(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.
For information:
Mr. David H. Hill, Q.C.
Perley-Robertson, Hill and McDougall
613 566-2800
Dr. Atul Kapur,
President, Physicians for a Smoke-Free Canada
613 233 4878
Ms. Melodie Tilson
Ottawa-Carleton Council on Smoking and Health
613 837 3420
Download Legal Opinion
here:
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