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The Florist, Small Pox and Good Faith – The Appellate Decision in Jack v. Cranston, 1928 CanLII 35 (ONCA)

3 minute read

We are not yet at the point where businesses or individuals are actively flouting quarantine orders, but what guidance exists from the Court of Appeal in terms of the discretionary powers available to public health officials to insist that an infected person abide by an order to quarantine? This post looks back in time for some guidance arising from a prior public health emergency.

In Jack v. Cranston, 1928 CanLII 35 (ONCA) the Court of Appeal heard an appeal from a trial decision in relation to a public health official who closed a florist shop for 28 days, with a quarantine order for the florist. The florist sued for damages occasioned by the shutdown of his business.

The florist’s son returned home from school one February morning and was feeling unwell. When examined by his family doctor, it was initially thought that the son was suffering from influenza, but within a few days it was determined that the son had a case of smallpox; public health authorities were notified.

The florist lived with his wife, daughter, and two sons, one of whom was the infirm smallpox sufferer. During the 10 days leading up to the investigation by the public health officials, they had all lived together in the home and freely associated with one another. They had frequented the greenhouse and floral workshop associated with the business. The business and residence were all connected.
The defendant determined that the disease might be carried by the flowers. Efforts were made to keep the flower shop operational, but at a minimum, the florist “had to be immune or had to have been vaccinated within two years or be held for 14 days or wait until the vaccination had taken”, in accordance with the Public Health Act, R.S.O. 1927.

The florist could not demonstrate that he was immune, nor that he had been vaccinated. The public health officials closed his shop and affixed a card outside the door saying there was smallpox within.
At trial the florist alleged the quarantine order was issued negligently and that the business was closed improperly for a period of 28 days. The florist successfully alleged at trial that the quarantine order was actuated by malice.

On appeal, the Court of Appeal determined that evidence of the public health official’s approach to other cases was improperly admitted at trial as evidence of malice. The court said:

The circumstances of these (other) cases may have fully justified the defendant’s action in connection with them; and the fact that he may have allowed a bread-winner in some other case to continue in his calling is not evidence that in the present case he should have permitted the plaintiff to carry on his business.

The Court of Appeal also rejected the trial judge’s conclusion that the closure of the greenhouse was actuated by malice; “there was no evidence to support this finding….in the exercise of the discretionary powers vested in him, the defendant acted in perfect good faith. In causing the (smallpox notice) to be affixed to the plaintiff’s house, he was discharging an imperative and unqualified duty cast upon him by statute”.

While we are not yet at the point of seeing any litigation related to the covid-19 pandemic, inevitably, there will be such litigation. At least as it relates to the broad and sweeping powers reposed in public health officials, this 92-year old decision – decided the year before Lerners opened its doors as a law firm – provides a stark reminder that it is very difficult to successfully challenge the discretionary powers of a public health official who is responding to a public health emergency.

Andrew C. Murray

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