Oct 19, 2020

How should regulators deal with new technologies where the risks of harm are uncertain? One Ontario regulator has had to face this challenging issue. A new form of chemical cremation was adopted by a funeral home. After liquefying the remains, the fluid is released into the municipal waste water system. Studies have shown that a high temperature version of this process neutralizes potential harmful agents. However, studies have not established the safety of a low temperature version of the process. The funeral home in issue used the low temperature version. The regulator suspended the funeral home’s licence. Part of the basis for doing so was to apply the precautionary principle that the public should not be exposed to a potentially fatal risk until the safety of the process was established. The appeal tribunal concluded that the risk of harm was so low that the licence should be reinstated.

The Court restored the interim suspension until an appeal could be heard of the tribunal’s decision. The balance of convenience favoured the protection of the public over the financial implications to the funeral home. See: Registrar, Funeral, Burial and Cremation Services Act, 2019 ONSC 4298, <http://canlii.ca/t/j1hj9>.