Court File and Parties

Ticket No.: 4961 999 00 5660157Z-00

Ontario Court of Justice

Between:

Eric Tsui

— and —

The Corporation of the City of Vaughan

Before: Justice of the Peace R. S. Shousterman

Heard: May 23, 2013

Oral ruling given: October 30, 2013

Written reasons released: November 22, 2013

Counsel:

• N. Gerry, for the Applicant
• C. Bendick, for the Respondent

JUSTICE OF THE PEACE R. S. SHOUSTERMAN:

Introduction

[1] This is an application to declare invalid s. 13 of the City of Vaughan By-law 315 – 2005 or in the alternative ss. 13.0(1) h) and 13.4 of the City of Vaughan By-law. The respondent asks that the application be dismissed.

[2] The applicant is the owner and operator of a licensed body rub parlour located within the City of Vaughan. The respondent is the City of Vaughan.

[3] The applicant is charged with permitting a body rub parlour to be open outside permitted times, contrary to s. 13.0(1) h) of the City of Vaughan By-Law 315-2005.

[4] Section 13.0(1) h) of the by-law reads as follows:

(1) Every Body Rub Parlour Owner, Operator and Attendant shall, in carrying on or engaging in the business of a Body Rub Parlour or Body Rubs, comply with the following requirements as set forth:

h) No Body Rub Parlour Owner or Operator may permit a Body Rub Parlour to open or to remain open for business except in compliance with the provisions of section 13.4 respecting "Hours of Operation".

[5] Section 13.4 of the by-law reads as follows:

(1) No Body Rub Parlour shall be open to the public and no Owner or Operator of a Body Rub Parlour may permit services to be provided and no Attendant at a Body Rub Parlour may provide services, except on the following days and between the following hours:

a) Monday to Friday from 9:00 am to 10:00 pm of the same day;

b) Saturday from 9:00 am to 6:00 pm of the same day;

c) Sunday from 10:00 am to 5:00 pm of the same day.

[6] The applicant submits the sections of the by-law regulating hours of operation of a body rub parlour are, in pith and substance, criminal in scope and therefore ultra vires the municipality. The City submits the sections of the by-law are intra vires or, in the alternative, if ultra vires, if one applies the double aspect test the by-law must be upheld.

[7] The history of the by-law before this Court is described in the affidavit of Joseph Chiarelli, Manager of Special Projects, Licensing and Permits for the City of Vaughan and can be summarized as follows:

1. On April 1, 1997, Council directed staff prepare a report on suggested ways of controlling body rub parlours.

2. On June 3, 1997, a report was brought forward for Council's consideration. The report described the provisions in the Municipal Act, R.S.O. 1990 c.M.45, (the "Municipal Act"), relating to the licensing and regulating of body rub parlours. The matter was deferred.

3. On March 2, 1998, Council requested staff undertake a review of body rub parlours and prepare a report respecting the potential implementation of a licensing by-law for body rub parlours.

4. On September 28, 1998, Council requested the report, which had not yet been submitted, contain further provisions including, inter alia, provisions relating to restricting hours of operation of body rub parlours.

The extract of the minutes from the September 28, 1998 Council meeting indicate that the background to the report was to deal with the proliferation of massage parlours in the City. During the course of submissions I questioned why Council was using the term "massage parlours". I was advised by counsel that for unknown reasons, the City used the term "massage parlour" despite the fact that the correct term in the Municipal Act was "body rub parlour". I was further advised by counsel that eventually the City started using the correct terminology.

The report states:

Individuals have expressed that they have found large groups of adult males frequent some establishments mostly in the early morning hours. Should "ladies of the night" be operating in these establishments, the hour of restriction by-law will take the "night away from the ladies of the night" in Vaughan for the massage parlours.

"Ladies of the night" is another word for prostitutes.

5. The City passed By-law 30-99 on January 25, 1999, which provided for the licensing and regulation of body rub parlours.

