H.W. Osmond Doyle, LL.B., LL.M.

City Solicitor

Legal Services

100 Queen Street West

14th Floor, West Tower, City Hall

Toronto ON M5H 2N2

Tel: (416) 392-8047

Fax: (416) 392-1017 or 392-0005

September 3, 1998

To:Urban Environment and Development Committee

From:H.W.O. Doyle

City Solicitor

Subject:The Health Protection and Promotion Act and the regulation of Vital Services

Purpose:

To provide assistance to the Committee with respect to the feasibility of relying on the Health Protection and Promotion Act to regulate vital services.

Funding Sources, Financial Implications and Impact Statement:

None.

Recommendation:

That this report be received for information.

Council Reference/Background/History:

At its meeting held on September 8, 1998, the Urban Environment and Development Committee requested the City Solicitor, in consultation with the Commissioner of Urban Planning and Development Services, to submit a report on Recommendation (2) embodied in the report dated August 24, 1998, from the Medical Officer of Health which recommended that the City Solicitor review the feasibility and conditions under which the Health Protection and Promotion Act, (the Act) could be applied in situations involving the discontinuation of vital services.The Committee also requested the City Solicitor to submit a report on the timing implications for tenants who use the provincial Tribunal process for prosecution/enforcement of vital services isssues.

Comments and/or Discussion and/or Justification:

The purpose of the Health Protection and Promotion Act is to "provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario". Mandatory Guidelines published by the Ministry of Health pursuant to the Act establish standards and set out the minimun requirements for fundamental public health programs and services targeted at the prevention of disease, health promotion and health protection. Like the Act, the Guidelines have a community focus. For instance, one of the stated goals of the Health Hazard Investigation standard is "to ensure community health protection and continued public health services delivery in the event of a health hazard".

In her report the Medical Officer of Health stated that "opinions vary as to the feasibility of using the Act to reduce the potential health hazards associated with loss of vital services". The term "health hazard" is defined in the Act as follows:

"health hazard" means,

(a)a condition of a premises,

(b)a substance, thing, plant or animal other than man, or

(c)a solid, liquid, gas or combination of any of them,

that has or that is likely to have an adverse effect on the health of any person"

The Medical Officer of Health has a duty, prescribed by the Act, to inspect or cause the inspection of a health unit under his or her jurisdiction for the purpose of preventing, eliminating and decreasing the effects of health hazards in the health unit. The City of Toronto is designated as a health unit in the regulations made under the Act and is comprised of the geographic area of the former Borough of East York and the Cities of Etobicoke, North York, Scarborough, Toronto and York. If the Medical Officer of Health is of the opinion that a health hazard exists, he or she may issue an Order to decrease the effect of or to eliminate the health hazard. An Order issued under the Act may include such actions as:

(a)requiring the vacating of premises;

(b)requiring the removal of the health hazard;

(c)requiring the doing of work specified in the Order in, on or about the premises specified in the Order; or

(d)requiring the destruction of the matter or thing specified in the Order.

The expenses incurred by a board of health in respect of a health hazard may be recovered by the board by way of court action. Alternatively, the amount owing to the board may be entered in the collector's roll and collected in the same manner as municipal real property taxes. The amount collected shall then be paid over to the board of health.

In 1994 an application was made to the Ontario Divisional Court seeking judicial review of the term "health hazard". In that case the the Court dismissed the application and held that "... the purpose and intent of the Act is to ensure community health protection of the people of Ontario".

As previously advised by the Commissioner, Urban Planning and Development Services, specific provincial legislation has been enacted which clearly enables municipalities to regulate matters relating to municipal maintenance standards and vital services. In the face of express provincial legislation delegating authority to municipalities to regulate these two areas, and looking at the general tendency of the courts, it is unlikely that the City could rely on the health hazard provisions of the Health Protection and Promotion Act as a mechanism to regulate the discontinuation of vital services.

I was also asked to report on the "timing implications for tenants who use the Provincial Tribunal process for prosecution/enforcement of vital services issues". The Ontario Rental Housing Tribunal (the "Tribunal") has provided me with its Scheduling Hearing Standards from its policy manual. This document indicates that there is no fee for a hearing regarding the landlord's having withheld or interferred with the supply of vital services, and that the tribunal hearing should take place approximately 11 days from the date the tenant applies to the tribunal for relief.

Conclusions:

The Province has delegated extensive authority to municipalities to regulate municipal maintenace standards and vital services; however this authority does not exist in the Health Protection and Promotion Act. Therefore it is unlikely that the Act can be used to regulate municipal maintenance standards or vital services. The Health Protection and Promotion Act has, as its focus, community health protection and promotion. Any attempt to rely on the "health hazard" provisions of that Act should be made on a case by case basis after consideration has been given to both the context of the situation and the scope and intent of the Act.

Contact Name:

Jane Speakman

Legal Services

392-1563

H.W.O. Doyle

City Solicitor

Legal Services