The Health Services Review Appeal Board ruled yesterday that the Northwestern Health Unit does not have the right to legally make businesses “butt out” in the name of public health, although this power does lie with individual municipalities.
A written copy of the decision from the appeal board released yesterday afternoon stated the following:
“The question before the Appeal Board is one of statutory interpretation: Does section 13 [of the Health Promotion and Protection Act] give the MOH [Medical Officer of Health, Dr. Pete Sarsfield] the authority to ban smoking in public places in the health unit?
“In recent legislation, the legislature has turned its mind to the issue of regulating smoking in public places,” it added. “It has clearly and unequivocally expressed its intention that the authority to regulate or prohibit smoking in public places lies with locally-elected municipal councils.
“In the face of this validly-enacted legislation—and in the absence of any indication to the contrary—we do not accept that the legislature intended to confer the same authority on the MOH under section 13 of the HPPA.
“This view is supported by the purpose, scheme, and wording of the HPPA,” the ruling continues.
“The Appeal Board finds the mandate of the MOH, with respect to smoking, ETS [Environmental Tobacco Smoke], and the general health concerns associated with them, is to promote smoke-free living through co-operation, education, and assistance in the enforcement of other provincial legislation such as the Tobacco Control Act.
“The Appeal Board is satisfied that the powers of he MOH do not extend to attempting to achieve a health unit-wide ban on smoking in the workplace or in public places such as restaurants and bars, through the issuance of section 13 orders directed to those premises.”
The appeal board noted that Dr. Sarsfield’s authority in this case is limited, and the board could not support his interpretation of section 13 of the HPPA.
“We are satisfied that ETS is a significant health concern,” yesterday’s ruling read.
“We are further satisfied that Dr. Sarsfield was genuine and deeply concerned about the health consequences of exposure to ETS and acknowledge his efforts to educate the people of the Northwestern Health Unit about these health concerns,” it added.
“Nevertheless, we have found that his statutory authority to act on his concerns about ETS is not broad enough to support the orders banning smoking that give rise to these appeals; therefore, it is not necessary for the Appeal Board to consider the alternative grounds of appeal advanced by the appellants [those who were issued orders by the health unit].
“The appeals are allowed. The orders made by the MOH of the NWHU in respect of the Appellants’ establishments are hereby rescinded pursuant to section 44(3) of the HPPA.”
The local health unit first directed all municipalities in the Kenora and Rainy River districts to ban smoking in enclosed public places in 2002—on the grounds second-hand smoke is a public health hazard.
Then last January, Dr. Sarsfield said he intended to lay charges under the Health Protection and Promotion Act (HPPA) against businesses and workplaces that refused to comply with his no-smoking edict.
But resistance from some area restaurant and bar owners, under the moniker “Freedom of Choice Coalition,” who said the health unit couldn’t deny them their rights and hurt their business at the same time, saw the matter go before a three-person committee from the provincial Health Services Review Appeal Board last spring.
Fort Frances Times
Local News from Across the Rainy River District
