TOBACCO CONTROL LAWS

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.      

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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
View Case History

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

Cited Legislation

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

News Article Re: Revision of By-laws News Article Re: Appeal

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
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.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Health
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.
Right to Commerce
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.
Right to Property
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.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Work
A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.

Type of Tobacco Product

Hookah, shisha, and water pipes
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.
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