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BYLAWS AND RESOLUTIONS - Statutory authority - Interpretation - Grounds for invalidity - Improper motive

Wednesday, July 26, 2017 @ 9:05 AM  

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Appeal by the owners of several hookah lounges in the City of Toronto (City) from the dismissal of their application challenging the validity of a 2015 bylaw prohibiting the use of hookahs in premises, vehicles or things required to be licensed by the City for various purposes. In particular, the bylaw prohibited the inhaling or exhaling of smoke from a hookah, as well as the holding of an activated hookah. The application judge found that the City had the authority to pass the bylaw and that the bylaw was valid. The judge considered the City’s stated purpose for enacting the bylaw, the protection of health and safety, as valid. The judge accepted that the bylaw was enacted to protect the health and safety of employees and patrons of hookah lounges, given the expert evidence from the City’s Medical Officer that hookah smoke included some of the same carcinogenic chemicals associated with tobacco smoke, while many people wrongly assumed it was less harmful. On appeal, the appellants submitted that the application judge erred in determining that the purpose of the bylaw was the protection of health. They characterized the purpose of the bylaw as the prohibition of hookah lounges, a purpose they asserted was beyond the City's legislative competence. The appellants also submitted that regardless of the purpose of the bylaw, it infringed on their property and civil rights to an extent not permitted by the City of Toronto Act or the common law. Further, the appellants argued that the application judge erred in concluding that the bylaw did not conflict with or frustrate the purpose of the Occupational Health and Safety Act (OHSA).

HELD: Appeal dismissed. The application judge was entitled to accept that the City enacted the bylaw for the purpose of protecting health and safety, rather than for the purpose of closing hookah lounges. The hookah lounge owners were still able to sell food and shisha, a legal substance that was smoked, but could not allow hookah pipes to be used on their premises. The economic impact that the bylaw might have on the owners’ businesses was incidental to, but not determinative of, the purpose of the bylaw. The City of Toronto Act established broad bylaw making authority and the application judge was correct in finding that the bylaw was not confiscatory or tantamount to an expropriation. There was also no merit to the appellants' submission that the bylaw conflicted with or frustrated the purpose of the OHSA. The bylaw protected the health and safety of patrons as well as employees of businesses. The OHSA did not require the City was to adopt measures short of a prohibition on hookah smoking in order to protect employment in hookah lounges.

232169 Ontario Inc. (c.o.b. Farouz Sheesha Café) v. Toronto (City), [2017] O.J. No. 3042, Ontario Court of Appeal, K.M. Weiler, K.M. van Rensburg and G. Huscroft JJ.A., June 13, 2017. Digest No. TLD-July242017008