Date:19961030 Docket: A961963 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE VANCOUVER CHARTER 1979 R.S.B.C., C. 421.7 AND THE JUDICIAL REVIEW PROCEDURE ACT, 1975 R.S.B.C., C. 209 BETWEEN: THE RESTAURANT AND FOODSERVICES ASSOCIATION OF BRITISH COLUMBIA AND THE YUKON and FAIRVIEW RESTAURANTS LTD. DOING BUSINESS AS THE FOGG 'N' SUDS PETITIONERS AND: CITY OF VANCOUVER RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE COHEN Counsel for the Petitioners: P.A. Gall Counsel for the Respondent: T.R. Bland Date and Place of Hearing: October 7, 1996 Vancouver, B.C. I. The Petition [1] The petitioners, The Restaurant and Foodservices Association of British Columbia and the Yukon and Fairview Restaurants Ltd. doing business as The Fogg 'N' Suds, challenge the Respondent City of Vancouver's Health By-Law #7560 (the "By-Law"). The By-Law imposes a prohibition on smoking in most indoor public places but draws a distinction between restaurants and eating and drinking establishments licenced under the Provincial Liquor Control Legislation where entry by minors is prohibited. The petitioners contended that the drawing of the distinction is not authorized by the Vancouver Charter (the "Charter"). [2] The petitioners submitted that the distinction the City purports to draw between restaurants and other food and liquor service establishments in the By-Law must either be one that is expressly authorized by its governing legislation, or it must be one that is necessarily incidental to the purposes for which the power was granted, so as to be impliedly authorized. The petitioners submitted that the distinction in the smoking By- Law between different classes of food service establishments cannot be supported on either of these grounds and therefore all or part of the smoking By-Law must be invalidated on the ground that it is discriminatory. [3] The ground upon which the petition is based is that the By-Law is invalid and of no force and effect because it unlawfully discriminates between different classes of establishments serving both food and alcoholic beverages. In particular, because it discriminates by expressly allowing proprietors of casinos, bingo halls, liquor outlets licensed under the provisions of the Liquor Control Act as Class "A".`"C" or "D", or other commercial establishments where entry by minors is prohibited by law, to designate up to 70% of their floor area as a place where persons may smoke, while prohibiting all smoking in restaurants and other food establishments, whether or not they hold a Class "B" licence under the provisions of the Liquor Control Act, and whether or not they permit minors. In his affidavit sworn September 20, 1996, Mr. Fred Smolen, President of the petitioner Fairview Restaurants Ltd., doing business as The Fogg 'N' Suds, deposed: 3. The customers of the Fogg 'N' Suds restaurants fell predominantly within the age group of twenty to forty years. Prior to the Bylaw coming into effect on May 31, 1996, the Fogg 'N' Suds restaurants set aside 50% of their seating as a smoking section and 50% of their seating as a non-smoking section. On average the number of customers who chose the non- smoking section was approximately the same as the number of customers who chose the smoking section. 4. The Bylaw imposes a severe burden on the customers of the Fogg 'N' Suds who choose to smoke and gives a significant business advantage to the Fogg 'N' Suds's competitors that have Class "A", "C" or "D" liquor licences. [4] Sections 6.1 through 6.5 of the By-Law provides as follows: 6.1 No person shall smoke (a) in a restaurant or a limited service food establishment except in a patio or in a smoking room, (b) in a mall, (c) in any part of a building that is generally open to and accessible by the public or generally available for common use by the occupants including, but not limited to, hallways, foyers, stairways, elevators, escalators, laundry rooms, washrooms and amenity areas, (d) in a taxi cab or limousine except with the consent of all passengers and the driver, (e) in a school bus or other form of public transportation, (f) in a hotel or motel room designated by the proprietor as non-smoking, (g) in a place of public assembly except in a smoking room, (h) in any part of a commercial establishment except as permitted by section 6.4 or in a smoking room, (i) in any place of employment not referred to in any other clause of this section 6.1 except in a smoking room. 6.2 No proprietor of a restaurant, limited service food establishment, mall, place of public assembly, commercial establishment or place of employment shall permit a person to smoke in their establishment except as provided for in section 6.l. 6.3 A proprietor of a casino, bingo hall, liquor outlet licensed under the provisions of the Liquor Control and Licensing Act as Class "A", "C" or "D", or other commercial establishment where entry by minors is prohibited by law, may designate an area within the premises as a designated smoking area provided that the area so designated (a) does not exceed 70% of the floor area of the portion of the building, structure, place or area that is generally open to and actively used by the public but not including foyers, stairways, washrooms and cloakrooms, (b) is designed, located and maintained so that the impact of tobacco smoke on patrons in adjacent areas where smoking is not permitted is minimized by means of ventilation, air cleaning, physical separation or other effective means, (c) is located so that non-smoking customers do not have to pass through it to enter or leave the premises or to gain access to the washrooms or cashiers, and (d) has its limits clearly identified by signs which comply with section 6.6. 