliance Source LP v. Ontario (Attorney General), 2020 ONSC 7665 to argue that the term, “regulated health professionals” is unambiguous, leading to a conclusion that they are permitted to administer health care during the pandemic.

[45] At para. 45, Perell J. observes:

If the words of the statute when read in their context are precise and unambiguous, then the words should be given their natural and ordinary sense. The court’s role is to interpret the statute not enact it; if the sense of the words of the statute is clear and unambiguous, then the court must interpret the words literally and in accordance with their plain meaning even if the consequences are absurd or unjust. Recognition of the proper roles of the legislature and the judiciary requires that courts give effect to the plain meaning of the words of a duly enacted statute, and a court should not interfere merely because it does not approve of the result produced by the statute in a particular case. [Citations omitted].

[46] In Canadian Appliance Source, the court concluded that there was no ambiguity in the term, “hardware store” used in the regulation. It rejected the applicant’s argument that an appliance store was a hardware store, entitled to remain open, and held that it was not necessary to give the term a narrow or an expanded meaning: para. 63.

[47] In Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103 (Div. Ct.), the Divisional Court considered the purpose and context of the ROA and the application of Schedule 2 of the Stage 1 Rules (as they then existed) under O. Reg. 82/20. Hudson’s Bay objected that discount and big box stores selling groceries were permitted to remain open under the regulation while it was not, despite selling similar goods. The only difference was that Hudson’s Bay did not sell groceries. The application was dismissed.

[48] The Divisional Court described the reach and effect of ROA as providing a flexible balance between health and safety and economic and business interests: para. 71. At para. 60, the court observed:

As with the EMCPA, the purpose of the ROA is to give the LGIC [Lieutenant Governor in Council] broad discretion to make orders that reduce or mitigate the public health harm Ontarians face during the pandemic, while balancing the goal of reopening the economy. In particular, these provisions disclose a clear objective to confer on Ontario the power to balance the competing demands of responding to the COVID-19 pandemic and its effects and the needs of the economy and businesses in Ontario. The ROA discloses, as one of its objects, the conferral of the power to prohibit, reduce or regulate face-to-face interactions indoors or in close quarters if necessary to reduce the risk of community-based transmission of the disease….

[49] I agree with the Divisional Court’s analysis of the purpose and intent of ROA and adopt its conclusions. In deciding whether the applicant is permitted to remain open in this case, the court must also consider the object and intent of ROA’s regulations as they apply to “personal care services” compared with “health care services.”

[50] In order to understand the intent and reach of the regulations, it is useful to compare the differences in health and personal care services allowed pursuant to regulation in various zones.

Red Zone Closures

[51] Closures within the Red Zone are specified in O. Reg. 263/20, made pursuant to ROA as follows:

1.(1) Each person responsible for a business or place, or a part of a business or place, that is required to be closed by Schedule 2 shall ensure that the business or place, or part of the business or place, is closed in accordance with that Schedule.

(2) Each person responsible for a business or place, or part of a business or place, that Schedule 2 describes as being permitted to open if certain conditions set out in that Schedule are met shall ensure that the business or place, or part of the business or place, either meets those conditions or is closed.

Personal Care Services in Red Zone

[52] The ROA does not define the term, “personal care services.” However, s. 6 (1) of O. Reg. 263/20 for the Red Zone describes the types of businesses offering personal care services and the conditions under which they may operate:

6 (1) Personal care services relating to the hair or body, including hair salons and barbershops, manicure and pedicure salons, aesthetician services, piercing services, tanning salons, spas and tattoo studios may open if they comply with the following conditions:

1. No personal care services that require the removal of a mask or face covering may be provided.

2. Persons who provide personal care services in the business must wear appropriate personal protective equipment.

3. Subject to subsection 19 (2), any locker rooms, change rooms, and showers must be closed, except to the extent they provide access to equipment storage, a washroom or a portion of the business that is used to provide first aid.

4. Steam rooms and saunas must be closed.

5. Sensory deprivation pods must be closed, unless they are used for a therapeutic purpose prescribed by, or administered by, a regulated health professional.

6. Oxygen bars must be closed.

7. Individuals must be actively screened in accordance with the advice, recommendations and instructions of the Office of the Chief Medical Officer of Health before they enter the indoor premises of the establishment.

[53] It is significant that these conditions prohibit the removal of a mask or face covering and require the service provider to wear personal protective equipment. The requirement for the patron to wear a mask would interfere with the applicant administering cosmetic procedures to the lips and face.

