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)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
A single or multi-stemmed instrument for vaporizing and smoking flavored tobacco (shisha or sheesha) or other products in which the vapor or smoke is passed through a water basin ‒ often glass-based ‒ before inhalation. Water pipes are known by a variety of names such as hookah, huqqah, nargilah, nargile, arghila, and qalyan.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"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."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.