6.4 A person may smoke in a casino, bingo hall, liquor outlet licensed under the provisions of the Liquor Control and Licensing Act as Class "A", "C", or "D":, or other commercial establishment where entry by minors is prohibited by law, provided that the smoking is done only in a designated smoking area which complies with the provisions of section 6.3 or in a smoking room which complies with the provisions of section 6.5 6.5 Where smoking is permitted in a smoking room by this By-Law the smoking room shall be (a) no larger than 10% of the floor area of the portion of the building, structure, place or area that is generally open to and actively used by the public but not including foyers, stairways, washrooms and cloakrooms, or 5 square metres, whichever is the smaller, (b) physically separated from the rest of the premises and sealed with four walls, a ceiling and a tight-fitting door, (c) separately heated, cooled and ventilated from the rest of the premises, (d) exhausted to the outside so as to provide a negative pressure within the room, and (e) equipped so that its only use is to permit persons to smoke. [5] The facts upon which the petition is based are as follows: 1. The Restaurant and Food Services Association of British Columbia and the Yukon is a voluntary association representing the common interests of restaurants, caterers and food service providers in British Columbia and the Yukon. 2. On May 14, 1996, the Council of the City of Vancouver passed By-Law No. 7560 (the "By-Law") which prohibited smoking in, inter alia, "a restaurant or a limited service food establishment except in a patio or in a smoking room." 3. A "patio" is described in section 1 of the By- Law as "an outdoor seating area which is not covered, in whole or in part, by a roof or an awning". 4. Under section 6.5 of the By-Law, a smoking room must not exceed five square metres in floor area, must be physically separated from the rest of premises, separately heated, cooled and ventilated from the rest of the premises, and equipped so that its only use is to permit persons to smoke. 5. Section 6.2 of the By-Law requires proprietors of restaurants and other commercial establishments to ensure that persons do not smoke in their establishments. 6. The By-Law came into effect on May 31, 1996. 7. Although Council of the City of Vancouver has stated that strict enforcement of the By-Law will not take place until December 1, 1996, the By-Law provides that any person convicted of smoking in contravention of the By-Law, or any operator allowing smoking in contravention of the By-Law, is liable to a maximum fine of $2,000. 8. Under section 6.3 of the By-Law, smoking is permitted in casinos, bingo halls, liquor outlets licensed under the provisions of the Liquor Control and Licencing Act as Class "A", "C" or "D" (pubs, cabarets and lounges), or other commercial establishments where entry by minors is prohibited by law, in designated areas constituting up to 70% of the floor area of these establishments. 9. Under s. 17(1) of the Regulations under the Liquor Control and Licencing Act, (the "Regulations") a class "A" licence may be issued to hotels, resorts, clubs, recreational centres, aircraft, trains, motor vehicles, airports, municipally and provincially owned cultural centres, universities, colleges and military messes. 10. Under s. 17(1)(g) of the Regulations, an establishment that has been issued a class A licence may serve any type or variety of food, but, unless exempted by the General Manager designated under the Liquor Control Act (the "General Manager"), is required to serve hot foods, wrapped sandwiches, snacks, hot beverages, soft drinks, fruit and vegetable juices at reasonable prices to customers. 11. Under s. 1 of the Regulations and the Liquor Control and Licencing Branch Licencing Policy Manual, January, 1992. Policy NO. A110 (the "Policy Manual") page 1, a hotel holding a class "A" licence must provide a restaurant serving breakfast, lunch, and dinner as a condition of continuing to hold a class "A" licence. 12. Under s. 17(2) of the Regulations a class "B" licence may be issued to dining establishments primarily engaged in the service of food. An establishment holding a class "B" licence is prohibited from serving liquor to a patron except when satisfied that the patron genuinely intends to eat a meal. Pursuant to the Policy Manual, only "first class restaurants which offer full sit down table service" will be licensed to serve all types of liquor. Restaurants which "offer lessor variations" will be licenced only to serve limited types of liquor, such as beer and wine. 13. Under s. 17(2)(b) of the Regulations, minors are permitted to be present in establishments with a class "B" licence. 14. Under s. 17(3) of the Regulations, a class "C" licence may be issued to cabarets primarily engaged in providing entertainment. 15. Under s. 17(3)(h) an establishment that has been issued a class "C" licence may serve any type or variety of food, but, unless exempted by the General Manager, is required to serve hot foods, wrapped sandwiches, snacks, hot beverages, soft drinks, fruits and vegetable juices at reasonable prices to customers. 16. Under s. 17(4)(h) of the Regulations, a class "D" licence may be issued to an establishment known as a neighbourhood public house. 17. Under s. 17(4)(h) of the Regulations an establishment that has been issued a class "D" licence may serve any type or variety of food, but, unless exempted by the General Manager, is required to serve hot foods, wrapped sandwiches, snacks, hot beverages, soft drinks, fruit and vegetable juices at reasonable prices to customers. 18. Some establishments hold two classes of licences covering the same space. For example, the Commodore Ballroom holds both a class "B" licence and a class "C" licence, which permits it to operate as a licenced restaurant in which minors are permitted during the day, until 7:00 p.m., at which time the licence shifts to a class "C", licenced cabaret, in which minors are generally not permitted. Under the By-Law, smoking would be prohibited in such establishments under the class "B" licence. However, at the moment that the class "C" licence comes into effect, smoking would be permitted in designated areas constituting up to 70% of the floor area. 19. In its "Guide to Smoke-Free By-Law", the Respondent provides the following rationale for the By-Law: Medical evidence is increasing about the harmful effects of second-hand (exhaled) smoke and side-stream smoke (the smoke from "idle" cigarette, cigar or pipe). The effects on the smoker have been known for decades. However, it is now clear that people become ill, diseased and die prematurely due to consistent involuntary exposure to the dangerous gases and chemicals in tobacco smoke. Environmental tobacco smoke is responsible for increased rates of respiratory infections, heart disease and lung cancer. Reducing exposure to environmental tobacco smoke will protect workers' health and significantly improve childrens' health. Youth smoking rates are alarmingly high. Exposure to smoking and tobacco products influences our youth. Restricting smoking in public and in workplaces is effective modelling healthier lifestyles for youth. 