Ontario's superior court upholds Toronto's 'unfortunate' hookah ban bylaw

'That the bylaw is aimed at the health and safety of the City's residents is beyond doubt,' judge rules

Ontario's Superior Court has upheld a decision by the city to ban hookah smoking in Toronto bars and cafes, but says it is nevertheless "unfortunate" that the bylaw prohibits hookah use altogether rather than regulating it.

In a decision issued Friday, Justice R. F. Goldstein said he was sympathetic to the hookah lounge owners, who he described as running "modest businesses" and making "an important contribution to the diversity that makes life in our city so culturally rich and vibrant."

But while sympathetic to their plight, the judge said the bylaw is in fact legally valid and must be seen in the broader context of the city's anti-smoking campaign.

"That the bylaw is aimed at the health and safety of the City's residents is beyond doubt," the decision said.

'The City is not taking anything away'

City council voted 34-3 in November of 2015 to ban hookah use inside licensed establishments. The bylaw took effect April 1 amid widespread complaints by hookah-lounge owners that the ban was discriminatory.

Lawyer Ryan Zigler, who represented four such owners, argued that the city didn't have the power to ban hookah smoking, saying the bylaw was "confiscatory" because it effectively prohibited a lawful business and would cost workers jobs.

In Friday's ruling, Goldstein acknowledged the city does not have the authority to pass a confiscatory bylaw, but disagreed with Zigler's characterization of it as such.

"There have been no changes to the business licenses of the Applicants," the decision said.

"They are all business or business operators that are licensed by the City as 'eating establishments' ... Hookah pipes and shisha are offered for rent and sale," he wrote. "The City is not taking anything away."

The Canadian Cancer Society applauded Friday's decision.

"The judgement is an important victory for public health," the society's senior policy analyst, Rob Cunningham, told CBC News. "Employees and customers should not be exposed to toxic and cancer-causing substances found in second-hand hookah smoke."

As a result of the ruling, Toronto now joins a handful of other municipalities in the province that have banned water-pipe smoking, including Peel Region, Barrie, Orillia and Peterboough, Cunningham said.

Vancouver has had a similar ban in place since 2009, and the city of Ottawa is set to follow suit in 2017.  

Resource: http://www.cbc.ca/news/canada/toronto/ontario-s-superior-court-upholds-toronto-s-unfortunate-hookah-ban-bylaw-1.3796641