Horton v. City of Greater Sudbury
[Indexed as Horton v. Sudbury (City)]
70 O.R. (3d) 768
[2004] O.J. No. 1857
Docket No. C40601
Court of Appeal for Ontario
Labrosse, Laskin, and Goudge JJ.A.
May 6, 2004
Municipal law -- By-laws -- Validity -- Statutory authority -- Ultra vires -- Interpretation -- By-law regulating smoking in public places and workplaces -- By-law requiring employers to adopt and to implement non-smoking policy that prohibits smoking in workplace -- By-law valid -- By-law authorized by enabling legislation -- Municipal Act, R.S.O. 1990, c. M.45, s. 213.
Pursuant to s. 213(2) of the Municipal Act, which authorizes a municipality to pass by-laws prohibiting smoking in public places and workplaces, the City of Greater Sudbury passed a "Smoke Free Public Places and Workplaces By-law". The by-law required employers to "adopt and implement a non-smoking policy in their workplaces" and to take steps to enforce the policy, including posting it in their workplaces. DH, the owner of a pub and restaurant, contended that the by-law could not compel him to adopt a written policy. On an application by him to have the by-law quashed, Kozak J. held that the by-law was authorized by s. 213(2) of the Municipal Act. DH appealed.
Held, the appeal should be dismissed.
While DH was correct in asserting that the Municipal Act does not expressly authorize municipalities to require an employer to adopt and implement a non-smoking policy in the workplace, under the modern view of municipal authority, municipalities exercise both express powers and necessarily or fairly implied powers. It could fairly be said that s. 213(2) of the Municipal Act impliedly authorizes the City of Greater Sudbury to require employers to adopt and implement a non-smoking policy. This conclusion was driven by the legitimate purpose of the by-law, a deferential approach to judicial review of municipal by-laws, and the trivial burden the challenged provisions imposed on employers. The express power in s. 213(2) to prohibit smoking in workplaces carried with it the implied power to require employers to adopt and implement a non-smoking policy, put the policy in writing and post the policy in their workplaces so that employees and patrons alike will know the ground rules for smoking. Accordingly, the appeal should be dismissed.
APPEAL from a judgment of Kozak J. (2003), 66 O.R. (3d) 359, [2003] O.J. No. 3190 (S.C.J.) dismissing an application to quash a municipal by-law regulating smoking in public places and work places.
Cases referred to
114957 Canada Ltée (Spraytech, société d'arossage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, 200 D.L.R. (4th) 419, 171 N.R. 201, 19 M.P.L.R. (3d) 1, 2001 SCC 40; Cambridge Bingo Centre Inc. v. Waterloo (Regional Municipality), [2000] O.J. No. 2985, 14 M.P.L.R. (3d) 179 (S.C.J.); Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, [2000] S.C.J. No. 64, 83 B.C.L.R. (3d) 207, 193 D.L.R. (4th) 385, 263 N.R. 1, [2001] 3 W.W.R. 1, 15 M.P.L.R. (3d) 1, [2000] SCC 64, affg (1998), 58 B.C.L.R. (3d) 390, 165 D.L.R. (4th) 577, [1999] 7 W.W.R. 265, 1 M.P.L.R. (3d) 58 (C.A.); Pub and Bar Coalition of Ontario v. Ottawa (City), [2002] O.J. No. 2240 (C.A.), affg [2001] O.J. No. 3496, 23 M.P.L.R. (3d) 42 (S.C.J.); R. v. Ample Annie's Itty Bitty Roadhouse, [2001] O.J. No. 5968 (C.J.); R. v. Sharma, [1993] 1 S.C.R. 650, [1993] S.C.J. No. 18, 100 D.L.R. (4th) 167, 149 N.R. 169, 79 C.C.C. (3d) 142, 19 C.R. (4th) 329, 14 M.P.L.R. (2d) 35; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15, 88 B.C.L.R. (2d) 145, 110 D.L.R. (4th) 1, 163 N.R. 81, [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1, revg (1991), 57 B.C.L.R. (2d) 345, 81 D.L.R. (4th) 353, [1991] 6 W.W.R. 319, 6 M.P.L.R. (2d) 109 (C.A.), supp. reasons (1991), 58 B.C.L.R. (2d) 285, 84 D.L.R. (4th) 157, [1991] 6 W.W.R. 325, 6 M.P.L.R. (2d) 116 (C.A.), revg (1990), 46 B.C.L.R. (2d) 346, 70 D.L.R. (4th) 374, 49 M.P.L.R. 185 (S.C.); Thirsty's Bar and Grill v. Waterloo (Regional Municipality), [2000] O.J. No. 2986, 14 M.P.L.R. (3d) 207 (S.C.J.); Toronto (City) v. Goldlist Properties Inc. (2003), 67 O.R. (3d) 441, [2003] O.J. No. 3931, 232 D.L.R. (4th) 298, 44 M.P.L.R. (3d) 1 (C.A.), affg (2002), 58 O.R. (3d) 232, 26 M.P.L.R. (3d) 25 (Div. Ct.)