20. The Vancouver Health Board, Environmental Health Division, issued a "backgrounder" setting out facts on environmental tobacco smoke. This pamphlet stated in part as follows: Environmental tobacco smoke (ETS) combines side- stream smoke from the burning ends of cigarettes, pipes or cigars and the fumes (or second-hand smoke) exhaled by smokers. ETS contains more poisons and so is more hazardous to non-smokers than the tobacco smoke inhaled by smokers. ETS is a blend of gases and small particles produced when tobacco is burned. They contain about 4,000 chemicals, at least 42 of which are cancer causing agents. Because of this, in 1993, the Environmental Protection Agency labelled ETS a class-A carcinogen - known to cause cancer in humans. Most hospitality industry employees are exposed to ETS in the workplace. Not surprisingly, research suggests they face significantly elevated cancer risks. For instance, food service workers are 50% more likely to develop lung cancer than members of the general population. Besides workers like these, ETS affects the non- smokers they serve, including children and infants. . . . ETS causes 50 lung cancer deaths annually in B.C., 37 from workplace exposure according to the B.C. Ministry of Health. 21. Although the language of the By-Law suggests that smoking is permitted only in commercial establishments where entry by minors is prohibited by law, minors are, in some circumstances, permitted to be present in establishments holding a class "A", "C" or "D" licence. For example: a. Under s. 17(1)(c) of the Regulations, minors are permitted in an establishment holding a class "A" licence where: i. The establishment is an aircraft, train or motor vessel; ii. The minor is entertaining in the establishment; or iii. The General Manager has approved the presence of minors within a designated area within the class "A" establishment by endorsement of the licence. b. Under s. 17(3)(c) of the Regulations, minors are permitted in an establishment holding a class "C" licence where: i. The minor is entertaining in the establishment; or ii. Where the general manager has designated the establishment as one in which minors accompanied by an adult may be present because the entertainment in the establishment is of a cultural or education nature. c. Under s. 17(4)(c) no minors other than entertainers are permitted in establishments holding a class "D" licence. 22. Under the provisions of the By-Law, restaurants are not permitted to designate themselves as adult only restaurants so that smoking may be permitted in designated areas within the restaurant. Consequently, even if a restaurant did not permit minors on the premises, no smoking would be permitted in the restaurant under the By-Law. II. The Issue [6] The issue in this application is whether the distinction drawn in the By-Law is either expressly authorized by the Charter, or one that is necessarily "incidental" to the purposes for which the power was granted by the Charter. III. Decision [7] The By-Law is valid. IV. Background [8] On December 8, 1994, the respondent considered a report from its Medical Health Officer ("MHO"), Dr. John Blatherwick, on moving towards an objective of 100% smoke-free public indoor environments. The respondent endorsed, in principle, the objective of smoke-free indoor environments while leaving the effective date open for further discussion. In addition, the respondent directed the MHO to carry out a public consultation process toward the establishment of an implementation schedule for smoke-free indoor environments. [9] In a Policy Report to the respondent from the MHO on the subject of "Smoke-Free Indoor Air By-Law", dated September 6, 1995, the MHO recommended and reported, inter alia, as follows: A. THAT the Vancouver Health By-Law #6580 be amended to effectively prohibit smoking in all indoor public places effective May 31, 1996, consistent with the key elements contained in Appendix A to this report. B. THAT the Director of Legal Services be instructed to bring forward the necessary By-Law amendments. C. THAT the Medical Health Officer be directed to not carry out active enforcement of the By-Law until September 30, 1996, to allow for a phased implementation and communication of its provisions. Summary Staff are recommending that the Health By-Law be amended to prohibit smoking in all indoor public environments effective May 31, 1996, with a moratorium on active enforcement until September 30, 1996, to allow for public and operator education. Staff have also indicated a second option which meets the public health objective, albeit over a slightly longer time frame, phasing in smoke-free restrictions over two years for hospitality industry establishments other than restaurants. The report concludes that the public is ready for this shift in public policy and that the proposals contained in the report form a reasonable and workable approach to achieving clean indoor air, while considering other public policy imperatives such as a healthy economy, continued employment and social equity. ... Inequities in application Staff have approached this initiative from its inception with an objective of having it adopted on a consistent basis throughout the Lower Mainland and Capital Regional District. Although there is no way of absolutely ensuring this, it