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City bylaw prohibiting hookah smoking in licensed businesses for health and safety reasons is valid: Court

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The City of Toronto Council had the legal authority to make a by-law that prohibited hookah smoking in licensed establishments, an Ontario judge has decided, given the city’s valid health and safety concerns.

The City of Toronto Act gave City Council the power to make bylaws respecting the “Health, safety and well-being of persons”.

The city presented evidence that hookah smoking was hazardous to health and that hookah smoke included some of the same cancer-causing chemicals associated with tobacco.

A group of owners of hookah lounges attacked the bylaw. One of their arguments was that the bylaw violated the Occupational Health and Safety Act because it would cost workers their jobs whereas the purpose of the OHSA, according to the owners of the hookah lounges, was to “protect jobs”.  The court rejected that argument, deciding that the reason for the bylaw – health and safety –  was consistent with the purpose of the OHSA which was safety of workers.

The court stated:

“It is difficult to see how the by-law operationally conflicts with the OHSA.  The OHSA is designed to protect workers.  It regulates workplaces in the interests of worker safety.  It is difficult to see how compliance with the by-law makes it impossible to comply with the OHSA.  Moreover, it is very clear that it is public policy in Ontario to discourage smoking and protect people (including workers) from the effects of tobacco smoke: Smoke Free Ontario Act.  While that Act only applies to tobacco, the objective (healthier citizens) is broader.  A by-law that protects workers does not frustrate the objectives of the OHSA.”

The judge concluded by saying that he had a great deal of sympathy for the owners of the hookah lounges.  “They run modest businesses that are otherwise lawful and compliant with pertinent regulations and by-laws.  They make an important contribution to the diversity that makes life in our city so culturally rich and vibrant.  It is unfortunate for them that Council chose to prohibit rather than regulate hookah use in establishments licenced by the City to carry on business.  That was a policy decision by elected officials.  It is my duty to determine whether the by-law is legally valid, not whether it is good policy or bad policy.”

2326169 Ontario Inc. v The City of Toronto, 2016 ONSC 6221 (CanLII)