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Vice - Smoking/Vaping

. 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality)

In 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality) (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal by a 'hookah lounge' operator of an MA 273 application to quash an MA 115(5) 'Health, Safety and Nuisance - Smoking in public places' (anti-vaping and anti-smoking) by-law. Such by-laws are first passed by an upper-tier municipality, but not in force until passed additionally by the majority of contained lower-tier municipalities and that majority has a majority of electors in the upper-tier municipality.

Here the court confirms that municipalities have clear authority to pass anti-smoking/vaping bylaws, here having used the unique authority of MA 115(5):
[8] The application judge found that the by-law is valid and intra vires the Region’s authority to legislate under the Municipal Act. Its purpose is to protect public health and safety from the risks of smoking, a purpose authorized under the Municipal Act. He rejected the appellant’s argument that the by-law was a disguised attempt to regulate business.

....

[28] It is not in dispute that for the by-law to come into force, in addition to being passed by the Regional Council, a majority of the lower-tier municipalities in the Region representing the majority of the electors in the Region were required to pass resolutions consenting to the by-law. This requirement is sometimes referred to as a “triple majority” because it requires: (i) a majority of the regional council; (ii) a majority of the lower-tier municipalities; and, (iii) that the lower-tier municipalities consenting to the by-law represent a majority of the electors in the region. The triple majority requirement is imposed on by-laws that prohibit or regulate the smoking of tobacco or cannabis in public places and workplaces: Municipal Act, s. 115(1) and (5). In this case, for greater certainty, the by-law specifies in s. 11.1 that it comes into force once a “triple majority” has been obtained in accordance with s. 115(5) of the Municipal Act. As noted above, in this case, the final consent required for the by-law to come into effect was obtained on June 24, 2019.




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Last modified: 05-03-24
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