still remains our objective. To further that end, we have chosen to recommend fairly restrictive exemptions mechanisms. Any exemption granted by Council should take into consideration the paramount goal of protecting worker and public health. Although the By-Law would have no effect on aboriginal land, we could approach operators of public establishments on First Nations land to adopt parallel smoking restrictions. It is also gratifying to note that Washington State may not be far behind in enacting similar legislation. We also feel we need to strive for equity of application, without distinctions based on size of establishment, location or the ability of have outdoor seating. ... Worker Health not our jurisdiction From the beginning, this initiative has been intended to address both public health and worker health risks associated with ETS. In large part, this is because, in most establishments, the two are very hard to deal with separately. By reducing the public's exposure to ETS we also reduce worker exposure and vice versa. It has also been a long-standing provision of the current smoking By-Law, and of other smoking By-Laws across the country, that smoking in workplaces is tightly controlled or prohibited. This jurisdiction has, to our knowledge, never been challenged. ... Smokers rights, right to choose The proposed By-Law does not infringe on any recognized rights of smokers, except where the exercise of these "rights" impacts on the rights of others (e.g., to breathe clean air). This is clearly not a "rights" issue but a health issue. The target of this initiative is not the poor, beleaguered smoker - the target is ETS and its impacts on workers and the public. Review of Options In formulating a final recommendation to the respective City councils, the Medical Health Officers and Chief Environmental Health Officers considered a wide range of options, and evaluated them against the public health objective of clean indoor air and reduced illness and mortality, as well as other criteria such as social impacts, economic impacts, equity (level playing field) and enforceability. The following options were generated: 1. Prohibit smoking in all indoor public establishments but allow smoking in physically separated, separately heated, cooled and ventilated rooms into which workers are not required to enter. This approach provides the optimal protection of public and worker health, while providing an option for the provision of "smoking rooms". some may be view this approach as highhanded and a recipe for economic disaster. Staff are confident, however, that the general public will support this approach as reasonable and workable. 2. Prohibit smoking in restaurants immediately and phase in a ban in other establishments. Following up on the previous option, the argument for this approach might be that the non-restaurant establishments should receive the same phase-in treatment that restaurants received in the 1980's. Given staff's comments in the 1994 report about the ineffectiveness of smoking areas, such an approach would tend to foster the myth about designated smoking areas. Nevertheless, combined with modest improvements in ventilation/air cleaning and a modest phase in period, the public health objective would be achieved while acknowledging some industry concerns. 3. Phase in prohibitions over the next two to four years with increasingly lower percentages of smoking seats. This "go slow" approach would tend to ease restrictions into establishments that currently are required to provide non-smoking sections as well as those that have not previously experienced restrictions. Again, given what we known about ETS exposure, staff feel that the City would be remiss in taking a gradualism approach when more decisive action is required. Since some jurisdictions already limit restaurant smoking to 20% of seating, incremental jumps to 100% in the foodservice don't appear to be justified. 4. Prohibit smoking in restaurants only, leaving other establishments unregulated. There may be an argument that the restaurant section has progressively been moved toward 100% prohibition, in that some jurisdictions currently require 80% smoke-free seating. Other sectors have been virtually unrestricted. Nevertheless, this option continues to allow an uneven playing field, especially with the blurring of distinctions between establishments that serve meals and those that serve drinks. It also fails to address worker exposure in the categories of establishments (bars, pubs, cabarets, casinos, bingo halls) where the exposure to ETS is highest. 5. Hold off on prohibitions until ventilation is proven/disproved as a viable alternative. This option would see a delay of a number of years until the verdict is in on ventilation as a solution. It assumes that there is still some potential for ventilation to provide the answer. Given the high costs, the potential unreliability and the creation of an uneven playing field, staff believe this option is only an excuse to delay. 6. Prohibit smoking in all establishments that admit minors. This approach would protect our youth but provide no protection for adults (workers or public). The argument in favour of this approach might be that adults enter these establishments on their own accord. Again an uneven playing field develops and the public health objectives are not achieved. 7. Prohibit smoking in all establishments that predominantly serve food. Again the ETS exposure and its effects do not distinguish between whether the exposed individual and eating a meal or drinking. This would be an artifical distinction at best and would retain some features of an uneven playing field. On the plus side, it would address concerns about inequitable application raised by the restaurant section who view many liquor establishments as competition in the food- service industry. 