2326169 Ontario Inc. v. City of Toronto

Hookah lounge owners in the City of Toronto challenged a city by-law that banned hookah use in licensed establishments.  When the city adopted the by-law, tobacco smoking was already banned in enclosed public places and workplaces.  Therefore, the by-law applied to other products smoked by hookah, excluding tobacco.  The hookah lounge owners argued that the by-law was invalid because it would shut down their businesses and result in workers losing their jobs.  The Court held that the by-law did not prohibit the plaintiffs from operating the businesses they were licensed to operate (eating establishments offering food and non-alcoholic drinks).  Furthermore, the Court found that the by-law protects workers rather than harm them.  Thus, the Court dismissed the plaintiffs' application and held that the by-law was valid.      

2326169 Ontario Inc. et al. v. The City of Toronto, 2016 ONSC 6221, Ontario Superior Court of Justice (2016)

  • Canada
  • Oct 7, 2016
  • Ontario Superior Court of Justice

Parties

Plaintiff

  • 2326169 Ontario Inc. operating as Farouz Sheesha Café
  • 7923406 Canada Inc.
  • Club Layaly el Sharke Inc.
  • Nile Palace Cafe
  • Oum Kulthoum

Defendant The City of Toronto

Legislation Cited

By-law No. 1331-2015 (adopted 10-Dec-2015)

City of Toronto Act 2006, SO 2006, c 11, Sch A

Controlled Drugs and Substances Act, SC 1996, c 19

Occupational Health and Safety Act, RSO 1990, c 0.1

Smoke Free Ontario Act, SO 1994, c 10

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

"I must respectfully disagree. As Mr. Zigler fairly noted, there is a very heavy burden on a party seeking to establish bad faith by members of City Council. A party must show that a municipality acted with “a lack of candour, frankness, and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest.” See: Equity Waste Management of Canada v. Town of Halton Hills (1997), 35 OR (3d) 321 (CA) per Laskin J.A. at para 61. Moreover, it must be bad faith on the part of the Council itself, which was the decision-maker. As Aston J. of this Court pointed out in Municipal Parking Corp v. City of Toronto (2009), 2009 CanLII 65385, 314 DLR (4th) 642 (ONSC), even if staff did provide information that was misleading or incorrect there must still be evidence of bad faith. The evidence must be of the sort described by Laskin J.A. In my view, there is no such evidence here. Taken at its highest, the evidence shows that some staff members might have made some mistakes at some point. The central message of the report, that hookah smoke is harmful, was clearly the basis upon which Council passed the by-law. Council therefore made a policy choice. The by-law was passed by an overwhelming majority of city councillors. It was an exercise of democratic decision-making. It is no part of this Court’s function to overturn the will of elected officials by, in effect, second-guessing their policy decisions."