[1] In each of the above captioned actions, the Capital Regional District (the "CRD") seeks enforcement by way of interlocutory injunction of the Capital Regional District Clean Air Bylaw No. 1, 1996 (the "Bylaw"). The Bylaw may conveniently be described as an anti-smoking bylaw which contains the following prohibition:

[2] Each of the defendants operate what may be described as a "pub" located in Sooke (the defendant Sooke River Hotel Ltd.) and in Esquimalt (the defendant Tudor House). During the course of operations as licensed facilities authorized to serve beverages and/or food to members of the public who attend on their premises, it is alleged by the CRD that the defendants permitted patrons to use tobacco products in contravention of the above provision of the Bylaw.

[3] In support of the application, the plaintiff relies on the affidavits of Gary Gibson and Dianne Stevenson, both sworn May 28, 2001. Mr. Gibson is an environmental health officer for the Capital Health Region who attended the Tudor House premises on March 24, 2000 and observed numerous customers smoking cigarettes. He deposes that he discussed the requirements of the Bylaw with the assistant manager and provided him with an information sheet. The information sheet, which is attached as an exhibit to Mr. Gibson's affidavit, makes it clear that:

[4] Approximately one year later, Mr. Gibson attended the Tudor House on March 14, 2001 and noticed the area within the premises was very smoky with tobacco smoke. He observed, at that time, 12 customers on the premises smoking cigarettes. In addition, he noticed black plastic ashtrays located on numerous customers' tables, and on the counter near the bar area. He observed a customer at the bar smoking a cigarette in close proximity to the bartender and service station. He attended again on April 27, 2001 and noticed approximately 31 customers smoking, six of whom were smoking cigarettes while being served drinks by staff. In addition, he observed food and drink orders taken by staff and drinks being served to a table of two customers while they were smoking. Mr. Gibson asked a waitress for an ashtray and she brought an ashtray to him without any comment concerning the Bylaw. That waitress, he observed, took a package of cigarettes to a person at a table next to Mr. Gibson when that individual requested them, and there was no comment by the waitress about the Bylaw. He had made other observations of smoking and black plastic ashtrays on the customers' tables and discerned no effort by the Tudor House staff to control or restrict smoking.

[5] Dianne Stevenson is a public health educator of the Capital Health Region who deposes to the accuracy of the statement of claim and has attached to her affidavit copies of inspections which had recorded contraventions of the Bylaw, including a municipal information ticket in March of 2001. In addition, she attaches a schedule of complaints received concerning smoking on the premises. The schedule is dated February 11, 2000 and identifies approximately 23 complaints of smoking indoors during the month of January 2000. In addition, she attaches reports of Mr. Gibson and one other inspector, concerning their observations on the premises that would indicate patrons were smoking on the premises. As Exhibit "E" to her affidavit she identifies warning letters which were forwarded to the Tudor House on June 7, 1999; June 29, 1999; August 26, 1999, marked "Third Warning Notice"; a letter of November 26, 1999 from solicitors for the CRD demanding compliance with the Bylaw and advising that injunctive relief may be forthcoming; a complaint of January 5, 2000 from the Workers' Compensation Board; and a second letter of January 13, 2000 from the Workers' Compensation Board relating to smoking on the premises; and finally, a letter from solicitors for the CRD dated March 5, 2001 advising that injunctive relief will be sought and if there is a continued violation of the injunction, contempt proceedings will be undertaken, and the possible consequence of same.

[6] In response to the application by the plaintiff for an interlocutory injunction, Mr. Holmes, secretary of the corporate entity carrying on business as Tudor House, deposed, in an affidavit sworn July 24, 2001, that in 1999 the house rules respecting smoking were updated in response to Workers' Compensation Board requests and that the house rules concerning smoking are identified as:

(a) removal of ashtrays;

(b) advising customers they are welcome to use an outdoor patio;

(c) providing a large ashtray outside each of the three building exits; and

(d) that they will instruct customers they can be charged by the CRD for smoking indoors.

[7] In addition, Mr. Holmes deposes that seven "no smoking" signs are present; however, he will not have his staff confront smokers in the pub as it is potentially dangerous. Finally, he states that he believes his house rules and the posting of "no smoking" signs constitute compliance with the Bylaw.