The City also passed By-law 31-99 at approximately the same time. This by-law designated commercial/industrial areas with low visibility to the general public as areas within the City where body rub parlours could operate. Adult entertainment parlours (strip clubs) and adult video stores are also permitted uses in these areas.

6. On January 15, 2001, the City passed By-law 2-2001. This by-law revised hours of operation for certain businesses, including but not limited to establishments that serve liquor so as to ensure compliance with the Liquor Licence Act and s. 148 of the Municipal Act.

7. On December 12, 2005, the City passed By-law 315-2005 which replaced by-law 2-2001.

The purpose of by-law 315-2005 was for Council to enact a new by-law which conformed with the provisions of s. 150(3) of the Municipal Act, 2001, which states:

A by-law licensing or imposing any condition on any business or class of business passed after this section comes into force shall include an explanation as to the reason why the municipality is licensing it or imposing the conditions and how that reason relates to the purposes under subsection (2).

[8] At the time of the enactment of the by-law, s. 150 of the Municipal Act, 2001 gave a municipality the authority to license, regulate and govern any business wholly or partly carried on within the municipality, s. 150(1).

[9] Other relevant provisions of the Municipal Act, 2001 in existence at the time by-law was enacted are ss. 150(2) and 150(8)(e)(ii) which provided:

150(2)

Except as otherwise provided, a municipality may only exercise its licensing powers under this section, including imposing conditions, for one or more of the following purposes:

1. Health and safety.
2. Nuisance control.
3. Consumer protection.

150(8)

Without limiting subsection (1), the power to license, regulate and govern a business includes the power,

(e) to impose conditions as a requirement of obtaining, continuing to hold or renewing a licence, including conditions,

(ii) restricting the hours of operation of the business…

[10] These provisions of the Municipal Act, 2001 have been repealed.

[11] There is no dispute that the City is entitled to licence and regulate body-rub parlours. The issue is whether the City has, in ss. 13.0(1) h), o) and p), and s. 13.4 attempted to enact a by-law to regulate morality (prostitution) and dress (nudity) and, if so, whether such is ultra vires. As will be noted, broadly put, the regulation of morality and nudity has been held to fall within the criminal law.

Characterization of the By-Law

[12] The distribution of legislative power between the federal parliament and the provincial legislatures is, with certain exceptions, set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 lists the types of subjects which are within the powers of the federal parliament. Section 91(27) gives authority to the federal parliament to legislate over criminal matters. Section 92 lists the types of subjects which are within the powers of the provincial legislatures. These include property and civil rights under s. 92(13), the imposition of punishment by fine, penalty or imprisonment for enforcing any provincial law under s. 92(15) and matters of a merely local or private nature under s. 92(16).

[13] The City is a statutory creation of the provincial legislature and for a City by-law to be valid it must, at a minimum, be within the provincial sphere of power under the Constitution Act, 1867.

[14] The question for this Court to determine is the validity of the impugned sections of the by-law. In order to answer that question, the first step is to determine the "pith and substance" of the impugned sections of the by-law, and the second is to assign the matter to one of the heads of legislative power.

Pith and Substance

[15] The sole purpose of identifying the pith and substance of a law is to determine whether the law is constitutional or not. As part of that the court has to inquire into the law's true nature by asking what is its dominant characteristic i.e. what was the purpose of the legislative body in enacting the law and what is the effect of that law. Only after that analysis is complete can the court look at the legal and practical effects of the law. If no dominant purpose can be ascertained then the double aspect doctrine of judicial restraint may apply to uphold the validity of the provision: R. v Keshane 2012 CarswellAlta 1928 at para 18.

[16] Professor Hogg in Constitutional Law of Canada 3d Ed, 1992 Thomson Canada Limited, describes the double aspect doctrine as acknowledging that "some kind of laws have both a federal and a provincial "matter" and are therefore competent to both the Dominion and the provinces", p. 381.