8. Do Nothing (i.e., let the marketplace decide) As best as we can tell, this is the preferred position of the hospitality industry. Effectively this would mean no restrictions on where people can smoke; over a longer period of time more restaurants would likely become smoke- free in response to "market" pressures. Staff feel strongly that this option is unsupportable, since it continues to place workers and the public at risk. Many public policies exist to address "market failures", situations where the free market does not properly address externalities such as air pollution, poor logging practices or environmental tobacco smoke. The Medical Health Officer recommends that Option 1 be adopted and notes that similar recommendations are being made by the Medical Health Officers of the Lower Mainland and CRD to their respective Councils over the next months or so. Adoption of Option 1 attains the public health objective in a full and timely way. ... Social Impacts/Impacts on Children and Youth One "side-effect" of a 100% smoke-free requirement experiences in other jurisdictions is a slight reduction in smoking prevalence. Any reduction in smoking prevalence amongst youth would be welcomed. In the long term, any reduced expenditures in health care for individuals affected by ETS, may free up resources for other social programs. [10] Three Special Meetings of the respondent were held on September 18, October 24 and November 7, 1995, for the purpose of hearing delegations on the proposed smoking ban. In a memorandum dated November 8, 1995, to the Mayor and Council from the MHO, he stated: Now that Council has had the benefit of hearing from more than 100 delegations on the smoke-free indoor air By-Law issue, I thought it might help to review for Council the options contained in the original Medical Health Officer's report as well as suggest a mechanism for ensuring a regionally consistent approach to the issue. It became readily apparent during the 3 evenings of delegations that the Recommendations contained in the Medical Health Officers' report had generated a great deal of consternation in the hospitality sector. It is not for me to debate whether this consternation is valid or whether it has been fanned by other interests - the fact remains that the desire for a compromise was expressed by numerous delegations. [11] On December 5, 1995, Council agreed to participate in a regional consultation process initiated by the G.V.R.D. A memorandum to the respondent from the City Clerk, dated February 16, 1996, stated: Subsequent to the Council of Councils meeting a series of meetings were convened, with the assistance of Dr. Frederic Bass, between Dr. Blatherwick and Bruce Clarke of the Lower Mainland Hospitality Industry Group. The intention was to explore the possibility of a joint solution to the indoor smoking issue. These meetings concluded in mid-January with a draft approach to a By-Law which both parties were willing to put forward to the G.V.R.D. process through the Metropolitan Board of Health. The Metropolitan Board of Health endorsed the proposal on January 24, 1996 and communicated this to the Chair of the G.V.R.D. The proposal was introduced and discussed at a meeting of the G.V.R.D. Task Force on February 7, 1996. The general consensus at that meeting was that the proposal provided a good framework for a regionally consistent approach and should be taken back to the respective Councils for an indication of support, in principle. It was also clear that some councillors felt that their Councils would view the proposal as a baseline but would likely entertain more restrictive By-Laws. DISCUSSION The joint proposal drafted by the Industry Group and the Medical Health Officer enshrines the following key principles: l. Recognition that Environmental Tobacco Smoke (ETS) has a detrimental effect on public and employee health; 2. The need for a prioritized, practical regulatory and educational approach to address these health risks; 3. The elimination of the involuntary risk of exposure to ETS in our young people is recognized as an effective priority measure; and 4. The reduction of "voluntary" exposure to ETS by adults in adult-oriented establishments is an objective that can be achieved through the appropriate application of best available control technology and administrative controls. [12] Counsel for the petitioners wrote to the respondent on October 2, 1996 posing a series of questions. The responses to some of the questions weere as follows: Question lc. When you say that a general prohibition would not receive the public support necessary, do you mean that: i. the majority of the citizens of Vancouver would oppose the By-Law or ii. that you would receive strong opposition from a minority group, such as smokers, smoking lobbies, casinos or liquor establishments holdings Class "A", "C" or "D" licences? Answer i. Our surveys had shown that the majority would support a total ban. ii. I came to the conclusion, after hearing all parties, that to stick with a complete ban was not going to go ahead and looked to me for a compromise. I met with the Lower Mainland Hospitality designated spokesperson. He told me the Restaurant Association would not offer a true compromise and the Restaurant Association told me they would only negotiate through the Lower Mainland Hospitality Group. I put the compromise they offered to Council. Council did not accept their compromise position and crafted their own By-Law. Question 2a. and b. In considering the representations made by establishments holding Class "A", "C" or "D" liquor licences, did you understand their opposition to a general prohibition to be that: a. Their customers and employees were not subject to the same health risk as a result of environmental tobacco smoke; or b. A significant number of customers in establishments holding Class "A", "C" or "D" liquor licences wish to smoke and these establishments would suffer a significant loss of revenue if their customers were prohibited from smoking inside the establishments? Answer The compromise the establishments put forward acknowledged that the customers and employees were subject to the same health risk, but that children were not allowed in the one group and they were in restaurants. Also, by getting the restaurants 100% immediately, the largest section by far and the section that children went to, would be covered. That was why it was a reasonable compromise and it proved to be a reasonable compromise as Council accepted it. [13] In his affidavit sworn October 7, 1996, Mr. Earl Manning, Executive Director of the petitioner Restaurant and Food Services Association, deposed: 2. On or about December 8, 1994, Vancouver City Council considered a report from the Medical Health Officer and endorsed, in principle, the objective of smoke free indoor environments, while leaving the date and manner of implementation open for further discussion. 