Grey (Lockdown) Zone Closures

[54] Ontario’s regulatory response to climbing COVID-19 infection rates during the Third Wave is more stringent under Grey or Lockdown conditions. In section 1 of Schedule 6 of O. Reg. 82/20, the general rule is that businesses in the Grey or Lockdown Zone will close unless they are permitted, by regulation, to open. The general rules for business closures in the Grey Zone provide:

1. (1) Each person responsible for a business, or a part of a business, that is not listed in Schedule 7 or 8 shall ensure that the business, or part of the business, is closed.

(2) Each person responsible for a business, or part of a business, that is listed in Schedule 7 or 8 subject to conditions shall ensure that the business, or part of the business, either meets those conditions or is closed….

Health Care and Social Services Permitted in the Grey (Lockdown) Zone

[55] Schedule 7 of O. Reg. 82/20 details businesses that may open in the Grey (Lockdown) Zone. These include:

s. 50. Regulated health professionals; and

s. 52. Organizations that provide health care including retirement homes, hospitals, clinics, long-term care facilities, independent health facilities and mental health and addictions counselling supports.

Personal Care Services in the Grey (Lockdown) Zone

[56] At the time this application was commenced, personal care services were not authorized to open in the Grey Zone. The rationale for restrictions on personal care services is explained at exhibit D of the affidavit of Lee Sieswerda:

According to scientific evidence, there are several risk factors that help drive transmission of COVID-19. Settings and services that permit close contact in enclosed and indoor spaces for extended periods of time are the biggest risk. Limiting these risks is critical to keeping Ontario safe and open.

[57] O. Reg. 82/20 has since been amended, effective April 12, 2021, to expand conditions for the delivery of personal care services in the Grey (Lockdown) Zone. However, section 22.1 has not yet been implemented in any region of Ontario because the entire province is presently in a Shutdown Zone under which personal care services may not be offered.

[58] Schedule 7 of s. 22.1 describes the types of personal care businesses and the conditions under which they can operate once the province or parts of it re-enter the Grey (Lockdown) Zone:

22.1 (1) Establishments providing personal care services relating to the hair or body, including hair salons and barbershops, manicure and pedicure salons, aesthetician services, piercing services, tanning salons, spas and tattoo studios may open if they comply with the following conditions:

1. No personal care services that require the removal of a mask or face covering may be provided.

2. Persons who provide personal care services in the business must wear appropriate personal protective equipment.

3. No patron may be permitted to line up or congregate outside of the establishment unless they are,

i. maintaining a physical distance of at least two metres from other groups of persons inside or outside the establishment, and

ii. wearing a mask or face covering in a manner that covers their mouth, nose and chin, unless they are entitled to any of the exceptions set out in subsection 2 (5) of Schedule 6.

4. No member of the public may be permitted to enter the premises except by appointment and appointments must only be made with individuals or with members of the same household.

5. No member of the public may be permitted to be in the premises except for the period of time during which they are receiving personal care services.

6. The total number of patrons permitted indoors in the establishment must be limited to the number that can maintain a physical distance of at least two metres from every other person in the establishment, and in any event, cannot exceed the lesser of,

i. five patrons, and

ii. 25 per cent capacity as determined in accordance with subsection 3 (3) of Schedule 6.

7. Any locker rooms, change rooms, and showers must be closed except to the extent that they provide access to a washroom or a portion of the business that is used to provide first aid.

8. Steam rooms and saunas must be closed.

9. Sensory deprivation pods must be closed, unless they are used for a therapeutic purpose prescribed by, or administered by, a regulated health professional.

10. Oxygen bars must be closed.

11. Individuals must be actively screened in accordance with the advice, recommendations and instructions of the Office of the Chief Medical Officer of Health before they enter the indoor premises of the establishment…. [Exceptions pursuant to s. 60 and for caregivers are omitted.]

[59] O. Reg. 82/20, Schedule 7, also lists the following health care and social services that may open in the Grey (Lockdown) Zone:

50. Regulated health professionals.

51. Organizations that provide health care including retirement homes, hospitals, clinics, long-term care facilities, independent health facilities and mental health and addictions counselling supports.

Shutdown Zone Closures

[60] O. Reg. 82/20 prescribes an even more stringent regime of presumptive business closures in the Shutdown Zone. Section 1 provides:

1. (1) Each person responsible for a business, or a part of a business, that is listed in Schedule 2 or 3 shall ensure that the business, or part of the business, is closed.

