June 27, 2001
Ottawa By-Law Challengers Blowing Smoke
(Ottawa) - June 27, 2001. The Ottawa Council on Smoking and Health and Physicians for a Smoke-Free Canada today released a legal opinion that shows that the City of Ottawa 100% Non-Smoking By-Laws will clearly withstand a court challenge.
“In my opinion, the Ottawa Non-Smoking By-Laws are sound and valid,” said David Hill, Q.C., a founding partner of the Ottawa law firm Perley-Robertson, Hill & McDougall. Hill was asked by the two health agencies to explore the angles under which the by-laws could be challenged and to assess the likelihood that a lawsuit would be successful.
After researching the statutes and case law, David Hill concluded that:
• the City of Ottawa has the authority under the Municipal Act to enact the by-laws;
• Ottawa’s by-laws are not vague, uncertain or ambiguous and therefore are valid and enforceable;
• facilities like restaurants and bars are “public places” in which smoking can be regulated under the Municipal Act;
• the Municipal Act allows for restaurant owners and other employers to be responsible for enforcement;
• the City of Ottawa would not be liable for claims of economic injuries from bars and restaurants;
• the bylaws are not an infringement of the Canadian Charter of Rights and Freedoms nor a violation of the Ontario Human Rights Code
This legal opinion was prompted by recent threats of a legal challenge by the Pubs and Bars Coalition of Ontario (PUBCO). PUBCO was established this spring by a small group of bar and restaurant owners to fight the by-law. On May 24th, PUBCO threatened to launch a legal challenge before the middle of June, but as of today, no lawsuit has yet been filed.
“PUBCO has been blowing a lot of hot air from the beginning, ” said Melodie Tilson, spokesperson for the Ottawa Council on Smoking and Health. “Their claim that the by-laws will cause economic hardship to bars and restaurants is simply not supported by the evidence from many other communities.”
Ms. Tilson observed that PUBCO is preying upon the hospitality owners’ fear of change to try to incite opposition to the by-law. “It is clear that without a strong case against the city, PUBCO continues to rely on the threat of a court challenge to recruit members and to encourage nervous bar owners to thwart the law.” Ms. Tilson noted that by offering to pay for the legal fees of their members who break the law, PUBCO is providing an incentive for civil disobedience.
“It’s time to call PUBCO’s bluff,” added Dr. Atul Kapur, president of Physicians for a Smoke-Free Canada. “If they have a case, then they should bring it forward. But if their case is built on any of the arguments lawyer David Hill has reviewed and debunked, then they should save their members’ money and turn their efforts and energy towards working with the community to create a healthy hospitality industry.”
Ottawa’s 100% Smoke-Free by-law comes into force on August 1st, 2001. At that time all public places and all workplaces will become smoke-free. The by-law creates a level playing field for businesses and protects the health of each and every citizen and employee. Public places include bars, restaurants, bingo halls, bowling alleys, common areas of residential condominiums or multiple-dwelling apartment buildings, and others, including those already smoke-free under the Ontario Tobacco Control Act. The 100% no-smoking by-law will also apply to all workplaces, including those already smoke-free under previously passed Ottawa, Nepean and Kanata municipal by-laws.
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David H. Hill, Q.C.
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