Statutes referred to
Municipal Act, R.S.O. 1990, c. M.45, s. 213
T. Michael Hennessy, for appellant. Stephen Vrbanac, for respondent.
The judgment of the court was delivered by
LASKIN J.A.: --
A. Introduction
1Section 213(2) of the Municipal Act [see Note 1 at end of the document] authorizes municipalities to pass by-laws prohibiting smoking in public places and workplaces. In November 2002, the City of Greater Sudbury passed a "Smoke Free Public Places and Workplaces By-law". This by-law requires employers to "adopt and implement a non-smoking policy" in their workplaces. David Horton, the owner of a local pub and restaurant, challenged the by-law. He acknowledged that the City can prohibit smoking in his workplace, but he contends that it cannot compel him to adopt a written policy. The application judge, Kozak J., held that the challenged provisions of the by-law were authorized by ss. 213(2) and (3)(g) of the Municipal Act. Mr. Horton appeals. For the brief reasons that follow, I would dismiss his appeal.
B. Statutory Scheme
2In 1994, in response to widespread concern about the health hazards of "second hand smoke", the Ontario Legislature amended the Municipal Act to permit municipalities to pass by-laws regulating and prohibiting smoking in public places and workplaces (S.O. 1994, c. 10, s. 21(2)). The enabling provision, s. 213(2), states:
The council of a local municipality may pass a by-law regulating the smoking of tobacco in public places and workplaces within the municipality and designating public places or workplaces or classes or parts of such places as places in which smoking tobacco or holding lighted tobacco is prohibited.
3Section 213(3) of the Municipal Act delineates the scope of a municipality's authority:
A by-law made under subsection (2) may,
(a) define "public place" for the purposes of the by-law;
(b) require a person who owns or occupies a place designated in the by-law to post signs referring to the prohibition or to such other information relating to smoking as is required by the by-law;
(c) prescribe the form and content of signs referred to in clause (b) and the place and manner in which the signs shall be posted;
(d) permit persons who own or occupy a place designated in the by-law to set aside an area that meets criteria prescribed by the by-law for smoking within the place;
(e) prescribe the criteria applicable to smoking areas in clause (d), including the standards for the ventilation of such areas;
(f) require areas set aside for smoking in places designated by the by-law to be identified as an area where smoking is permitted; and
(g) require the employer of a workplace or the owner or occupier of a public place to ensure compliance with the by-law.
4Sudbury's smoking by-law came into effect on May 31, 2003. Part II of the by-law addresses smoking in the workplace. Sections 7 and 8 set out general prohibitions:
When a non-smoking policy has been adopted for a workplace, no person shall smoke in the workplace.
When a non-smoking policy has been adopted for a workplace, no employer shall permit smoking in the workplace.
5The challenged provisions of the by-law are ss. 9(1) and 10, which require employers to "adopt and implement a non-smoking policy" before May 31, 2003, and to take steps to enforce the policy, including posting it in their workplaces. These sections state:
9(1) Every employer shall, on or before May 31, 2003, adopt and implement a non-smoking policy that prohibits smoking in respect of each workplace in the City of Greater Sudbury under the control, supervision or ownership of the employer.
