Retirement Homes Regulatory Authority v. In Touch Retirement Living for Vegetarians/Vegans
New Lessons and Helpful Reminders about Superior Court Compliance Orders
We recently brought an urgent application to enjoin the operation of an unlicensed retirement home in Retirement Homes Regulatory Authority v. In Touch Retirement Living for Vegetarians/Vegans. In granting the injunction and various other orders, Justice Nishikawa reinforced some well-established principles and also touched on some new ones. In this article, we outline some of the key takeaways from this decision.
(1) There is a Unique Test Applicable to Statutory Injunctions
This case involved an application for a statutory injunction. The application was brought pursuant to section 96.1 of the Retirement Homes Act, 2010 (“RHA”), which provides:
The Registrar may apply to the Superior Court of Justice for an order directing a person to comply with a provision of this Act or the regulations or an order made under this Act and, upon the application, the court may make any order that the court thinks fit.
Statutory injunctions are much easier to obtain than an injunction at common law. As quoted by Justice Nishikawa from Justice Perell in College of Physicians and Surgeons of Ontario, 2018 (“CPSO”), where a statutory injunction is sought:
(a) The Court’s discretion is more fettered, and the factors considered by a court when considering equitable relief will have more limited application;
(b) An applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused;
(c) Proof of damages or proof of harm to the public is not an element of the legal test;
(d) There is no need for other enforcement remedies to have been pursued;
(e) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable; and
(f) It remains more difficult to obtain a mandatory injunction.
This case reinforces the established principle that a statutory injunction is much easier to obtain than an injunction at common law. Once a clear breach of the legislation is established, the onus shifts to the offending party to prove exceptional circumstances, which will rarely defeat the application. In practice, this means that regulators with the ability to bring a statutory injunction will generally be successful if they can prove a clear breach of the relevant statutory provisions.
(2) There is no requirement to “sit someone down” before seeking an injunction
There is no requirement to seek alternative enforcement methods before bringing a statutory injunction. Consequently, while regulators often feel compelled to “educate” individuals who are acting in breach of their legislation and/or to seek alternative routes to compliance, this is not required. Justice Nishikawa was unequivocal in noting that “[a] person or entity that conducts business in a regulated field, such as operating a retirement home, must inform themselves about the requirements of the Act and applicable regulations and ensure that they comply.” (para. 56) There is no obligation for a regulator to “sit down” with a non-compliant individual or entity or to take any prior step (e.g., sending a cease and desist letter) before pursuing remedies in Superior Court. That being said, a cease and desist letter or other alternative methods are prudent and may put an end to the offending conduct without the need for litigation.
(3) The Charter does not protect economic interests
The Respondents to this application argued that the RHRA’s application of the RHA violated their section 2(a) and 2(b) rights under the Canadian Charter of Rights and Freedoms (the “Charter”) to free expression and conscience. Justice Nishikawa noted that similar arguments had been rejected in the context of section 7 Charter jurisprudence where the courts have stated unequivocally that the Charter does not protect economic interests such as the right to practice a profession (See, Mussani v. College of Physicians and Surgeons (2004) at paras. 39-43. By analogy, Justice Nishikawa held that the Charter could not protect the economic interest of the Respondents in a manner that would permit them to act contrary to the requirements of the regulatory scheme for the retirement homes industry.
(4) Ancillary Orders are a Welcome Aid for the Enforcement of Injunctions
Section 96.1 of the RHA allows the court to make “any order that the court thinks fit” in addition to a compliance order. From this authority, Justice Nishikawa granted the RHRA numerous ancillary orders including orders transferring residents and other orders that would ensure the Respondents brought themselves into compliance with the law. In support of these orders, Justice Nishikawa adopted the comments of the Ontario Court of Appeal in The Law Society of Upper Canada v. Chiarelli, where the court noted:
 It is preferable that a statutory injunction not simply repeat the language of the statute relied upon. This is for the practical reason that such an injunction may be difficult to enforce by way of a contempt proceeding if the terms of the order are not sufficiently specific and clear: Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Thomson Reuters, 2013), at paras. 3.265, 6.10.
Ancillary orders allow a regulator to outline specific steps for an unlicensed individual to take to comply with the law. Such orders can greatly enhance the effectiveness and enforceability of a compliance order. While the order in this case was not appended to the decision, you may contact us directly if you would like a copy.
Compliance orders are a useful and, perhaps, underutilized tool in the regulatory arsenal. They need not be options of last resort and orders can be sought fairly quickly. A properly drafted order may not only enjoin conduct, but also mandate specific steps that must be taken to ensure compliance with the law is achieved.