



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 appellants 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 respondents 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 Courts 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 Tribunals
    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
    respondents 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 respondents operation
    was a risk to public health and safety, and having regard to the statutory
    standard applicable to the Registrars 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 Courts decision that the Tribunal did
    not err in failing to impose conditions on the respondents business. The issue
    was not raised before the Tribunal, and the Divisional Courts 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.


