Board Orders (HSARB)

Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711 (CanLII)

[2] As part of the local response to the COVID-19 pandemic, Dr. Nesathurai issued an order to employers of migrant farm workers (“MFWs”) in the Haldimand-Norfolk region that required them to take measures to enable MFWs arriving from out-of-county to self-isolate for fourteen days (the “Order”). The Respondent in the present appeal, Schuyler Farms, requested a hearing before the HSARB regarding the appropriateness of the Order’s requirement that no single bunkhouse shelter more than three MFWs during the self-isolation period. The HSARB held that this requirement was arbitrary in that, among other things, it did not account for variations in the size and layout of bunkhouse facilities. On this basis, the HSARB struck this requirement from Dr. Nesathurai’s Order.

Issue 1: Did the HSARB apply the wrong test and too high a standard of proof?

[36] Dr. Nesathurai submits that it was not the Board’s role to decide if the impugned requirement was reasonably necessary; the HSARB’s role is not to stand in the place of the MOH and reconsider the exercise of that judgment; it had to determine whether the MOH had reasonable and probable grounds for finding that the requirement was necessary.

[41] The leading case in the HSARB’s jurisprudence on the standard of proof to be applied is 481799 Ontario Ltd. v. Waterloo Region of Public Health (Waterloo).[33] That decision dealt with a health hazard under s. 13 of the HPPA, which is worded similarly to s. 22(2).[34] Waterloo confirms that the “reasonable and probable grounds” requirement creates a standard of proof that is significantly lower than the civil standard.[35] It held that the purpose of the HPPA helps to inform the question of what is reasonable in the circumstances.[36] It accepts that one purpose of the HPPA, as its name suggests, is the protection of public health. It held that it is sufficient if the grounds are informed by scientific literature and exercised fairly and suitably under the circumstances.[37]