решение судьи Группер

[babusyatanya]

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Fraser Health Authority v. Jongerden,
2010 BCSC 355
Date: 20100318
Docket: S-124618
Registry: New Westminster
Between:
Fraser Health Authority
Petitioner
And
Alice Jongerden carrying on business as
Home on the Range, Jane Doe and
John Doe
Respondents
Before: The Honourable Madam Justice Gropper
Reasons for Judgment
Counsel for Petitioner:
G. McDannold
Alice Jongerden, carrying on business as Home on the Range:
Jane Doe and John Doe:
In Person
G. Watson
Place and Date of Hearing:
New Westminster, B.C.
February 1, 2010
Place and Date of Judgment:
New Westminster, B.C.
March 18, 2010
Introduction
[1] Fraser Health Authority, the “petitioner”, seeks a permanent injunction prohibiting the respondent, Alice Jongerden, carrying on business as Home on the Range, from packaging and/or distributing raw milk and/or raw milk products for human consumption.
[2] The respondents oppose the application.
Facts
[3] The petitioner, Fraser Health Authority, is a health authority established under the Health Authorities Act, R.S.B.C. 1996, c. 180, and has the jurisdiction and responsibility for enforcing the Public Health Act, S.B.C. 2008, c. 28 [the Public Health Act] and its regulations, formerly the Health Act R.S.B.C. 1996, c. 179 and its regulations.
[4] The respondent, Alice Jongerden is a businessperson who carries on a business known as Home on the Range in Chilliwack, British Columbia. The respondents Jane Doe and John Doe are persons who participate in the Home on the Range business with Alice Jongerden. Alice Jongerden packages and distributes raw milk and raw milk products for human consumption under the brand name “Home on the Range” for Jane Doe, John Doe and others.
[5] On July 9, 2008, Alice Jongerden was ordered to cease and desist the distribution of raw milk for human consumption by order of the Public Health Inspector under the provisions of the Health Act. The order was issued pursuant to s. 63 of the Health Act and was a result of an inspection by the Public Health Inspector under s. 61 of the Health Act. The inspector gave the following reason for the order:
On June 16, 2008 during my inspection of Home on the Range, I observed that you were packaging and distributing raw milk in violation of the Health Act, Health Hazard Regulation - B.C. Reg. 181/88.
The order required that Alice Jongerden take the following action:
‘cease and desist the distribution of raw milk for human consumption’.

[6] Alice Jongerden did not appeal the July 9, 2008 order. Third parties have appealed the order but have not proceeded with the hearing of the appeal on its merits.
[7] On December 18, 2009, the Public Health Inspector conducted a further inspection of Alice Jongerden’s business operations in Chilliwack and concluded that, contrary to the order of July 9, 2008, and contrary to the Public Health Act, s. 15 and the Public Health Act Transitional Regulation, B.C. Reg. 51/2009, s. 7 [the Transitional Regulation], Alice Jongerden was supervising and directing the packaging of raw milk for distribution for human consumption under the brand name “Home on the Range”.
Legislation
[8] The relevant statutory provisions are:
Public Health Act
Must not cause health hazard
15 A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.
Injunctions
48(1) Without notice to any person, a health officer may apply, in the manner set out in the regulations, to a judge of the Supreme Court for an order under this section.
(2) A judge of the Supreme Court may grant an injunction restraining a person from contravening, or requiring a person to comply, with
(a) a provision of this Act or a regulation made under it, or
(b) a term or condition of the person's licence or permit issued under this Act, or an order made under this Act,
if satisfied by evidence on oath or affirmation that there has been or will be a contravention of this Act, the regulations, the licence, the permit or the order.
(3) A judge of the Supreme Court may order a person to do or refrain from doing those things the judge considers necessary if satisfied by evidence on oath or affirmation that the person is interfering with or obstructing, or will likely interfere with or obstruct, a person who is exercising powers or performing duties under this Act.