- Every employer required by this By-law to adopt and implement a non-smoking policy shall:
(a) ensure compliance with this By-law;
(b) inform all of the employees that smoking is prohibited in the workplace except as provided by this By-law;
(c) prohibit smoking in the workplace except as provided in this By-law;
(d) post and keep continuously displayed a copy of the non-smoking policy in a prominent place(s) accessible to all employees in the workplace;
(e) prohibit ashtrays and like paraphernalia in areas where smoking is prohibited; and
(f) conspicuously post no smoking signs in areas where smoking is prohibited, in accordance with Part III of this By-law.
6Under s. 19 of the by-law, an employer who permits smoking in the workplace contrary to s. 7 is guilty of an offence. Under s. 20 of the by-law, an employer who refuses or fails to perform the duties imposed by the by-law is also guilty of an offence.
C. Discussion
7After the amendment to the Municipal Act came into effect many Ontario municipalities passed smoking by-laws. Local employers, perceiving that their businesses would be adversely affected, challenged the validity of several of these by-laws. Mr. Horton's lawsuit against Sudbury's by-law is the latest of these challenges. To date, these lawsuits have failed: see Cambridge Bingo Centre Inc. v. Waterloo (Regional Municipality), [2000] O.J. No. 2985, 14 M.P.L.R. (3d) 179 (S.C.J.), challenging Waterloo's smoking by-law; Thirsty's Bar and Grill v. Waterloo (Regional Municipality), [2000] O.J. No. 2986, 14 M.P.L.R. (3d) 207 (S.C.J.), seeking an injunction to prevent Waterloo from enforcing its smoking by-law based on bad faith in engaging and enforcing the by-law; Pub and Bar Coalition of Ontario v. Ottawa (City), [2001] O.J. No. 3496, 23 M.P.L.R. (3d) 42 (S.C.J.), affd, [2002] O.J. No. 2240 (C.A.), challenging the City of Ottawa's two smoking by-laws; and R. v. Ample Annie's Itty Bitty Roadhouse, [2001] O.J. No. 5968 (C.J.), challenging the City of Guelph's smoking by-law.
8Mr. Horton submits that the Municipal Act does not authorize Sudbury to compel him to "adopt" a non-smoking policy. He contends that the word "adopt" requires him to embrace the City's policy as his own. He does not want to do so and says he cannot be forced to do so without appropriate language in the Act, which he claims is lacking.
9The application judge concluded that the requirement to adopt a non-smoking policy is "on a broad, liberal and benevolent interpretation of the enabling legislation . . . specifically authorized" by s. 213(3)(g) of the Act. Under this subsection a smoking by-law may "require the employer of a workplace . . . to ensure compliance with the by-law". The application judge explained his conclusion, at para. 30 of his reasons:
Accordingly Section 213(3)(g) imposes upon employers the positive duty to ensure compliance. A benevolent construction of this provision leads to the reasonable conclusion that in considering the section as a whole, that ensuring compliance equates with the requirement that the employer adopt the City's smoke free policy. Relating the by-law to the plan or scheme as depicted in the enabling legislation, it can be seen that the by-law fits within the parameters of the enabling act.
10I take a different view. It seems to me that adopting a policy is not the same thing as ensuring compliance with it. The one precedes the other. Thus, I agree with the appellant to this extent: the Municipal Act does not "specifically" or expressly authorize municipalities to require an employer to adopt and implement a non-smoking policy in the workplace.
11However, under the modern view of municipal authority, municipalities now exercise both express powers and necessarily or fairly implied powers. Iacobucci J. stated this principle in R. v. Sharma, [1993] 1 S.C.R. 650, [1993] S.C.J. No. 18, at p. 668 S.C.R., para. 25:
[A]s statutory bodies, municipalities "may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation" [citation omitted].
12Since Sharma, the Supreme Court of Canada has affirmed this principle on numerous occasions: see, for example, Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15; Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, [2000] S.C.J. No. 64; and 114957 Canada Ltée (Spraytech, société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42.
