B.H. Kussner

The applicants, having lost their initial application to quash a by-law prohibiting water pipe smoking, sought no costs.

The respondent, The Regional Municipality of Peel, sought costs on a substantial or partial indemnity basis.

The court rejected the applicants' submission for no costs, finding their application was not one of first impression and they knew the risks given prior similar cases.

While acknowledging some merit to the respondent's arguments for substantial indemnity due to re-arguing settled matters and one applicant opening a new lounge, the court found the applicants' conduct not egregious enough to warrant elevated costs.

Applying principles of reasonableness under Rule 57.01(1), the court awarded partial indemnity costs, but reduced the amount by $10,000 due to junior counsel's attendance at the hearing not being deemed necessary for the proper presentation of the respondent's case.

The applicants sought a declaration that a by-law banning waterpipes was invalid.

At the outset of submissions, the applicants moved for leave to file a supplementary affidavit after cross-examinations were completed.

The respondents opposed.

The court dismissed the motion, finding that the document attached to the affidavit was not a "public document" under common law or the Evidence Act, and the applicants failed to meet the high threshold under Rule 39.02(2) of the Rules of Civil Procedure.

The evidence was not responsive to matters raised on cross-examination, and no reasonable explanation for the late filing was provided.

The applicants, owners of several waterpipe lounges, sought to quash provisions of a Regional Municipality of Peel by-law prohibiting waterpipe smoking in enclosed public places.

They argued the by-law conflicted with provincial legislation, was enacted in bad faith, and was ultra vires as it effectively prohibited their businesses.

The Superior Court of Justice dismissed the application, finding that the Region had the statutory authority under the Municipal Act, 2001 to enact the by-law for the protection of public health and safety.

The court also found no conflict with the Occupational Health and Safety Act and no evidence of bad faith.