Toronto hookah bylaw upheld by unanimous Ont. Court of Appeal

Released by The Ontario Court of Appeal - June 13 2017

The Ontario Court of Appeal today unanimously upheld Toronto’s water pipe (hookah) smoking bylaw as fully legally valid, dismissing a legal challenge in its entirety.  The judgment from the Ontario Court of Appeal (Ontario’s highest court) is attached and will soon be available online:

http://www.ontariocourts.ca/decisions_index/new_releases.htm

The unanimous judgment was from a three member panel comprised of Justices Karen Weiler, Katherine van Rensburg and Grant Huscroft.  The judgment was issued quickly, only one week after the oral hearing before the Ontario Court of Appeal on June 6, 2017.

The Ontario Court of Appeal agreed with the lower court judgment of the Ontario Superior Court that the Toronto hookah bylaw was fully legally valid.  The Oct. 7, 2016 Ontario Superior Court judgment can be seen here:

https://www.canlii.org/en/on/onsc/doc/2016/2016onsc6221/2016onsc6221.html

The judgment is an important victory for public health.  The judgment will prompt other Ontario municipalities to adopt bylaws similar to Toronto, banning hookah smoking in public places.

Employees and customers should not be exposed to toxic and cancer-causing substances found in secondhand hookah smoke.  Secondhand smoke is secondhand smoke.  The Toronto hookah bylaw and its health purpose deserve strong support. 

Other municipalities in Ontario that have already banned all water pipe smoking in public places (notably in restaurants, cafes and bars) include Ottawa, Windsor, Peel Region, Barrie, Orillia, and Peterborough.  Vancouver has done so since 2009.  Five provinces have done so – Quebec, New Brunswick, Nova Scotia, PEI and Newfoundland.  Legislation in Alberta is awaiting proclamation.

If all of these other municipalities and provinces can prohibit hookah smoking in public places, then so can Toronto and other municipalities.  A ban on hookah smoking in public places is inevitable across Canada.

The ban on hookah smoking should be considered as part of the broader context of the Toronto smoking bylaw as a whole.  Prior to the hookah bylaw amendment, the Toronto smoking bylaw had a gap where herbal hookah smoking undermined the health purpose of the bylaw.  The bylaw amendment simply closed the gap.

The legal claim of the establishments against the Toronto bylaw was always completely without merit.  There is no legal right for eating establishments to harm the health of customers and employees. 

There is a legal claim against the Peel Region bylaw brought by establishments represented by the same lawyer who represented establishments in the Toronto bylaw legal challenge.  The Peel Region case was adjourned pending the outcome of the Toronto bylaw case before the Ontario Court of Appeal. The Ontario Court of Appeal judgment provides a devastating blow to the Peel Region case as the legal issues are similar.

Vancouver’s 2009 bylaw banning water pipe smoking in public places was upheld as fully legally valid by the BC Supreme Court on June 19, 2015, and can be seen here:

https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1058/2015bcsc1058.html