Sole effect of bylaw was not its potential economic impact on owners’ businesses, overriding effect

Business owners owned hookah lounges in region where customers could smoke water pipes on their premises. Region passed bylaw which prohibited smoking waterpipes in specified places that would include owner’s lounges. Owners brought application for declaration that sections of bylaw were illegal and should be quashed. Owners’ application was dismissed. Owners appealed. Appeal dismissed. Broad statutory authority conferred on region and evidentiary record supported application judge’s conclusions that purpose of bylaw was to protect public health and safety and that bylaw was therefore intra vires. Section 8(1) of Municipal Act, 2001 required that powers of municipality under act be interpreted broadly and s. 11(2) of Act permitted municipality to pass bylaws respecting specified matters including health, safety and well-being of persons. True purpose of bylaw was to prohibit specific activity namely smoking with waterpipes on grounds it posed risk to public health and safety. Sole effect of bylaw was not its potential economic impact on owners’ businesses, overriding effect of bylaw was prophylactic. Prophylactic effect of bylaw was entirely in keeping with application judge’s finding that true purpose of bylaw was to protect public health and safety from risks posed by waterpipe smoking.

2386240 Ontario Inc. v. Mississauga (City) (2019), 2019 CarswellOnt 7538, 2019 ONCA 413, Janet Simmons J.A., M. Tulloch J.A., and David Brown J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 9119, 2018 ONSC 3162, Peter A. Daley R.S.J. (Ont. S.C.J.). (Ont. C.A.); leave to appeal refused (2018), 2018 CarswellOnt 13297, 2018 ONSC 4797, Daley R.S.J. (Ont. S.C.J.).

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