3. In or about the summer of 1995, a number of hospitality groups formed an informal association known as the "Lower Mainland Hospitality Group" for the purpose of presenting a united response to City Council's proposal of imposing a 100 percent smoking ban in the hospitality industry. Members of the Association included the Petitioner, the Restaurant and Food Services Association of British Columbia and the Yukon, the Neighbourhood Pub Owners Association, the Nightclub and Cabaret Owners Association, the Hotel Association, and the Bingo Association. 4. The Chairman and spokesperson of the Lower Mainland Hospitality Group was Bruce Clarke, a hotel owner, and member of the Hotel Association. 5. In the Fall of 1995, the Lower Mainland Hospitality Group took the position that no new restrictions on smoking should be imposed on the hospitality industry. However, in the Lower Mainland Hospitality Group's discussions with the Medical Health Officer of the City of Vancouver, John Blatherwick, it became clear that he was not prepared to recommend to City Council that no restrictions be imposed on the hospitality industry. 6. Consequently each member of the Lower Mainland Hospitality Group informally agreed with the other members that they would develop and put forward a compromise position which could be presented to Dr. Blatherwick. The cabaret, pub and hotel owners indicated that they were prepared to make concessions which included not allowing staff members to smoke on the job, and voluntarily designating some seating as non-smoking. Contrary to the representation made by Mr. Clarke to Dr. Blatherwick, the Restaurant Association was prepared to make fair and reasonable concessions. Members of the Restaurant Association indicated that they were prepared to take steps to improve ventilation and to reduce the size of the smoking sections in restaurants. 7. In or about January, 1996, Bruce Clarke and Dr. Blatherwick negotiated a compromise proposal in which smoking would be prohibited in restaurants, but hotel lounges, pubs and cabarets would only be required to create a non-smoking section. This compromise had never been discussed with members of the Restaurant Association, was not acceptable to members of the Restaurant Association, and was negotiated by the Lower Mainland Hospitality Group despite the understanding that the Group would present a united position to City Council. 8. Prior to the compromise being negotiated between the Lower Mainland Hospitality Group and Dr. Blatherwick, I do not recall any proposal being put forward on the basis that it advanced a special goal of providing special protection to children from environmental tobacco smoke because children were especially at risk. Prior to the compromise being reached, the position taken had always been that the smoking By-Law was necessary to protect the health of all people in the City of Vancouver, including customers and employees in the hospitality industry. 9. As a hotel owner, Mr. Clarke's own establishment is exempted from the complete ban on smoking under the By-Law pursuant to the "compromise" he negotiated with Dr. Blatherwick. [14] The guide to Smoke Free By-Law, issued by the respondent's Health Board, Environmental Health Division, states: Purpose Vancouver's Health By-Law restricts smoking in all indoor public places. This pamphlet is designed to inform Vancouver residents and businesses how the By- Law affects smoking in the workplace and publicly accessible areas. Background In May, 1996, Vancouver city Council amended it's Health By-Law to completely prohibit smoking in all indoor public placed where minors have access. Restrictions were also placed on all adult-only oriented establishments. It is likely that this is an interim step towards all indoor public places becoming smoke-free by the year 2000. Why Restrict Smoking Environmental Tobacco Smoke. Medical evidence is increasing about the harmful effects of second-hand (exhaled) smoke and sidestream smoke (the smoke from an "idle" cigarette, cigar or pipe). The effects on the smoker have been known for decades. However, it is now clear that people become ill, diseased and die prematurely due to consistent involuntary exposure to the dangerous gasses and chemicals in tobacco smoke. Environmental tobacco smoke is responsible for increased rates of respiratory infections, heart disease and lung cancer. Reducing exposure to environmental tobacco smoke will protect workers; health and significantly improve children's health. Youth smoking rates are alarmingly high. Exposure to smoking and tobacco products influences our youth. Restricting smoking in public and in workplaces is effective modelling healthier lifestyles for youth. V. The Charter [15] The sections of the Charter relevant to my consideration of the issue in this application are: 2. In this Act, and in any By-Law passed pursuant to this Act, unless the context otherwise requires, "Regulating" includes authorizing, controlling, limiting, inspecting, restricting, and prohibiting; ... 189. The Council may provide for the good rule and government of the city. ... 199. The Council, in addition to the powers specifically allotted to it, shall have power to do all such things as are incidental or conducive to the exercise of the allotted powers. ... 