Precautionary Principle Does Not Prevail

What should a regulator do where:

  1. A novel procedure (in this case dealing with the disposition of deceased human bodies) is not being operated safely and ethically at the time of an inspection; and
  2. The procedure has not been established to be safe and has a potential risk associated with it?

In Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 6091, the regulator applied the precautionary principle and proposed to revoke the crematorium operator licence. The Licence Appeal Tribunal declined to revoke the licence.

On appeal, the Court upheld the tribunal’s decision. On the first concern, the Court held that the premises were now operating in accordance with the rules and concerns about future non-compliance were speculative. On the second concern, the Court disposed of the matter on the basis of the regulator carrying the onus proof. The regulator had to provide evidence of risk of harm despite the absence of research on the method of disposition rather than the licensee having to provide evidence of its safety. The precautionary principle did not prevail.

The Registrar is seeking leave to appeal this decision.

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