(4) A judge of the Supreme Court may grant an interim injunction or order until the outcome of an application commenced under this section.
Public Health Act Inspections and Orders Regulation, B.C. Reg. 52/2009
Applications to court
5(1) An application to court may be made by submitting information on oath in the following form:
(a) for a warrant under section 47 of the Act, Form 2 of the Schedule;
(b) for an order described in section 49 (3) or (4) [protect public health] of the Act, Form 3 of the Schedule.
(2) An application for a warrant under section 47 of the Act may be made
(a) in person, or
(b) if the health officer making the application believes it would be impracticable to appear in person, by telephone or other means of telecommunication.
(3) A warrant may be issued in the following form:
(a) for a warrant under section 47 of the Act, Form 4 of the Schedule;
(b) for a warrant under section 49 (4) of the Act, Form 5 of the Schedule;
(c) for a warrant under section 50 (4) of the Act, Form 6 of the Schedule.
(4) An application to court for
(a) an injunction under section 48 of the Act, or
(b) an order described in section 50 (3) or (4) [protect personal health] of the Act
may be made by filing an application in accordance with the Rules of Court.
Public Health Act Transitional Regulation
Interpretation
1(1) In this regulation, “Act” means the Public Health Act.
(2) A reference in a regulation made under the Health Act to
(a) the Health Act is to be read as a reference to the Act, and
(b) a public health inspector or a sanitary inspector is to be read as a reference to an environmental health officer.
Health Hazard Regulation (unpasteurized milk)
7 Milk for human consumption that has not been pasteurized at a licensed dairy plant in accordance with the Milk Industry Act is prescribed as a health hazard.

Position of the Parties
Petitioner
[9] The petitioner relies on s. 7 of the Transitional Regulation which deems raw milk to be health hazard. Ms. Jongerden does not dispute her involvement in the distribution of raw milk and raw milk products. Therefore, pursuant to s. 15 of the Public Health Act, Ms. Jongerden is willingly causing a health hazard or acting in a manner that she knows or ought to know will cause a health hazard.
[10] Section 48 of the Act provides that an injunction may be ordered when there is a contravention of the Public Health Act or its regulations. This leads to the inevitable conclusion that Ms. Jongerden, carrying on business as Home on the Range, is in contravention of the Public Health Act and its regulations. The petitioner is seeking a statutory injunction based upon that breach.
[11] The petitioner relies on three decisions of the BC Court of Appeal regarding statutory injunctions: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 54 B.C.L.R. (3d) 155, 162 D.L.R. (4th) 203 (C.A.) [Maple Ridge cited to B.C.L.R.]; Langley (Township) v. Wood, 1999 BCCA 260, 67 B.C.L.R. (3d) 97; and Regional District of East Kootenay v. Lloyd Hegland et al., [1981] B.C.J. No. 580 (C.A.) [East Kootenay], which stand for the principle that where legislation is enacted in the public interest, as s. 15 of the Public Health Act and s. 7 of Transitional Regulation are, and a breach is established, a statutory injunction should be granted.
Respondents
[12] The respondents assert that they have established a “cow share” where the registered members of Home on the Range, along with Ms. Jongerden, own shares of the cows which she cares for on her farm. The raw milk and raw milk products are only available to members of the cow share. The packaging is specifically marked “not for sale” in order that the public understand that the raw milk and raw milk products are available only to those who are members of the cow share. Members of the cow share want to enjoy raw milk which they see as “real milk” before it is adulterated or changed.

[13] The respondents rely on R. v. Schmidt, 2010 ONCJ 9, [2010] O.J. No. 223 [Schmidt]. The respondents assert that the BC Supreme Court should consider the Schmidt decision and take into account that Ms. Jongerden’s business is also a private enterprise.
[14] The respondents assert that the petitioner has not established that milk is a health hazard. In order to do so, samples must be taken and tested to demonstrate that the raw milk has created a health hazard.
[15] Several respondents made submissions that raw milk is a medical necessity and that raw milk is basic sustenance. They assert that if raw milk is a health hazard, than so is breast milk. They further argue that access to raw milk and raw milk products is a basic human right and therefore they have a right to choose to consume raw milk and raw milk products.
Analysis
[16] The respondents rely on Schmidt. In that case, the defendant, Michael Schmidt, a dairy farmer, was charged with 14 counts of possessing, distributing or selling milk and milk products which were not pasteurized or sterilized; two counts of operating a plant or distributing fluid milk products without a license under the Milk Act, R.S.O. 1990, c. M.12, and three counts of failing to obey a public health inspector’s order under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 [HPPA] by storing and displaying unpasteurized milk and milk products. He was acquitted of all charges.
[17] Like the respondents in this case, Mr. Schmidt formed a cow share. The milk and milk products were provided for a fee only to people who were registered shareholders in the cow share program. The cow share members had membership cards and were fully aware that they were receiving raw milk. No one could receive raw milk or raw milk products unless they were members. If someone wished to become a member, Mr. Schmidt tried to establish whether that person was serious and, if they were, he would give the interested person a product to try in advance.