203. Where and to the extent that the Council is authorized to regulate, license, or tax persons carrying on a business, trade, profession, or other occupation, it shall have the power to (a) divide and subdivide such businesses, trades, professions, or other occupations into as many groups or classes as it sees fit, having regard to the number of persons engaged therein, the extent of the accommodation offered to the public, or on such other basis as the Council may think expedient; (b) differentiate and discriminate between groups or classes both as to the amount of any licence fee or tax to be paid and the terms and conditions under which any group or class may or may not carry on the business, trade, profession, or other occupation; (c) define any business, trade, profession, or other occupation; (d) prohibit, but only by the unanimous vote of the members present. ... 330. The Council may make By-Laws Health By-Laws (a) for providing for the care, promotion, and protection of the health of the inhabitants of the city and for preventing the spread of contagious, infectious, or other disease, and, for that purpose, for regulating, controlling, and restricting persons and their activities; VI. The Petitioners' Position [16] The settled law is that municipal By-Laws are invalid if a municipality draws distinctions between classes of persons where such distinctions are not authorized, expressly or impliedly, by the municipality's enabling statute. Petitioners' counsel argued that the By-Law is invalid because it was the result of a political decision that in effect compromised the achievement of the purpose of enacting the By- Law, which was aimed at protecting the public, most particularly hospitality industry workers, from ETS. He claimed that by drafting the By-Law to achieve a compromise result, the respondent exceeded its powers under the Charter because it does not have the power, either expressly, or impliedly, to draw the distinction it did. He claimed that the respondent does not have the power to put into effect a political compromise and has to treat all eating and drinking establishments the same way. [17] On the point of implied authorization to discriminate, petitioners' counsel relied heavily on the decision in Greenbaum v. The Queen ex rel. Andrews (1993), 100 D.L.R. (4th) 183 (S.C.C.), where at pp. 197-198 Iacobucci J. said: For the reasons given by this court in R. v. Sharma, Metro By-Law 97-80 and City of Toronto By-Law 618-80 are also ultra vires the municipalities on the basis that they contain discrimination, in the municipal law sense, not authorized by provincial enabling legislation. The respondent and the intervenor in the case at bar raised two additional arguments with respect to implied authority for the discrimination. First, the respondent advanced s. 308, para. 3 of the Municipal Act as authorizing the discrimination in the licensing By-Laws. That section of the Municipal Act, empowers municipalities to pass By-Laws permitting people "to place, construct, install, maintain and use objects in, on, under or over sidewalks and highways under its jurisdiction, [and] to permit any person to make, maintain and use areas under and openings in the highways and sidewalks" and to charge fees for this use. Section 308, para. 3(b) provides that these fees are enforceable in the same manner as taxes that are due and payable. The respondent argues that the only taxes under the control of municipalities are realty taxes. The respondent therefore submits that the reference to making charges enforceable in the same manner as taxes shows that the legislature anticipated a legal distinction between the rights of abutting store owners who pay realty taxes and street vendors who do not. I do not agree. Simply put, that the legislature wished to give teeth to the municipalities' enforcement power over charges for sidewalk use cannot be read as implied authority to discriminate between property owners and free- standing street vendors. Secondly, the respondent and the intervenor argued that there is implied authority for the discrimination in that the municipality was given a general power to regulate and that it can accordingly make reasonable classifications within that regulatory scheme. The decision of this court in Montreal (City) v. Arcade Amusements Inc, supra, disposes of this argument. As Beetz J. wrote at p. 195: Counsel for the City emphasized the amplitude of the City's general powers...However, as can be seen on the face of these provisions, none of them expressly empowers the City to make distinction based on age. It may well be that an authorization to make distinctions based on the age of children and adolescents would be useful to the City in exercising its ... power to adopt policing By-Laws; but however useful or convenient such an authorization might be, I am not persuaded that it is so absolutely necessary to the exercise of those powers that it would have to be found in the enabling provisions, by necessary inference or implicit delegation. I am not persuaded that, in the case at bar, to draw a distinction between free-standing vendors and owners/occupants of abutting property was absolutely necessary to the exercise of the licensing power such that the power to draw such a distinction must be inferred from the enabling legislation (s. 90 of the Municipality of Metropolitan Toronto Act) by necessary inference or implicit delegation. (counsel's emphasis) [18] The petitioners do not dispute that the respondent has the power to enact health By-Laws to protect its citizens, but said that this purpose has to be its real purpose and therefore to meet the test set out in Greenbaum, supra, the respondent must establish that children are especially vulnerable to ETS. Petitioners' counsel insisted, that it is quite clear that the main purpose of enacting the By-Law was not to protect children, but rather to protect the public generally and especially those most at risk, hospitality industry workers. He said that the option chosen, a distinction that drew a line between eating and drinking establishments holding licenses that either permit or deny entry to children, was just a convenient way to enact the political compromise. [19] Petitioners' counsel contended that