[17] Section 13 of the by-law describes how a body rub parlour may operate within the City of Vaughan. It describes:

i. The location of a body rub parlour,

ii. Its physical plant,

iii. Advertising,

iv. Cleanliness,

v. Dress of body rub parlour attendants and customers,

vi. Hours of operation,

vii. Who may be hired,

viii. What services may be performed, and

ix. General licensing requirements such as, for example, the requirement to post the licence in a conspicuous place in the body rub parlour.

[18] With the exceptions of dress set out in s. 13.0(1) o) and p), as well as that of hours of operation set out in s. 13.0(1) h) and 13.4, I find that the pith and substance of s. 13 of the by-law is the regulation of a business and therefore it falls within s. 92 of the Constitution Act. I find that the provisions relating to dress as well as hours of operation are, in pith and substance, criminal and therefore ultra vires the municipality. My reasons for so finding are set out in greater detail below.

Dress Requirements

[19] As can be seen from the description of s. 13, the subject matter of dress appears out of context. The by-law pertaining to dress of the body rub parlour attendant does not merely require a uniform that identifies the attendant. Such a regulation might, for example, properly require a tow truck driver to wear a uniform. Sections 13.0(1) o) and p) state:

13.0(1)

o) Every Attendant at a Body Rub Parlour shall be clothed in a manner in which such person's pubic area and buttocks, and in the case of a woman, also her breasts, are completely covered by an opaque material.

p) Every Attendant shall ensure that every customer in a Body Rub Parlour is clothed in a manner in which such person's pubic area and in the case of a woman, also her breasts, are completely covered by an opaque material.

[20] I have reviewed the document entitled "Special Council November 21, 2005 Comprehensive Licensing By-law". That document was prepared for the City to ensure compliance with s. 150(3) of the Municipal Act, 2001. The section relating to body rub parlours and attendants read, in part, as follows:

Consumer Protection: to ensure compliance with all applicable regulations, including but not limited to health requirements and regulations, age restrictions and ensuring attendants are adequately clothed to protect clients from improper exposure, etc.;

[21] At paragraph 15 of his affidavit Mr. Chiarelli states:

One aspect of consumer protection is ensuring attendants are adequately clothed to protect clients from improper exposure: typically attendants perform body rubs in close proximity to the customer. Adequate clothing, namely clothing that covers the pubic area, buttocks, and in the case of a woman, breasts, protects against the spread of communicable diseases.

[22] Communicable diseases spread from one person to another or from an animal to a person; on occasion a communicable disease can spread from an inanimate source upon which non-dormant bacteria can remain but this is more atypical. In the ordinary course, the communicable disease is transmitted by way of an airborne virus or bacteria, or through blood or other bodily fluids. Requiring someone to be dressed does not protect another person from an airborne virus or bacteria or from blood or other bodily fluids. What it does is attempt to regulate sexual activity. On the other hand, requiring someone who has a bad cough to be masked or, in the alternative, not to attend work because of the close proximity of the nature of the service provided can help protect against the spread of a communicable disease.

[23] As Mr. Chiarelli states at paragraph 16 of his affidavit:

The prevention of the spread of infectious diseases is also addressed by other sections in the licensing by-law. For example, section 13.6(a) of the licensing by-law requires that body rub attendants as part of their application submit a medical certificate from a physician indicating the applicant is free from communicable diseases.

[24] The requirement that the body rub parlour attendant be free from a communicable disease, while invasive, is a valid health and safety issue. That is very different than the requirement that someone be clothed.

[25] There is nothing that suggests that the dress requirement protects body parlour attendants and their customers. There is nothing that suggests that the dress requirement is a health and safety issue. I am uncertain how clothing can protect someone from getting sick, unless one is talking about being inadequately dressed for certain weather conditions.

[26] It is hard to see how a dress requirement protects a body parlour attendant and his/her customer. The dress requirement is not a health and safety issue, but is, instead, a prohibition against nudity. As such, I find that sections 13.0(1) o) and p) are an attempt by the City to regulate nudity. Accordingly, those provisions of the by-law are ultra vires the City.

