Smoking issue could be back in court this fall

Dr. Pete Sarsfield wasn’t the only one surprised with word last week that the Ministry of the Attorney General of Ontario has applied to dismiss a decision by the Health Services Appeal and Review Board in February which stated the medical officer of health overstepped his authority when he issued a smoking ban in all enclosed public places in the Kenora-Rainy River districts.
Bernd Richardt, the Kenora lawyer representing the Freedom of Choice Coalition opposing Dr. Sarsfield’s effort to make bars and restaurant owners “butt out,” said yesterday he thought the matter was over and done with.
“We were surprised in the sense that there’s an appeal process,” Richardt said. “They [the health unit] had 30 days to file an appeal. But there was no appeal, and we expected the matter was basically finished.”
The Health Services Appeal and Review Board released its decision Feb. 17 and the health unit declined to file an appeal by March 17, citing the legal battle was too costly to continue.
Richardt said the application made by the Attorney General is “in essence, asking the court to overrule the ruling made by the Health Services Appeal and Review Board.”
“It’s essentially out of the hands of appeal board and in the hands of the Divisional Court of Ontario now,” he remarked. “We haven’t nailed down what material will be brought before the court.
“Probably not all of it, as the application regards the jurisdictional aspect of the ruling,” he noted. “But both parties will be filing documents and arguments.
“The arguments will probably be heard in Toronto. It probably won’t be until the fall or winter.”
Richardt also noted his clients are “disappointed in that they thought the issue was behind them.”
All Freedom of Choice Coalition members have all been issued papers on the matter, and have been named on the application made by the Attorney General.
As reported in last Thursday’s Daily Bulletin, Dr. Sarsfield, CEO and medical officer of health of the Northwestern Health Unit, said he was thrilled with word he still may see businesses in the Rainy River and Kenora districts “butt out.”
“I thought the game was over,” Dr. Sarsfield said. “We’d attempted to take action against a proven health hazard. The ref made a bad call and that was that.
“This is like having the head ref of the NHL stepping in, saying, ‘Wait a minute here’ and reviewing that call,” added Dr. Sarsfield.
“I am surprised at it,” he admitted. “I’ve been gently accused in the past 48 hours of sitting down with the Attorney General and having lunch with him, and getting things to go our way.
“But I’m actually surprised by it. I didn’t know this would happen.”
Dr. Sarsfield also said he’s “heartened” by the news the Attorney General’s office officially has made an application to the courts, arguing the appeal board erred with its decision.
“I think the decision by the appeal board was bad, and it seems the Ministry of the Attorney General thinks so, too,” he remarked.
“There is no logic to it [the appeal board’s decision] and medical officers of health from all over were left asking, ‘What can we do if we can’t declare second-hand smoke a health hazard?’”
But Dr. Sarsfield added just because the ministry has made an application, it is by no means a “slam dunk,” and that the health unit currently is trying to get answers from its lawyer regarding just what the ramifications of a judicial review are.
Dr. Sarsfield hinted, however, the action “has potential” in turning around the ruling that he did not have the authority to ban smoking in all enclosed public places within his jurisdiction.
Brendan Crawley, spokesperson for the Ministry of the Attorney General, confirmed late Thursday from Toronto that the ministry has filed the application, but added he was unaware how long it may take to see the matter come before the courts.
The application to the Superior Court of Justice (Divisional Court) notes the province can’t appeal the decision directly to the review board, but does have that right under common law to apply for a review of the case by the court, Crawley explained.
The ministry wants the court to toss out the February decision and order the appeal and review board to reconsider the case.
The Attorney General’s office also said in its application that 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.