(2) Each person responsible for a business, or part of a business, that is listed in Schedule 2 or 3 subject to conditions shall ensure that the business, or part of the business, either meets those conditions or is closed.

[61] Schedule 2 does not list personal care services. In other words, businesses offering personal care services are not permitted to operate in a Shutdown Zone, which currently includes Thunder Bay. These businesses are at high risk of transmitting the virus because it is not possible to accommodate social distancing.

[62] Schedule 2 lists the following businesses categorized as health care and social services that are permitted to remain open in the Shutdown Zone:

s. 53. Regulated health professionals.

s. 55. Organizations that provide health care including retirement homes, hospitals, clinics, long-term care facilities, independent health facilities and mental health and addictions counselling support.

Regulated Health Professionals

[63] Ms. Darosa submits that because she and her medical director are members of regulated health professions, they are deemed essential. She argues that because there is no ambiguity in the term, “regulated health professionals,” the applicant is entitled to continue offering services to the public when Thunder Bay is in a Grey (Lockdown) or Shutdown zone.

[64] Schedule 1 of the Regulated Health Professionals Act, 1991, S.O. 1991, c. 18 identifies 26 self-regulated health professions, including nursing. The term, “regulated health professionals” is not specifically defined in the ROA.

[65] Ms. Darosa argues that The Ontario College of Nurses has directed that nurses are in the best position to determine what nursing services can be provided during the pandemic.

[66] With respect, this overstates the advice from the Colleges of Nurses, which is a regulatory body. Advice from the College does not supplant the emergency regulatory scheme promulgated in the ROA which provides specific direction to the health units charged with enforcing the scheme.

[67] In fact, the College specifically advises nurses to follow Ministry of Health guidance. Advice from the College’s website on April 1, 2021 cautions nurses to reflect on their practice in view of the restrictions announced by Ontario. For example, in advice titled “Determining the Nursing Services You Can Provide During the Pandemic,” the College states:

Nurses must consider whether any of the services they provide, or that are provided as part of their practice setting need to be temporarily restricted in accordance with the provincial direction. If a nurse provides services in a clinic providing personal care services, they must comply with any restrictions set out by the provincial zone designations. We encourage nurses to refer to the provincial legislation, regulations, and guidance for additional information.

[68] I do not agree that Ms. Darosa is exempt from the business closure regulations because she is a regulated health professional. The term must be considered in its context. A literal application of that term would not give effect to the primary purpose of the statute, which is to contain the spread of COVID-19 in a modern economy.

[69] Applying Ms. Darosa’s literal interpretation, she would also, as a regulated health professional, be entitled to operate a restaurant with dine-in services under the shutdown scheme, simply because she enjoys the status of a regulated health professional. Clearly, this was not intended by the Lieutenant Governor in Council.

[70] A literal interpretation of the regulations would open the door to mischief the ROA seeks to prevent. The real question is not who delivers the services, but what do the services consist of? It would defeat the purpose of containing infection, the harm sought to be prevented, to have a regulated health professional deliver a prohibited service and be exempt from closure.

[71] Two principles of statutory interpretation are helpful in this case: the rule of associated words and the implied exclusion rule.

Associated Words

[72] Is the applicant a health care service or does it provide personal care?

[73] In Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76, paras. 40 - 41, the Supreme Court discussed the principle of statutory interpretation known as “associated words.” At paras. 40 and 41 of Opitz, the court commented:

[40] …The rule states that a term or an expression should not be interpreted without taking the surrounding terms into account. “The meaning of a term is revealed by its association with other terms: it is known by its associates.” [citation omitted].

[41] Professor Sullivan defines the “associated words” rule as follows:

The associated words rule is properly invoked when two or more terms linked by “and” or “or” serve an analogous grammatical and logical function within a provision. This parallelism invites the reader to look for a common feature among the terms. This feature is then relied on to resolve ambiguity or limit the scope of the terms. Often the terms are restricted to the scope of their broadest common denominator.

[74] The applicant submits that “health care” is defined in the on-line Merriam-Webster dictionary as “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals…”

[75] Organizations delivering health care are not exhaustively defined in O. Reg. 82/20. However, examples are listed at s. 52 of Schedule 7: retirement homes, hospitals, clinics, long-term care facilities, independent health facilities, and mental health and addictions counselling supports.

[76] Does the applicant share common features with any of these enumerated services? Put another way, are the applicant’s services provided by other enumerated organizations?