Hours of Operation

[27] At paragraph 5 of his affidavit ("the Chiarelli affidavit"), Mr. Chiarelli states:

On September 28, 1998, prior to Staff reporting back to Council with respect to the implementation of a licensing by-law, Council directed that the proposed by-law contain numerous provisions, including restricting the hours of operation. According to this Council resolution, these provisions came as a result of complaints from residents regarding possible illegal activity being undertaken at body rub parlours, and the negative impact that it was having on surrounding areas. The rationale behind the hours of operation restriction was that it would reduce the risk of illegal activity, which would in turn decrease the nuisance that such illegal activities created for surrounding businesses and residents.

[28] A straight forward reading of paragraph 5 of the Chiarelli affidavit suggests that the concerns of Council related to illegal activity. Nuisance concerns were to be addressed through curtailing illegal activity. The illegal activity is, of course, prostitution.

[29] This is consistent with Exhibit 8 to the Chiarelli affidavit where, on May 9, 2005, Council considered a report dealing with areas of enforcement including body rub parlours. Section 5 of that report, titled "Massage/Body Rub Parlours" states, in part:

Although this is a matter that is covered in the Licensing By-law, the topic needs to be discussed separately. The City of Vaughan currently has 23 body rub parlours of which only 5 are licensed. This kind of business has been known to employ young girls and immigrant women and usually operate as a front to prostitution.

York Regional Police have expressed concern that without targeted enforcement of this industry, the crime associated with body rub parlours will escalate and the potential for homicides such as what happened in Markham a year ago will increase.

The only way to close these establishments is to apply constant enforcement and lay as many charges as possible against the operations and the property owners.

[30] There is some confusion with respect to section 5 of the report in that it references both licensed and unlicensed establishments and also speaks about eliminating illegal body rub parlours. It is unclear as to whether the concerns set out in section 5 of the report relate to unlicensed establishments only or to all body rub parlours, legal or illegal. The letter from Denis Mulholland of the York Regional Police dated February 21, 2005 refers to illegal body rub establishments but goes on to state:

York Regional Police and your by-law enforcement officers are aware that some of these establishments operate as fronts for open prostitution within your city and require frequent inspections.

I hope that by bringing this to your attention it will re-new your commitment to enforcement of the City of Vaughan by-laws, which of course are also your responsibility to enforce. Enforcement agencies such as the police and by-law officers cannot turn a blind eye to illegal activities being conducted within a municipality.

[31] The issue of enforcement of body rub parlours was dealt with in a report of the Committee of the Whole (Working Session) dated May 25, 2005. Although the purpose of the report was to deal with the enforcement of illegal body rub parlours in the City, the economic impact portion of the report indicated that funds be set aside for a Special Enforcement Officer to exclusively enforce body rub parlours in the City. The funds to pay a Special Enforcement Officer to exclusively enforce body rub parlours in the City was viewed as consistent with the Vaughan Vision as dealing with community safety.

[32] Again, there appears to be some confusion here between legal and illegal body rub parlours, and body rub parlours as a whole. Further the issue of community safety when dealing with body rub parlours appears inconsistent with the discussion of issuing parking tickets for those illegally parked in fire routes and handicapped spaces, or those persons found to be loitering in parks and community centres.

[33] Black's Law Dictionary, 5 th Ed., West Publishing Co., 1979 ("Blacks"), defines illegal as "against or not authorized by law".

[34] The Concise Oxford Dictionary, 7 th Ed., Oxford University Press, 1983 ("the Oxford Dictionary"), defines illegal as "not legal, contrary to law".

[35] Black's defines criminal as follows:

That which pertains to or is connected with the law of crimes, or the administration of penal justice or which relates to or has the character of crime.

Of the nature of or involving a crime.

[36] The Oxford Dictionary defines criminal as "of (the nature of) crime".

[37] Black's defines nuisance as follows:

Nuisance is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.

[38] The Oxford Dictionary defines nuisance as "anything injurious or obnoxious to the community or member of it and for which legal remedy exists".