Mr. Schmidt did not sell raw milk to the public. Mr. Schmidt argued that he provided a service for the members of the cow share which included feeding, cleaning and housing the cows, along with bottling, cooling, milk separating and cheese making.
[18] Kowarsky J.P. considered the purpose of the Milk Act and stated at paras. 114-115:
[114] Succinctly put, the scheme of the Act essentially embodies a process for the control of the production and marketing of milk and milk products in the Province of Ontario. In relation to the prosecution of people who are alleged to have contravened any of the provisions of the Act, I refer to section 25 of the Milk Act, which states under the heading "Rebuttable Presumption" as follows:
In any prosecution for an offence under this Act, the act or omission of an act, in respect of which the prosecution was instituted, shall be deemed to relate to the marketing within Ontario
[115] I find that the presumption in section 25 clearly places the onus on the defendant in this case to rebut that presumption by proving to the court, on a balance of probabilities, that the cow share program as it was established and is being run by him, does not constitute "marketing within Ontario" as set out in section 25. of milk, cream or cheese, or any combination thereof, unless the contrary is proven". (Underlining for emphasis).
[19] At paragraph 119 of the decision, the Justice of the Peace concluded that Mr. Schmidt had rebutted the presumption set out in s. 25 of the Milk Act for the following reasons:
a) The stated purposes of the Act envisage the control of milk production for marketing and commercial purposes in Ontario, but Purpose is not inherently more important than other contextual factors, and cannot be relied on to justify adopting an implausible interpretation; (4th Edition at page 261)
b) The specific inclusion at the end of the definition of "marketing" of "commercialisation", "commercialiser", "commercialisй" makes it plain and obvious that commercial marketing in its broadest sense is what is meant by the term "marketing";
c) Utilizing the Latin interpretive guide: inclusio unius est exclusio alterius it seems apparent that the specific inclusion of those terms in the definition was to clarify that the term "marketing" as used by the Legislature means commercial marketing within the general public, and excludes a small group of people who have come together by private agreement, such as the cow share program established by the defendant, for the purpose of obtaining raw milk products from him, by buying shared ownership in his cows for the duration of the milking life of the cows;

d) Marketing implies advertising and offering products for sale to the general public, who are required simply to pay the requested price for the products; the undisputed evidence of the defendant is that there is no advertising or selling of his products to the general public whatsoever, and that in both the farm store and the blue bus where his milk is stored, there are clearly visible signs indicating:
"Members Only".
e) The definitions of the words "distributor" and "plant" in section 1 of the Act are:
"Distributor" means a person engaged in selling or distributing fluid milk products directly or indirectly to consumers.
"Plant" means a cream transfer station or milk transfer station or premises in which milk or cream or milk products are processed.
[20] Kowarsky J.P. concluded at para. 21 that the Ontario legislation refers to the public at large, it does not include Mr. Schmidt’s dairy operation as it is currently conducted, because sales of his dairy products are absolutely restricted to members of the cow share program. He also found that Mr. Schmidt did not require a license to operate “his dairy product enterprise” as he did, that is, in distributing raw milk products to members of the cow share.
[21] The Justice of the Peace went on to consider the purpose of the HPPA and considered its purposes as described in s. 2:
124. The purpose of the HPPA is set out in section 2 as follows:
a. to provide for the organization and delivery of public health programs and services,
b. the prevention of the spread of disease, and
c. the promotion and protection of the health of the people of Ontario.
[22] On this point, the Justice of Peace considered that because the raw milk and raw milk products were only available to individuals who willingly became members of the cow share, they did not constitute the “public” or the “people of Ontario” per s. 2 of the HPPA and therefore, Mr. Schmidt’s actions did not frustrate the stated purposes of the legislation.
[23] The respondents assert that Schmidt ought to be binding on this court. They say that it stands for the proposition that cow share programs, where raw milk and