[8] The evidence in support of an interlocutory injunction in relation to the Sooke River pub is similar to that in relation to the Tudor House. Mr. Turcott, in his affidavit sworn May 29, 2001 deposes that he is a private investigator retained by the plaintiff to carry out investigations and attended at the Sooke River Hotel pub on March 14, 2001; that four of 15 customers were smoking while they had beverages on their tables; he noticed no signs on the premises stating that smoking was not allowed; later, additional people entered the premises and a waiter carried an ashtray to the table and then took a beverage order from those persons; the beverages were delivered when two members of the group were smoking cigarettes; and the waiter returned with a second ashtray. He also deposes that later that same day he observed the waiter serve several drinks to a table of four, where two people were smoking; and shortly after that, he noticed the waiter himself smoking a cigarette while standing at the bar; that waiter provided a beverage for an individual who lit up a cigarette and chatted with the bartender as they both smoked cigarettes.

[9] Ms. Dianne Stevenson, in her capacity of public health educator, filed an affidavit similar to that which was sworn in the Tudor House application, dated May 28, 2001, recording seven complaints in January of 2000, including a copy of a photograph which indicates a sign placed above a window showing a skull and cross bones and "CRD No Trespassing Keep Out". In addition, exhibits to her affidavit include three letters from the Capital Health Region concerning smoking on the premises; a letter from solicitors for the CRD advising of the effect of failure to comply with the Bylaw; two letters from the Workers' Compensation Board referring to the failure to comply with their regulation; and a letter from Dianne Stevenson of December 6, 2000 further advising of non-compliance; and finally, two letters, one of March 5, 2001 and one of March 20, 2001, from solicitors for the CRD effectively advising that failure to comply will result in an application for injunctive relief and continued violation will result in possible contempt proceedings. In addition, there are affidavits of Terina Koller and Mr. Gibson reporting smoking on the premises on May 1, 2001 and July 24, 2000 respectively.

[10] In response to this affidavit material, the president of Sooke River Hotel Ltd. filed an affidavit sworn September 14, 2001 which contains the same type of information contained in the affidavit of Mr. Holmes which was filed on behalf of the Tudor House pub. In addition, he deposes that the ashtrays have been removed from the tables and that they will instruct customers they can be charged by the CRD for smoking indoors, and he deposes that there are 30 "no smoking" signs in the pub.

[11] I have no hesitation concluding on the evidence presented that there is an abundance of evidence which would demonstrate that customers of the Tudor House and the Sooke River Hotel were smoking cigarettes or other tobacco combustibles on the premises. Further, I find that the staff, by providing cigarettes and ashtrays, and continuing to serve customers who smoke, were encouraging the consumption of tobacco in violation of the Bylaw, rather than discouraging that practice.

[12] The Local Government Act, R.S.B.C. 1996, c. 323 contains the following two sections:

281 (1) A bylaw adopted under this Act may be enforced by a proceeding in the Supreme Court, and the breach of this Act or a bylaw, resolution or regulation of a council may be restrained by a proceeding in the Supreme Court whether or not a penalty has been imposed for the breach.

282 (1) If a building is erected, altered or used, or land is altered or used, in contravention of this Act or a bylaw under this Act, the municipality may commence a court proceeding at its own instance to restrain the contravention.

(2) The authority under subsection (1) is in addition to any other remedy or penalty provided by or under this Act.

[13] Injunctive relief is available to local governments on a breach being established. As Cumming J.A. stated in Langley (Township) v. Wood (1999), 67 B.C.L.R. (3d) 97; 1999 BCCA 260 at paragraph 17:

[13] The initial submission of counsel for the defendants is that the plaintiff made a procedural error when it described in the writ of summons issued in these proceedings that the plaintiff's claim for an injunction was based on s. 282 of the Local Government Act. In the statement of claim in each action, there is no reference to the statutory section upon which the plaintiff purports to seek relief. In the prayer for relief, the plaintiff seeks a declaration that the defendants have contravened the Bylaw and that an injunction be granted ordering that they comply with the Bylaw forthwith.

[14] Defence counsel submits that the reference to s. 282 of the Local Government Act, which deals with buildings erected, altered or used in contravention of a bylaw and may result in court proceedings to restrain the contravention, is not the section upon which the plaintiff should rely in order to seek a mandatory injunction with reference to its non-smoking bylaw. The submission of the defendants is that the appropriate section under which they should act is s. 281, which provides that a bylaw may be enforced by a proceeding in the Supreme Court, and may be restrained whether or not a penalty has been imposed for the breach.