[39] In Canada, prostitution is legal. It is only certain activities that surround it which are illegal. As the majority of the Court of Appeal stated in Canada (Attorney General) v Bedford, 2012 ONCA 186 at para. 165:

…On the contrary, if anything can be gleaned from the history of the treatment of prostitution in Canada, it is that acts of prostitution associated with public nuisance and the exploitation of prostitutes by pimps are to be prohibited, but prostitution itself is tolerated.

[40] In my opinion, the objectives of the impugned by-law are:

i. to combat neighbourhood disruption and disorder. This was done by relocating body rub parlours to industrial lands in the City of Vaughan and setting up adult entertainment districts encompassing strip clubs, body rub parlours and adult only video stores. It was done to remove prostitution and other sex related activities from residential neighbourhoods; and

ii. to safeguard the health and safety of the public by requiring individuals working in body rub parlours to be healthy and of a minimum age.

[41] These are the same objectives of the bawdy house provisions set out in the Criminal Code as found by Himel J. at first instance and by Doherty, Rosenberg and Feldman JJ.A. in Bedford at para. 192.

[42] As an aside, I also note the discussion in Bedford at para. 202 where the majority held, in part:

…Health and safety of the public is a broad objective, which can encompass laws that target problems such as human trafficking and child exploitation.

This is consistent with paragraph 8 of the Chiarelli affidavit.

[43] In Westendorp v The Queen, [1983] 1 S.C.R. 43, the Supreme Court of Canada dealt with an appeal arising out of a charge against Ms. Westendorp of being on a street for the purpose of prostitution contrary to the City of Calgary By-law 9022 as amended by By-law 25M81. The court found the by-law to be ultra vires the municipality because it invaded exclusive federal power in relation to the criminal law and restored the acquittal of Judge Oliver:

…As the by-law stands and reads, it is activated only by what is said by a person, referable to the offer of sexual services. For persons to converse together on a street, as did the two women and the police officer here, and to discuss a recent or upcoming sporting event or a concert or some similar event would not attract liability. It is triggered only by an offer of sexual services or a solicitation to that end. There is no violation of s. 6.1 by congregation or obstruction per se ; the offence arises only by proposing or soliciting another for prostitution. To remain on a street for the purpose of prostitution or to approach another for that purpose is to patently an attempt to control or punish prostitution as to be beyond question. The matter goes beyond the provincial legislation held by this Court to be invalid in Switzman v Elbling, [1957] S.C.R. 285, which prohibits any person to possess or occupy a house in the Province to propagate communism or bolshevism. It is clearly distinguishable from Bedard v Dawson, [1923] S.C.R. 681, where the provincial legislation under attack there was justified as concerned with the control and enjoyment of property. There is no property question here, no question even of interference with the enjoyment of public property let alone private property: pp. 51 and 52.

[44] In reviewing the decision of Kerans J.A. of the Alberta Court of Appeal, the Court found his assessment that "the by-law does not strike at prostitution as such; it does not seek to suppress the market for sexual favours; it seeks only to protect the citizens who use the streets from the irritation and embarrassment of being unwilling participants in that market" at p. 53 to be "baffling". The Court continues at pp. 53 and 54:

This assessment of "pith and substance" is to me baffling when regard is had to the terms of s. 6.1. It becomes doubly baffling when Kerans J.A. says this:

I concede that the Calgary legislation makes it an offence for a prostitute simply to enter upon a street for the purpose of prostitution, i.e. without yet doing anything. But this is not an attack on prostitution as such. This is an attempt, by preventative measure, to regulate the activities of the prostitute and their customers on the streets. It is, as it were, a pre-emptive strike. And as such is troubling. But it is insufficiently troubling to change the pith and substance of the legislation.

What appears to me to emerge from Kerans J.A.'s consideration of the by-law is to establish a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a province or to a municipality authorized by a province to usurp exclusive federal legislative power. If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control!

[45] The applicant submits that the decision of Kruzick J. in Pimenova v The Corporation of the City of Brampton is on point with this matter. The City submits that Pimenova can be distinguished because the facts in that case differ significantly from the facts before this court. The City submits that in Pimenova the City of Brampton was trying to prevent sexual contact. The City submits that this provision is quite different than s. 13.0(1) o) which speaks about certain areas of the body being covered.