[77] The applicant does not purport to deliver counselling services. Nor is it like a retirement home or long-term care facility where elderly or disabled residents live at the facility and receive food, medical care and life supports as required, often for chronic conditions. There is no evidence that the applicant provides services to residents of retirement homes or long-term care facilities.

[78] The applicant is not like a hospital, where acute or longer-term care is delivered under the auspices of the provincial health system that funds the services delivered. There is no evidence that hospitals provide the type of medical cosmetic care listed in the applicant’s record.

[79] The applicant seeks a declaration that it is a clinic. The term, “clinic” appears in its name. Does the applicant provide services typical of a clinic?

[80] The applicant adopts the following definitions of “clinic” from the on-line Merriam-Webster Dictionary:

A facility (as of a hospital) for diagnosis and treatment of outpatients; a group practice in which several physicians work cooperatively.

[81] There is no evidence in this case that several physicians work cooperatively to diagnose and treat outpatients. Nor does the evidence show that the applicant is akin to a hospital.

[82] The features that characterize the delivery of health-care services are missing. Firstly, there is no evidence that the services provided maintain or restore physical or emotion health, such that there is some medical necessity for service delivery. There is no evidence that the applicant is involved in disease prevention or cure. The applicant conceded that there is no evidence of harm to patients if the services are not delivered.

[83] The applicant’s services are not supported or regulated by the provincial health care system. There is no evidence that the applicant receives referrals from physicians or other health care providers or that its services are rendered pursuant to a prescription.

[84] Except for Ms. Darosa administering Botox and dermal filler injections, the evidence suggests that services are delivered by personnel who are unlicensed and unregulated. In fact, the applicant’s advertising is aimed at members of the public who may seek appointments for cosmetic services they desire in order to enhance their appearance.

[85] The focus on enhancing appearance is also characteristic of work done in hair salons, barber shops, manicure and pedicure salons, piercing services, tanning salons, spas and tattoo studios enumerated under the regulations for personal care services.

[86] I conclude that the applicant is delivering personal care services relating to the body which are aesthetic in nature and cosmetic in purpose, as contemplated by s. 22.1 of O. Reg. 82/20, Schedule 7.

Implied Exclusion

[87] The second principle of interpretation is the implied exclusion rule.

[88] In University Health Network v. Ontario (Minister of Finance), (2001), 208 D.L.R. (4th) 459, 2001 CanLII 8618 (ON CA), the Court of Appeal considered whether three amalgamated hospitals were entitled to an exemption from payment of retail sales tax when statutes granting the exemptions were repealed and the exemption was not continued in the statute amalgamating the hospitals. In deciding the appeal, the court discussed the implied exclusion rule. At paras. 30 and 31, the court explained:

[30] The second indicator of legislative meaning flows from the principle of implied exclusion. Professor Sullivan explains this principle at p. 168:

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly.

[31] In other words, legislative exclusion can be implied when an express reference is expected but absent. Tax exemptions must be expressly granted by statute and therefore if they are to be granted an express reference is expected. The absence of any express exemptions in the amalgamation statutes suggests that the Legislature did not intend to grant them.

[89] The Attorney General submits that because an express reference to personal care services appears in the Red Zone regulations, but is absent in the Grey (Lockdown) Zone regulations at the time this application began, and is also absent from the Shutdown Zone regulations, the court should conclude that this omission was intended by the Lieutenant Governor in Council.

[90] I agree with this submission.

[91] This omission of personal care services in the Shutdown Zone is consistent with the purpose of the Act and its regulatory scheme, which is to limit business activity that heightens the risk of transmitting the virus, especially as infection rates rise. I conclude that the Lieutenant Governor in Council intended to require personal care services, a high-risk activity, to close during the most serious phase of the pandemic.

Conclusion

[92] For the reasons given, the application is dismissed. If costs are not agreed, any party may apply to the trial coordinator within 30 days of the release of these reasons for an appointment to argue costs, failing which costs will be deemed to be settled. Costs submissions are not to exceed five pages.

“original signed by”

The Hon. Madam Justice H.M. Pierce

Released: June 2, 2021

2021 ONSC 4013

COURT FILE NO.: CV-21-0124-000

DATE: 2021-06-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

North Shore Laser Clinic Inc.

Applicant

• and -

Attorney General of Ontario, Thunder Bay District Health Unit, Intervenor

Respondents

REASONS ON APPLICATION

Pierce J.

Released: June 2, 2021

/lvp