Court of Appeal for Ontario
Citation: 2017 ONCA 484 Date: June 13, 2017 Docket: C62904
Judges: Weiler, van Rensburg and Huscroft JJ.A.
Between
232169 Ontario Inc. O/A Farouz Sheesha Café, 7923406 Canada Inc., Club Layal El Sharke Inc., Oum Kulthoum, and Nile Palace Cafe
Applicants (Appellants)
and
The City of Toronto
Respondent (Respondent in Appeal)
Counsel
Ryan P. Zigler, for the appellants
Kirsten Franz and Leslie Mendelson, for the respondents
Heard: June 6, 2017
On appeal from the judgment of Justice R. F. Goldstein of the Superior Court of Justice, dated October 7, 2016.
Reasons for Decision
A. Overview
[1] The appellants operate hookah lounges in Toronto. Hookah lounges offer beverages and food for sale, but are known primarily as places to socialize or relax, and smoke hookahs, a form of water pipe. Hookah lounges charge for the use of hookahs and sell shisha, a legal substance that is smoked.
[2] In 2015, the City of Toronto passed By-Law 1331-2015. The by-law prohibits the use of hookah devices in connection with premises, vehicles, or things required to be licensed by the City for various purposes. In particular, the by-law prohibits the inhaling or exhaling of smoke from a hookah, as well as the holding of an activated hookah.
[3] The appellants brought an application challenging the validity of the by-law. The application judge found as follows:
the purpose of the by-law is to deal with public health and safety, and that this purpose was specifically authorized by the City of Toronto Act, 2006, S.O. 2006, c. 11;
a broad and purposive approach should be taken to municipal powers;
although the City concedes that some hookah lounge operators may go out of business as a result of the by-law, the by-law does not have a confiscatory effect;
the City has the authority to prohibit a business in any event;
the by-law does not conflict with or frustrate the operation of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"); and
the City did not act in bad faith.
[4] The application judge held that the City had the authority to pass the by-law and that the by-law was valid.
[5] The appellants appeal from the judgment dismissing their application. The City agreed to suspend the operation of the by-law pending the outcome of this appeal.
[6] For the reasons that follow, the appeal is dismissed.
B. Issues on Appeal
[7] The appellants raise three grounds on appeal.
[8] First, they submit that the application judge erred in determining that the purpose of the by-law was the protection of health. They characterize the purpose of the by-law as the prohibition of hookah lounges, a purpose they say is beyond the City's legislative competence.
[9] Second, the appellants submit that regardless of the purpose of the by-law, it infringes on their property and civil rights to an extent not permitted by the City of Toronto Act or the common law.
[10] Third, the appellants submit that the application judge erred in concluding that the by-law does not conflict with or frustrate the purpose of the OHSA.
[11] We address each of these issues in turn.
(1) The Purpose of the By-Law
[12] The appellants submit that the purpose of the by-law must be determined having regard not only to its apparent purpose, but also its effect. They characterize health and safety concerns as the motive for the by-law, but submit that the effect of the by-law is the closure of many, if not most of the appellants' businesses, and that this is determinative of the by-law's purpose.
[13] The appellants do not submit that the City's stated purpose – the protection of health and safety – is somehow colourable, but say that the primary effect of the law will be the closing of hookah lounges, and that this overwhelms the City's health and safety motive when characterizing the purpose of the by-law.
[14] This argument must be rejected.
[15] As the application judge noted, the appellants are licensed by the City to sell food and may continue to do so. Indeed, they may continue to sell shisha. What they cannot do is to permit the smoking of hookah pipes on their business premises. There is no doubt that many hookah lounges will suffer economic harm as a result of the by-law and may no longer be economically viable, but it does not follow that this is the by-law's purpose. The protection of public health and safety necessarily has economic impact on the operation of the appellants' businesses, but that impact is incidental to, rather than determinative of, the purpose of the by-law.
[16] The application judge reviewed the background to the passage of the by-law, including the evidence of the City's Medical Officer of Health, who reported to the City Council that hookah smoke was a health hazard to staff and patrons of establishments where it was smoked – regardless of what was smoked in the hookah. He noted that hookah smoking included some of the same carcinogenic chemicals associated with tobacco, and yet many wrongly assumed that hookah smoking was less harmful than smoking tobacco. The Medical Officer prepared a comprehensive report for the Board of Health that reviewed legislative responses from other jurisdictions in Canada and abroad, and recommended that hookah smoking in businesses licensed by the City be prohibited.
[17] In short, there was ample support in the record for the application judge's conclusion that the purpose of the by-law was the protection of public health and safety, a purpose specifically authorized by s. 8(2) of the City of Toronto Act.
[18] That is sufficient to dispose of this ground of appeal. It is not necessary to determine whether the City has the broader power to prohibit the operation of a business.
(2) Does the By-Law Infringe Property and Civil Rights?
[19] The appellants submit that the City's by-law making power has to be given a limited reading in order to minimally impair their common law property rights. The appellants describe the legislation as in effect targeting and destroying their business property without compensation, a result that should be avoided in the absence of clear language in the Act or proof that the prohibition was necessary or essential to achieve the health and safety purpose.
[20] We disagree.
[21] The City of Toronto Act establishes broad by-law making authority. It is not to be given the narrow construction advocated by the appellants: Toronto Livery Association v. Toronto (City), 2009 ONCA 535, 253 O.A.C. 56, at paras. 29-30.
[22] There is no basis to impugn the application judge's finding that the by-law was not confiscatory in any event. This is not a case in which the City has taken something from the appellants, nor is the by-law tantamount to an expropriation. The by-law regulates business establishments otherwise licensed by the City. In no sense can the by-law be said to confiscate the appellants' property.
(3) Does the By-Law Conflict with or Frustrate the Occupational Health and Safety Act?
[23] There is no merit to the appellants' submission that the by-law conflicts with or frustrates the purpose of the OHSA.
[24] The by-law protects the health and safety of patrons as well as employees of businesses. It does not render compliance with the OHSA impossible, or even more difficult. On the contrary, the by-law is complementary to both the purpose and the provisions of the OHSA. Contrary to the appellants' submission, the OHSA does not require the City to adopt measures short of a prohibition on hookah smoking in order to protect employment in hookah lounges.
C. Conclusion
[25] The application judge was alive to the hardship the passage of the by-law may occasion for the appellants. However, he recognized that it was not the court's role to second-guess policy decisions made by elected municipal officials. The City of Toronto Act specifically immunizes by-laws against judicial review for reasonableness: s. 213. The application judge was limited to determining the legal validity of the city's by-law, and he made no errors doing so.
[26] The appeal is dismissed.
[27] By agreement of the parties, each side will bear its own costs.
"K.M. Weiler J.A."
"K. van Rensburg J.A."
"Grant Huscroft J.A."