[46] Both parties are correct and incorrect. The licensing provisions in the City of Brampton's by-law went far beyond those of the City of Vaughan.

[47] In Pimenova the applicant brought an application to quash sections of a by-law relating to body rub parlours. The sections of Brampton's by-law which were before Kruzick J. related to: the number of body rub licenses which could be issued for the City of Brampton and whether those licenses could be transferred, hours of operation of body rub parlours, clothing requirements for body rub parlour attendants and a prohibition against a client touching or having sexual contact with a body rub parlour attendant. Kruzick J. held that "portions of the new by-law in this case are an attempt to regulate morality and venture into areas already dealt with by the Criminal Code": para. 27. The provisions of the by-law relating to transfers of licenses, hours of operation, dress and physical contact were quashed. The provision of the by-law relating to the number of body rub parlour licenses which could be issued by the City of Brampton was found to be within the city's jurisdiction.

[48] Kruzick J. noted that the City of Brampton relied upon the Supreme Court of Canada decision in Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59 as its authority. The City of Vaughan relies upon this decision as well.

[49] In Rio Hotel the operator of the hotel challenged the constitutionality of the New Brunswick Liquor Licencing Board's power to impose conditions in its entertainment license relating to nude entertainment. Dickson CJC, writing for the majority, held that the legislation prima facie related to property and civil rights in that it was part of a scheme regulating the sale of liquor in New Brunswick. He stated at para. 5:

Suffice it to say that when a particular legislative subject matter can be said to have a "double aspect", so that, viewed in one light, the subject falls within the legislative competence of Parliament and, viewed in another light, it falls within the legislative competence of a provincial legislature, federal legislation will be paramount only when there is a direct conflict with the relevant provincial legislation. Mere duplication does not constitute a "direct conflict". Rather, the phrase suggests that, for federal paramountcy to operate, the related federal and provincial legislation must be contradictory.

[50] As such, the Supreme Court of Canada found that although there was some overlap between the licence condition precluding nude entertainment and various provisions of the Criminal Code, there was no direct conflict: para 7.

[51] The decision in Rio Hotel was followed by the Court of Appeal in Ontario Adult Entertainment Bar Assn. v Metropolitan Toronto (Municipality) 1997 CarwellOnt 3415, where the Court of Appeal upheld a City of Toronto by-law which prohibited lap dancing on the basis that although the by-law had the ancillary effect of touching upon morality, nonetheless the pith and substance of the by-law was health and safety and therefore it was a valid provincial undertaking.

[52] I agree with Kruzick J's assessment of the impugned Brampton by-law where he states at para. 36:

There are aspects of the by-law in the present case which I find regulate morality, creating criminal law rather than regulating a business…The provisions of the by-law in issue are more than merely of a criminal nature. I find the City is attempting to legislate and expand on the existing provision of the Criminal Code because it wishes to control sexual activities in body-rub parlours which, under the existing provisions, are difficult to enforce. An examination of the purpose or intent of the provisions of the by-law in issue supports this conclusion.

[53] Here, as far back as 1998, City Council had indicated that the purpose of imposing hours of operation in the by-law was to take the "night away from the ladies of the night". This is nothing more than a description of what Estey J. described in Rio Hotel as conduct that is traditionally criminal, namely prostitution. In my opinion, there is no overlap here.

[54] That being said, even if I were to find that there is a double aspect here, there is a direct conflict between the extrinsic evidence and the nuisance claim. The extrinsic evidence is clear that City Council wanted to remove the night from the ladies of the night. In other words, Council wanted to prohibit prostitution. This trenches on criminal law and is therefore outside the scope of the authority of the City.