[15] I note from R. 20(3) of the Rules of Court that a defective endorsement on a writ may be corrected if necessary by a subsequent statement of claim. However, in the case at bar, in my opinion, the cause of action and the relief claimed relate to the enforcement of the Bylaw. The sections of the Local Government Act, either s. 281 or s. 282 are the basis for the court's jurisdiction to deal with the cause of action. In my opinion, it is unnecessary to plead the sections; it is only necessary to plead the material facts upon which the cause of action is based. As failure to plead sections is unnecessary, a fortiori a mis-description in a section is immaterial. Consequently, I would not accede to this defence.

[16] Next, counsel for the defendants was concerned that the history of approval of municipal bylaws (CRD) as required by the Local Government Act demonstrates that there has been some defect in the timing of the approvals by the Ministry of Health or the delegate as required by the legislation. In this respect, counsel for the defendants reviewed various steps to the creation of the valid no-smoking bylaw. These steps included a review of ministerial approval, directly or delegated, the delegation process itself, and the dates that these events occurred. The purpose of the review was to demonstrate that defects occurred in the process that may have invalidated the no-smoking bylaw. Assuming (without deciding), that that is correct, in my view, it becomes insignificant as the Legislature has acted in August of 2001 by enacting the Municipalities Enabling and Validating Act (No. 3), S.B.C. 2001, c. 44 ("MEVA") which provides a validation of anti-smoking bylaws in the following language:

2 (2) Despite section 692(4) of the Municipal Act, R.S.B.C. 1979, c. 290 as that section read in 1996, and despite any decision of a court to the contrary made before or after this section comes into force, anti-smoking bylaws are conclusively deemed to be valid for all purposes.

(3) An anti-smoking bylaw is conclusively deemed to have been validly adopted and to be valid and effective from the time a Provincial health officer approved or purported to approve the bylaw.

(4) All resolutions, bylaws and actions of a local government in relation to an anti-smoking bylaw are conclusively deemed to have been validly adopted or taken as of the date that they were adopted or taken, to the extent they would have been valid had this section been in force on the date they were adopted or taken.

(5) This section is retroactive to the extent necessary to give full force and effect to its provisions and must not be construed as lacking retroactive effect in relation to any matter because it makes no specific reference to that matter.

[17] Consequently, if a procedural defect occurred which may have affected the validity of the Bylaw, the curative provisions of the MEVA legislation rectify any alleged defect. Counsel submits that the legislation may not affect litigation in existence at the date the legislation has passed, and that it may only affect litigation that had been completed prior to the legislation and identified a defect, or litigation commenced after the date of the legislation with a view to challenging the validity of an anti-smoking bylaw. In my opinion, that submission is without merit. The language of the legislation, especially that in subsection (5), makes it very clear that the Legislature intends to breathe life into any anti-smoking bylaw retrospectively, currently or prospectively.

[18] Another issue raised by counsel for the defendants is the utilization of injunctive relief when the Offence Act, R.S.B.C. 1996, c. 338 and the penalty sections of the Bylaw may be utilized in terms of the prosecution of an offender for an alleged violation of the Bylaw. Prosecution of course carries with it certain rights and protections in relation to the person alleged to have committed the offence, such as the obligation to prove beyond a reasonable doubt, the presumption of innocence and defences which may be available to a person alleged to have violated a bylaw.

[19] It is clear that in terms of an interlocutory injunction in civil matters that there is no burden on the applicant to prove the case beyond a reasonable doubt and that the presumption of innocence has no application. The issue of proof in contempt may involve beyond a reasonable doubt if the contempt is deemed to be criminal contempt. However, as often is the case, if civil contempt flows from a breach of an injunction, the burden is not a criminal burden; consequently, it may be easier to obtain an order that a person has violated an injunction than it is to prove violation of a bylaw in a quasi-criminal court proceeding.

[20] However, it must be noted that in s. 281 of the Local Government Act the Legislature has authorized the enforcement of a bylaw by proceeding in the Supreme Court, and has specifically provided that the breach of a bylaw may be restrained by a proceeding in the Supreme Court, whether or not a penalty is imposed for the breach. In my opinion, that language gives the local government (Municipality or CRD) the option to proceed with a breach in the terms of a proceeding seeking a penalty, an application before the court to restrain, or both.

