The Court upheld the decision of the Health Services Appeal and Review Board which found that the Medical Officer of Health went beyond the scope of his statutory authority under s. 13 of the Ontario Health Protection and Promotion Act in making Orders prohibiting smoking or the holding of lighted tobacco in small and privately owned businesses in the hospitality industry

Administrative law – Decisions of administrative tribunals – Health authorities – Jurisdiction – Judicial review – Compliance with legislation – Standard of review – Correctness

Ontario (Attorney General) v. Ontario (Health Services Appeal and Review Board), [2006] O.J. No. 52, Ontario Superior Court of Justice Divisional Court, January 4, 2006, D.R. Aston, S.E. Greer and K.E. Swinton JJ.

The Attorney General of Ontario applied for judicial review of a decision of the Health Services Appeal and Review Board (the “Board”) which had rescinded Orders made by the Medical Officer of Health (“MOH”) for the Northwestern Health Unit. The Orders prohibited smoking or the holding of lighted tobacco in small, privately owned businesses in the hospitality industry such as hotels, bars, restaurants, and convenience stores. The Board concluded that the MOH went beyond the scope of his statutory authority under s. 13 of the Ontario Health Protection and Promotion Act in making the Orders. The Attorney General sought to have the Board’s decision quashed and the issues remitted to the Board for reconsideration on its merits.

The Court held that the standard of review was that of correctness.

The Court noted that s. 13 of the Act, on its face, gave broad authority to a non-elected official such as the MOH. The definition of a “health hazard” under s. 1 of the Act was also very broad. However, the Court noted that the Orders in this particular case had the same practical effect as legislation. They were not temporary measures, but rather indefinite and presumably permanent prohibitions on an otherwise lawful activity. The Court held that the holder of an office has no inherent power and could only exercise the authority granted by the statute. The statute must contemplate a role subordinate to elected municipal officials. The attempt by the MOH to make general prohibitions throughout the entire region for all public places was excessive and an abuse of the Order making power that he did have. The Court held that the Board’s conclusions that the Orders were too broad and exceeded the MOH’s statutory authority was correct.

The application was therefore dismissed.

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