[55] Further, paragraphs 5 and 8 of the Chiarelli affidavit, as well as the letter from the York Regional Police, specifically reference illegal activity. That activity is prostitution. The provision in the by-law relating to hours of operation was an attempt to regulate morality. It had nothing to do with nuisance. I say this because once body rub parlours were required to relocate to an industrial area where other adult oriented businesses were located the claim of nuisance was muted. As such, I find that the City attempted to regulate morality through provisions of the by-law and therefore it entered into the criminal law.

[56] Having found that the provision of the by-law relating to hours of operation is ultra vires the City, I do not believe it necessary to address the submission that it is discriminatory to have adult entertainment parlours open longer hours than body rub parlours. Suffice it to say, I agree with Kruzick J.'s finding in Pimenova where he states at para. 53:

While I find that the City may also control and regulate hours of operation, when I considered the background of this by-law, it is clear to me that the City is attempting to curb this form of adult entertainment by imposing a limit on hours of operation with the objective of regulating public morals, not trade and business. I come to this conclusion because the same hours are not imposed on the adult entertainment dance establishments. In this case, the limitation of hours is discriminatory given the background and purpose of the by-law.

[57] In R v Keshane, 2012 ABCA 330 the Alberta Court of Appeal found that there was a double aspect to s. 7 of the City of Edmonton By-law 14614 which makes punishable by way of fine fighting in a public place. The Court held that the impugned section of that by-law fell within the province's power under the double aspect doctrine and therefore was valid.

[58] When a court finds the dominant purpose of a provision to have both federal and provincial aspects of roughly equal importance, the double aspect doctrine is applied. The doctrine confirms that both Parliament and the provincial legislatures have legislative authority over the specific matter dealt with by the provision and upholds the validity of that provision.

[59] The City submits that its purpose in enacting the by-law was to regulate the nuisance caused by what was then described as a "massage parlour" but is, in fact, a body rub parlour.

[60] The City submits that this is similar to what was encompassed in s. 7 of the City of Edmonton's by-law dealing with fighting in a public place, to wit, nuisance. It submits that a nuisance takes away from the reasonable enjoyment of other businesses and other residents. The City submits that the purpose of the by-law is on all fours with the Keshane decision by trying to limit the nuisance.

[61] I have some difficulty with this submission. Having required body rub parlours to be located in an industrial area and one where there are other adult entertainment businesses located, the nuisance argument appears to be moot. The relocation to the industrial area where other adult oriented businesses are located cannot be said to take away from the reasonable enjoyment of other businesses and other residents.

[62] The City submits s. 148(4) of the Municipal Act, 2001, provides that a municipality cannot regulate hours of an establishment that has a liquor licence. I agree. The legislation is clear. That being said, I do not read into the applicant's submission that the City is attempting to legislate in an area occupied by the Province and therefore there is some confusion regarding hours of operation of establishments that sell liquor. Instead, the applicant's argument is that since adult entertainment establishments that sell liquor are permitted to be open longer hours this discriminates against body rub parlours when the by-law defines both in similar terms and the Amendment to the Official Plan of the City requires both to be located in a similar locale.

[63] The City submits that hours of operation are also related to location. It submits that it is attempting to regulate nuisance by trying to prevent crime. It submits that it is not trying to punish prostitution but is, instead, trying to prevent a nuisance associated with any such illegal activity. The difficulty with this submission is that having removed the business to an industrial/commercial area, the concern with crime is the concern with prostitution. The illegal activity is prostitution.

[64] It is clear that the City was attempting to deal with issues of morality raised by uncomfortable residents. The City amended the Official Plan in an attempt to relocate adult oriented businesses away from residential neighbourhoods. This was done as a result of complaints from residents who were uncomfortable with the more explicit and "in your face" sexual overtures from persons involved in sex oriented businesses. The provisions of the by-law dealing with times of operation were done to remove the "night" from the ladies of the night. The Municipal Act as it then existed enabled the City to allege nuisance when in fact the provisions of the by-law dealing with times of operation were an attempt to curtail prostitution.

