Hookah bars or lounges have become relatively popular in the past several years. Some municipalities have cracked down on these types of establishments. One of the latest municipalities to do is Peel. The owners of several hookah lounges sought, among other reliefs, a declaration that the by-law Peel passed prohibited smoking waterpipes in specific places that includes the appellant’s lounges are illegal and should of no force. The application judge dismissed their application.
For the most part, the Court of Appeal agreed with the application judge and dismissed the owners’ appeal. The court found that there was broad statutory authority conferred on Peel to regulates in ‘matters’ that are in relation to health and safety. Given that the by-law was protecting public health and safety, Peel was within the power prescribed to them by statute.
The owners in their second main argument claimed that this by-law conflicts with a regulation under the Ontario Health and Safety Act (OHSA). The owners argued that the field is comprehensively is addressed by this regulation and according to a section 2(2), which states OHSA and its regulation prevail over other laws, the by-law should be of no force.
The court disagreed with the owners, for it found that there was no conflict between the two either expressly or by way of purpose.
As more municipalities or regions decide to effectively ban hookah lounges, stakeholders should be challenging their justifications as the regulation effectively forces these businesses to shut- down leading to substantial economic losses.
We can take away from this decision that it has be demonstrated to the court that there is a conflict of laws, not just mere overlapping between the laws. This is what the owners failed to demonstrate to the court.