raw milk products are available only to members of the cow share, are not embraced by s. 15 of the Public Health Act and s. 7 of the Transitional Regulation.
[24] While the cow share program undertaken by Mr. Schmidt in Ontario is the same or similar to that undertaken by Ms. Jongerden in British Columbia, that is the only similarity to be found. The provisions of the Ontario Milk Act are not similar to the provisions of the B.C. Public Health Act.
[25] There is no provision in British Columbia’s Public Health Act which creates a rebuttable presumption like that contained in s. 25 of the Ontario Milk Act. It is the view of Kowarsky J.P. that Mr. Schmidt had rebutted the presumption that his milk or milk products were related to marketing within Ontario, because his products were only available to members of the cow share. The Transitional Regulation, on the other hand, is quite clear that milk for human consumption which has not been pasteurized at a licensed dairy plant in accordance with the Milk Industry Act, is a health hazard.
[26] The question of whether the milk or milk products are distributed to the public or to members of the cow share is of no relevance in British Columbia. Raw milk is deemed to be a health hazard by regulation, and s. 15 of the Public Health Act “prohibits a person from willingly causing a health hazard”.
[27] Further, the B.C. legislation does not provide the court with the opportunity to consider whether or not raw milk is a health hazard. It does not require that samples of the raw milk be taken or tested or provided to the court. Raw milk is presumed to be a health hazard under s. 7 of the Transitional Regulation.
[28] There is a further significant distinction between the matter before me and that before Kowarsky J.P. Mr. Schmidt was charged under the provisions of the Ontario HPPA and Milk Act and the crown was required to prove the charges beyond a reasonable doubt. The case at bar, however, is a civil matter where the petitioner seeks an injunction in relation to a breach of a statutory provision.

[29] Based on the foregoing, I decline to follow the Schmidt decision of the Ontario Court of Justice, Provincial Offences Court.
[30] The petitioner has established a breach of the legislation. It is in the public interest to have the law followed. In accordance with the cases relied upon by the petitioner where the breach is established, an injunction ought to follow. In Attorney-General v. Harris (1961), 1 Q.B. 74 at 95, referred to in East Kootenay at para. 18, Pearce L.J. observed:
A breach with impunity by one citizen leads to breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it. ]
[31] Likewise, in Maple Ridge, Cumming J.A. noted that, generally speaking, a court should not refuse to grant a statutorily based injunction protecting the public interest on discretionary grounds:
[7] The source for the injunction in the case under appeal is statutory, and not equitable. Factors that might be considered by a court in an application for an equitable injunction will be of limited, if any, application to the grant of a statutorily based injunction. ...
[9] Where an injunction is sought to enforce a public right, the courts will be reluctant to refuse it on discretionary grounds. To the extent that the appellants may suffer hardship from the imposition and enforcement of an injunction, that will not outweigh the public interest in having the law obeyed. See Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.); aff’d [1992] 2 W.W.R. 544 (Sask. C.A.)
[32] In Langley (Township) v. Wood, the court expressly referred to the Maple Ridge decision and the decision of the Supreme Court in that matter at para. 17:
The court has no discretion to deny the Township an injunction once a breach is established. In Maple Ridge (District) v. Thornhill Aggregates Ltd. (June 23, 1995), Doc. Vancouver A910317 (B.C.S.C.) [Chambers]), the court said at para. 34:
In my view, there is no defence to the claim of Maple Ridge for an injunction, because the public interest is at stake in the enforcement of a zoning by-law. It is the task of Council, not this court, to determine where the public interest lies. If the public interest is engaged and a permanent injunction is being sought, the court’s only role is to determine whether a defendant has breached the by-law the municipality seeks to enforce.

[33] The cases cited above make it clear that my only role is to determine whether the respondents have breached the legislation. There is no dispute that Ms. Jongerden, doing business as Home on the Range, has breached the Public Health Act and its regulations. It is not my role to excuse the respondents from the application of the law or to grant them the remedy which they seek. The remedy for the respondents is to convince the government to change the legislation.
Conclusion
[34] The injunction sought by the petitioner is granted.
[35] Counsel for the petitioner sought an order that the respondents’ signature on the form of the order be dispensed with given that there was a number of respondents who appeared at the hearing. I will grant that order. The petitioner will provide an enterable copy of the order to the respondents.
“Gropper J.”