[21] A defence to prosecution of a bylaw founded on due diligence (see R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 40 C.C.C. (2d) 353), in my opinion, is also available as a defence to a contempt of court proceeding. It should be available in contempt, as in bylaw infraction proceedings, to show that that individual has done all what could be considered to be done to comply. Consequently, in my view, there is no prejudice to the defendants by the plaintiff proceeding civilly as distinguished from prosecuting for a breach of a bylaw. In addition, these defendants have notice of the injunction applications and have filed material in opposition to the plaintiff's claims for interlocutory injunctions.

[22] As Madam Justice Ryan stated in Vancouver (City) v. Doll and Penny's Cafe Ltd. (2000), 13 M.P.L.R. (3d) 147; 2000 BCCA 382, in the context of a non-smoking bylaw in terms of a defence to a prosecution in relation to a bylaw passed under the Vancouver Charter, S.B.C. 1953, c. 55, at page 148:

[23] That defence, in my view, is available to an individual who is alleged to be in contravention of a restraining order.

[24] As to the nature of the remedy sought by the plaintiff, at this stage it is to be noted that applications by municipal governments for restraining orders do not involve the usual analysis which is contemplated in injunctions such as described in RJR Macdonald Limited, [1994] 1 S.C.R. 311; 111 D.L.R. (4th) 385. As Mr. Justice McEwan stated in Kootenay Boundary (Regional District) v. Demski (2000), 81 B.C.L.R. (3d) 284; 2000 BCSC 877 at paragraph 6:

[25] The philosophy in relation to the interpretation of bylaws was touched on by the Supreme Court of Canada in the City of Nanaimo v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342; 183 D.L.R. (4th) 1. Although the issue of the standard of review of municipal actions was one of the significant issues addressed, the language that Mr. Justice Major adopted in that context demonstrates the court's approach to municipal bylaws at page 358:

See also 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (2001), 200 D.L.R. (4th) 419; 2001 SCC 40.

[26] When considering the totality of the evidence presented and the submissions of counsel, I am satisfied that prima facie there were breaches of the Bylaw by the two business premises in question.

[27] My only concern relates to the date that the evidence relied on by the plaintiff was obtained. It is somewhat "stale-dated". An application to restrain activity is expected to be supported by current evidence. That is, the conduct sought to be restrained occurred recently and it is expected to continue absent injunctive relief.

[28] In the cases at bar, the applications for injunctions were filed in June 2001 and adjourned by counsel for the plaintiff a number of times (Sooke 5; Tudor 6). At this stage, I am unable to determine the cause of adjournment. Reasons may include accommodation of counsel, court availability, or conflicting schedules. The court need not know reasons for adjournment; however, the nature of the relief sought pending trial demands cogent evidence.

[29] I am entitled to consider the pattern of behaviour established in the affidavit material filed by the plaintiff and the defendants. From the defendants' affidavits it is clear that their staff are not to "confront smokers in the pub". The evidence expressed in the affidavits refers to the future conduct of staff in this respect. That statement, coupled with the statement that removal of ashtrays "has resulted in damage to the carpeting, tables, and dance floor", leads to the conclusion that smoking of tobacco products is ongoing. Consequently, I am satisfied, on the totality of the evidence, that there are ongoing breaches of the plaintiff's Bylaw in the two business premises, which are to be restrained.

[30] I do however agree with counsel for the defendants that a blanket order to enforce the Bylaw is an inappropriate remedy. An injunction to prohibit activity, in my opinion, should specify the acts prohibited in order that the person seeking to enforce knows exactly what has been prohibited and the person who is to comply can equally decide his or her obligations. In that respect, a mandatory interim injunction should be issued against the defendants in the following terms and conditions:

1. The businesses, their management, or staff shall not serve customers who smoke tobacco products on the premises.

2. The management or staff shall not smoke tobacco products on the premises.

3. The management or staff will not provide ashtrays or other items that may be used by individuals who smoke to deposit the detritus from the smoking process.

4. The management and staff are required to take the following steps to ensure compliance with the Bylaw:

(a) advise customers who are about to smoke tobacco products that the action is not permitted on the premises pursuant to the Bylaw;

(b) advise customers that they are to extinguish their tobacco products or consume them outside the premises; and

(c) erect legible signs or notices that smoking tobacco products is prohibited in the building.

[31] This order is granted with liberty to apply to any of the parties to seek clarification or amplification of the terms of the specific prohibitions, define the obligations, identify a potential breach if any, and provide particularity to anyone who may have been alleged to have violated this order.

"F.A. Melvin, J."
The Honourable Mr. Justice F.A. Melvin