Smoking ban going back to court

The question of whether Dr. Pete Sarsfield had the authority to declare a smoking ban in all enclosed public places in the Kenora-Rainy River districts will be heard by the Superior Court later this year.
The Health Services Appeal and Review Board had ruled last year that Dr. Sarsfield did not have that authority.
“The Ministry of the Attorney General has produced a factum giving their arguments against the decision made by the Health Services Appeal and Review Board,” Bill Limerick, director of environmental health for the health unit, said this morning.
He added a hearing has been set for Sept. 26 at the Superior Court of Justice (Divisional Court) in Toronto.
But since the Health Services Appeal and Review Board’s ruling last February stating Dr. Sarsfield had overstepped his authority when he issued the smoking ban, the province announced the new Smoke-Free Ontario Act which, if passed, will take effect by May, 2006.
If passed, the act would prohibit smoking in all workplaces and public places, including bars, restaurants, casinos, and Legion halls.
The legislation also would prohibit establishments from permitting smokers to light up on enclosed outdoor patios and in private clubs, and outlaw so-called “designated smoking rooms.”
But Limerick noted while it appears the whole province will be going smoke-free eventually, appealing the Health Services Appeal and Review Board’s decision isn’t just about getting enclosed public places and workplaces in the Kenora-Rainy River districts to “butt out.”
“There’s more to it than that. It’s about the authority of the medical officer of health to declare a health hazard,” he remarked, whether that hazard be contaminated water, toxic waste, or second-hand smoke.
Appealing that decision, therefore, is important to the continuing enforcement of public health regulations across the province, said Limerick.
The legal battle began when Dr. Sarsfield ordered all indoor workplaces to go smoke-free by Jan. 1, 2003.
But this decree was challenged by the Freedom of Choice Coalition—a group of bar and restaurant owners from around the region—and the case ultimately went to the Health Services Appeal and Review Board.
The Health Services Appeal and Review Board released its decision Feb. 17, 2004, stating 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.
The health unit declined to file an appeal by March 17, 2004, citing the legal battle was too costly to continue.
But in April, the Ministry of the Attorney General of Ontario reported it had applied to dismiss the decision by the Health Services Appeal and Review Board.
The application to the Superior Court of Justice (Divisional Court) noted the province couldn’t appeal the decision directly to the review board, but did have that right under common law to apply for a review of the case by the court.
The ministry wanted the court to toss out the decision and order the appeal and review board to reconsider the case.
The Attorney General’s office—both in its initial application and more recent factum—said the appeal board made errors in its interpretation of the Health Protection and Promotion Act, the Tobacco Control Act, the Smoking in the Workplace Act, and Section 115 of the Municipal Act in arriving at its decision.

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