DATE: 20050519

DOCKET: C42397

COURT OF APPEAL FOR ONTARIO

RE:

HENRY W. FREITAG (Applicant/Appellant) -and- THE CORPORATION OF THE TOWN OF PENETANGUISHENE (Respondent/Respondent in Appeal)

BEFORE:

CATZMAN, LABROSSE and MOLDAVER JJ.A.

COUNSEL:

John J. Winter

for the appellant

Frank N. Grisé

for the respondent

HEARD AND ENDORSED:

May 18, 2005

On appeal from the judgment of Justice Mary J. Hatton of the Superior Court of Justice dated August 20, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] We would dismiss this appeal for the reasons of Hatton J., with which we are in substantial agreement. We would add only that, if the appellant’s interpretation of s. 9(1) ¶ 8 of the Tobacco Control Act is correct, other provisions of that section and of the Act would be redundant, the Province would have failed for the last eleven years to enforce its own legislation, municipalities across the province would have enacted smoking bylaws unnecessarily and/or in contravention of the Act, and it would fly in the face of decisions of this court and of other courts in Ontario that have considered the authority of municipalities to enact such bylaws.

[2] The appeal is dismissed with costs, which we fix in the amount of $3,500.00, inclusive of disbursements and G.S.T.