[65] At the end of the day, the City wanted to curtail prostitution, an activity it believed occurred at body rub parlours. The City did not want the criminal element associated with prostitution to be in residential neighbourhoods and so the City enacted a by-law to licence prostitution by relocating body rub parlours to industrial neighbourhoods and by setting out hours of operation. The City did not do this for the sake of the safety of the women working in the body rub parlours. The City did not do this for the sake of the safety of the patrons of the body rub establishments. Instead, the City did this to remove something it perceived as distasteful from residential communities.

[66] I have read the decision in R v Bondar [2004] O.J. No. 4093. I do not find the decision helpful.

[67] In Bondar the applicant, a licensed body rub attendant, brought an application for a declaration that s. 6(a) of the then Town of Markham By-law 2002-292 was discriminatory as between body rub attendants who worked in a Health and Social Club as opposed to those who worked in body rub parlours. Those who worked in a Health and Social Club could work longer hours as those premises were opened longer hours than body rub parlours. Her Worship found that although there was discrimination, the discrimination was "authorized specifically in [then] section 10 of the Municipal Act" and dismissed the application.

[68] This is not the situation here. In the case at bar the question relates to the pith and substance of the legislation. The legal issues raised in Bondar are different despite similar subject matter. In the case at bar the question relates to the pith and substance of the legislation, and whether there is a double aspect.

[69] While Her Worship chose not to follow Pimenova, I have previously indicated that I do follow it, in part, if not in whole.

[70] In Bedford, Doherty, Rosenberg and Feldman JJ.A. described the role of precedent as follows:

[56] …The notion of binding precedent, often used interchangeably with the principle of stare decisis requires that courts render decisions that are consistent with the previous decisions of higher courts. The rationale for the rule is self-evident: it promotes consistency, certainty and predictability in the law, sound judicial administration, and enhances the legitimacy and acceptability of the common law: David Polowin Real Estate Ltd. V. The Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.) at paras. 119 – 120.

[71] Although Bondar was decided by a Justice of the Peace and Pimenova by the Superior Court, both courts heard their respective applications as courts of first instance. As such, although ordinarily Pimenova would be binding upon me as a decision from a higher level court, that is not the case here. That being said, I have previously indicated that I prefer the reasoning in Pimenova and rely upon it in coming to my decision.

Remedy

[72] Having decided that the pith and substance of the impugned sections of the by-law are criminal and therefore ultra vires the City of Vaughan, the question then becomes what is the appropriate remedy.

[73] Section 52 of the Constitution Act, 1982, makes clear that the Constitution is the Supreme Law of Canada and instructs the court to declare a provision of no force to the extent of the inconsistency. The question is whether I can adopt a remedy of reading in and/or severance rather than striking down the legislation.

[74] I do not have the jurisdiction to amend the by-law. I do not believe I can adopt the remedy of reading in to the legislation; the by-law is a code and I cannot merely read in changes without altering the global nature of the by-law. As such, the only remedy is to strike down the provisions of the by-law.

Conclusion

[75] In conclusion, I find that:

i. s. 13.0(1) h) and 13.4 which prescribe hours of operation are ultra vires the City in that those sections attempt to legislate prostitution. This is within the scope of the criminal law and therefore these sections are quashed.

I would also note that I find the above sections to also be unfairly discriminatory having regard to the hours of operation permitted for other adult entertainment establishments.

ii. s. 13.0(1) o) and p) are ultra vires the City in that those sections deal with nudity. This is within the scope of the criminal law and therefore those sections are quashed.

[76] Finally, in terms of dress I note that, while striking down the part of the by-law dealing with dress, I do not say that body rub parlour attendants should be clothed or not. I am also not opining on whether patrons of body rub parlours should have parts of their bodies covered or not. In my opinion, that is an issue for the attendant and no attendant should be required and/or obligated to provide services partially clothed or unclothed unless he or she is comfortable with same. In my opinion, no body rub attendant should be required to perform services while undressed, and no body rub attendant should be obligated, as a condition of employment, to perform services while undressed. It is up to the body rub attendant to indicate how far the patron should undress and it is up to the patron to decide whether he/she is comfortable with same.

R. S. Shousterman, J.P.