13To support its by-law, Sudbury must look to s. 213(2) of the Municipal Act, the provision that authorizes municipalities to pass by-laws regulating and prohibiting smoking in the workplace. Applying Sharma, I would frame the question on this appeal as follows: can it fairly be said that s. 213(2) of the Municipal Act impliedly authorizes the City of Greater Sudbury to require employers to adopt and implement a non-smoking policy? I would answer this question in the affirmative.
14My conclusion is driven largely by three considerations: the legitimate purpose of the by-law, a deferential approach to judicial review of municipal by-laws and the trivial burden the challenged provisions impose on employers.
15The consultation process that led to the passage of Sudbury's smoking by-law shows that it was passed for a legitimate municipal purpose: to protect the health of its citizens from the dangers of second hand smoke.
16By-laws passed for a legitimate municipal purpose should be reviewed deferentially. As this court recently affirmed in Toronto (City) v. Goldlist Properties Inc. (2003), 67 O.R. (3d) 441, [2003] O.J. No. 3931 (C.A.), at para. 57:
[R]ecent jurisprudence . . . has emphasized the importance of enhancing local decision-making and avoiding narrow and technical readings of municipal powers. In 114957 Canada Ltée (Spraytech, Société d'Arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, 200 D.L.R. (4th) 419, at para. 21, the Supreme Court of Canada stated that the courts should accord municipal powers a liberal and benevolent interpretation, and that only in the clearest of cases should a municipal by-law be held to be ultra vires, and approved the dictum of McLachlin J. in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, 110 D.L.R. (4th) 1, at para. 19, "barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold."
17On this view, the requirements of ss. 9(1) and 10 of Sudbury's by-law, that employers adopt and implement a non-smoking policy and post it in their workplaces, do not exceed the City's powers under s. 213(2) of the Municipal Act. Put differently, the express power in s. 213(2) to prohibit smoking in workplaces carries with it the implied power to require employers to adopt and implement a non-smoking policy, put the policy in writing and post the policy in their workplaces so that employees and patrons alike will know the ground rules for smoking.
18Moreover, the burden imposed on employers by ss. 9(1) and 10 of the by-law is hardly onerous. In the context of the by-law, the word "adopt" means no more than "have". In my view, it does not require the employer to write its own policy or to endorse the City's policy or to accept the City's view that prohibiting smoking in the workplace is desirable. Therefore, the challenged provisions of the by-law raise no free speech or civil liberties concerns. This is evident from the City's guide to the by-law circulated when the by-law was passed. The guide includes a "sample non-smoking policy" acceptable to the City. This single page document states simply:
Effective May 31, 2003, a Non-Smoking Policy will prohibit smoking in all interior areas of these premises. There will be no allowance for designated smoking rooms not established in accordance with City of Greater Sudbury By-law 2001-7L.
Changes to the smoking policy are in accordance with the City of Greater Sudbury's Smoke-Free Public Places and Workplaces By-law and are in response to concerns about the health hazards of second-hand smoke. We hope to help reduce the potential smoke-related health problems of our employees by promoting a completely smoke-free work environment.
Significantly, the bottom of the sample policy has these words: "A non-smoking workplace policy as required by City of Greater Sudbury By-law 2002-300."
19This sample policy confirms that no employer is required to write its own policy. The words at the bottom confirm that by adopting and even posting a non-smoking policy, an employer is not endorsing the City's policy, but simply adhering to the By-law.
20For these reasons I would reject the appellant's contention that Sudbury's smoking by-law exceeds the municipality's powers under s. 213(2) of the Municipal Act.
D. Conclusion
21In my view, ss. 9(1) and 10 of the City of Greater Sudbury's Smoke Free Public Places and Workplaces by-law are impliedly authorized by s. 213(2) of the Municipal Act. I would, therefore, dismiss the appeal with costs to the City on a partial indemnity basis in the agreed on amount of $10,000 inclusive of disbursements and GST.
Appeal dismissed.