Ontario (Funeral, Burial and Cremation Services Act, 2002, Registrar) v. 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.)
The Registrar failed to discharge the statutory onus under s.14(1)(d)(iii) to establish reasonable grounds of risk to public health and safety; the Licence Appeal Tribunal's factual findings that there was no evidence the respondent's low temperature alkaline hydrolysis did not destroy prions were entitled to...
Source-derived case information.
- Citation
- 2020 ONCA 771
- Parties
- Appellant: Registrar, Funeral, Burial, and Cremation Services Act, 2002; Respondent: 1868653 Ontario Inc. o/a Newcastle Funeral Home Ltd.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 December 2020
- Procedural Posture
- Appeal (administrative Law) / Court of Appeal Decision on Appeal From Divisional Court
- Outcome
- Appeal dismissed
- Legal Topics
- Standard of Review/deference, Precautionary Principle, Statutory Onus, Tribunal Fact Finding, Licence Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Registrar, Funeral, Burial, and Cremation Services Act, 2002
Appellant
1868653 Ontario Inc. o/a Newcastle Funeral Home Ltd.
Respondent
Procedural Posture
Appeal (administrative Law) / Court of Appeal Decision on Appeal From Divisional Court
Legal Issues
- 1 Whether the Registrar met the statutory test in s.14(1)(d)(iii) of the Funeral, Burial and Cremation Services Act, 2002 by establishing reasonable grounds to believe the respondent's operation was a risk to public health and safety
- 2 Whether the report of Public Health Ontario and evidence of Dr. Copes constituted reasonable grounds to believe there was a public health risk
- 3 Whether the precautionary principle applied
Ratio Decidendi
The Registrar failed to discharge the statutory onus under s.14(1)(d)(iii) to establish reasonable grounds of risk to public health and safety; the Licence Appeal Tribunal's factual findings that there was no evidence the respondent's low temperature alkaline hydrolysis did not destroy prions were entitled to deference, so the precautionary principle did not apply and the Tribunal did not err in not imposing conditions not raised before it.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent in the amount of $30,000 inclusive of disbursements and all applicable taxes
Full Case Text
Judgment text and source record
1 paragraphs
Ontario (Funeral, Burial and Cremation Services Act, 2002, Registrar) v. 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.) Collection Decisions of the Court of Appeal Date 2020-12-03 Neutral citation 2020 ONCA 771 Docket numbers C67943 Judges Strathy, George R.; Rouleau, Paul S.; Coroza, Steve A. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Ontario (Funeral, Burial and Cremation Services Act, 2002, Registrar) v. 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.) 2020 ONCA 771 DATE: 20201203 DOCKET: C67943 Strathy C.J.O., Rouleau and Coroza JJ.A. BETWEEN Registrar, Funeral, Burial, and Cremation Services Act, 2002 Appellant and 1868653 Ontario Inc. o/a Newcastle Funeral Home Ltd. Respondent Bernard C. LeBlanc and Anastasia-Maria Hountalas, for the appellant Nicholas C. Tibollo and Frances Tibollo, for the respondent Heard and released orally: November 26, 2020 by video conference On appeal from the judgment of Justices Katherine E. Swinton, Nancy L. Backhouse and Lise G. Favreau of the Superior Court of Justice, Divisional Court, dated October 22, 2019 with reasons reported at 2019 ONSC 6091. REASONS FOR DECISION [1] The appeal is dismissed, substantially for the reasons of the Divisional Court. [2] The Licence Appeal Tribunal found that the Registrar had not met the test in s. 14(1)(d)(iii) of the Funeral, Burial, and Cremation Services Act, 2002. [3] We do not accept the appellant’s submission that the report of Public Health Ontario and the evidence of Dr. Copes constituted reasonable grounds for belief that there was a risk to public health and safety. While Public Health Ontario did not recommend the respondent’s method, it did so on the basis that further research was required before it could do so. [4] The Tribunal had other evidence before it, as summarized in para. 43 of the Divisional Court’s reasons. The Divisional Court concluded: After considering all the evidence, the Tribunal concluded that “there is no evidence that low temperature AH, as carried out by NCFH, does not destroy prions”. [5] As the Divisional Court observed, deference is owed to the Tribunal’s findings of fact. On this record, the evidence did not discharge the statutory onus on the Registrar. As the Divisional Court found, the onus was on the Registrar to establish reasonable grounds to believe there was a risk to the public health and safety from the respondent’s operation. The onus was not on the respondent to prove that the operation was safe. [6] Having regard to the absence of evidence that the respondent’s operation was a risk to public health and safety, and having regard to the statutory standard applicable to the Registrar’s responsibilities, we agree with the Divisional Court that the Tribunal did not err in finding that the precautionary principle had no application. [7] We also agree with the Divisional Court’s decision that the Tribunal did not err in failing to impose conditions on the respondent’s business. The issue was not raised before the Tribunal, and the Divisional Court’s decision in this regard was not unreasonable. [8] The appeal is dismissed with costs to the respondent in the amount of $30,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “Paul Rouleau J.A.” “S. Coroza J.A.”