children in this instance are not a particularly vulnerable group. He agreed that, generally, children are more vulnerable because of the cumulative effect of inhaling ETS, but viewed specifically, in the context of this By-Law, it cannot be established that children are more vulnerable. He argued the most vulnerable group to long term ETS exposure are the hospitality industry workers and the next most vulnerable group are adults who are more frequent patrons of eating and drinking establishments, including restaurants. [20] As well, counsel argued that the By-Law does not meet the alleged purpose because it is under-inclusive in that smoking is permitted in some eating and drinking establishments where children are permitted, such as bingo halls, and over-inclusive because if the real purpose is to protect children then the By- Law would have been drawn to deal only with places where children frequent. However, the By-Law also deals with a wide scope of public places, such as adult oriented buildings and liquor stores. [21] Counsel argued further, that the best proof that the distinction was not "absolutely necessary" is the fact of total bans on smoking legislated in other jurisdictions. On July 2, 1996, the Municipal Council of the City of Toronto passed a By- Law No. 1996-0345 which, effective January 1, 1997 prohibits smoking in restaurants and entertainment facilities which includes dance halls, dance floors, stages, tele-theatres, gambling, discotheque, billiard or pool rooms, dinner theatres, supper clubs, night clubs, cabarets or entertainment lounges. In By-Law No. 2400 the capital regional district amended its clean air By-Law No. 2217, 1994 effective September 1, 1996 by limiting the smoking area in restaurants, licenced premises, bowling alleys to 40% of the seating area. In By-Law No. 2401 which takes effect on January 1, 1999, the Capital Regional District prohibits smoking generally in any school yard or inside any part of a building, structure or vehicle or passenger conveyance, except in a private residence or a private vehicle. [22] The petitioners also argued that, unless specifically authorized, the respondent is not entitled to draw distinctions based on age. Counsel referred to the decision in City of Montreal v. Arcade Amusements Inc. (1985), 18 D.L.R. (4th) 161 (S.C.C.). In this case the Supreme Court of Canada ruled that a Montreal By-Law that prohibited the presence of persons under the age of 18 years in amusement halls was invalid because it was discriminatory. At pp. 187 to 190, the Court said: VI - SECTION 8 OF THE By-Law The argument of illegality made by respondents against s. 8 also has two branches. The first is that s. 8 contravenes the rule of administrative law that the power to make By-Laws does not include a power to enact discriminatory provisions unless the authorizing legislation provides the contrary. ... Whether or not they refer to the opinion of Lord Russell of Killowen, the number of cases in which the courts have invalidated By-Laws in accordance with the neutral rule of discrimination applied by him is very high and simply cannot be counted. Furthermore, this rule was applied before Kruse v. Johnson. However, other separate but cumulative causes of invalidity may be added to this rule, such as bad faith or in fiscal matters a departure from the principle of equality of taxation. Only a few examples of By-Laws invalidated for unauthorized discrimination need be mentioned. Distinctions such as the following have led to the By-Laws based on them being held invalid: - a distinction between residents and non- residents in the granting of permits: Jonas v. Gilbert (1881), 5 S.C.R. 356; Paulowich v. Dankochuk, [1940] 2 D.L.R. l06, 73 C.C.C. 273, [l940] l W.W.R. 537 sub nom. R. v. Paulowich, cited by L.-P. Pigeon, supra; Re Ottawa Electric R. Co. Ltd. and Town of Eastview, [1925] l D.L.R. 53, 56 O.L.R. 52; R. ex rel. St. Jean v. Knott, [l944] 3 D.L.R. 726, 82 C.C.C. 67, [1944] O.W.N. 432; - a distinction in respect of closing hours between mariners whose ships were in port and other customers of a dealer: R. v. Flory (1889), 17 O.R. 715; - a distinction between dogs weighing over 35 lbs and those weighing less for purposes of muzzling or putting a chain: Phaneuf v. Corporation du Village de St. Hugues (1936), 61 Que. K.B. 83; in this case the unauthorized distinction was aggravated by the intention to affect one person in particular, but the general principles of a distinction unauthorized by law were cited with approval by Chouinard J., speaking for this court, in City of Montreal v. Civic Parking Center Ltd. et al., [l981] 2 S.C.R. 54l at p. 559, 4l N.R. 393; - a distinction between businesses of the same class for the purposes, inter alia, of setting closing hours: S.S. Kresge Co. Ltd. v. City of Windsor (l957), 7 D.L.R. (2d) 708, [l957] O.W.N. 154; City of Calgary v. S.S. Kresge Co. Ltd. (l965), 52 D.L.R. (2d) 6l7, 5l W.W.R. 747; R. v. Varga (l979), l06 D.L.R. (3d) l0l, 27 O.R. (2d) 274, 5l C.C.C. (2d) 558; Enterprises Anicet Gauthier Inc. v. Ville de Sept-Illes, [l983] Que S.C. 709. The distinction based on age, and in particular on the age of children, adolescents and minors, has also attracted the attention of municipal legislators and the courts in a relatively large number of cases. To the best of my knowledge, in all these cases except for the judgment at trial in the case at bar and another case to which I will return, it was held that such a distinction is ultra vires unless it is authorized by the enabling statute. Moreover, the almost consistent case-law on this point precedes Kruse v. Johnson, supra. [23] Petitioners' counsel submitted that in each case the court must look at the regulatory power being exercised and if there is no express power to draw the distinction then the court must ask why the municipality is drawing the distinction and whether it is absolutely necessary to the exercise of its power. If not, and the distinction is based on a convenient or politically expedient foundation, then the enactment will be struck down as ultra vires. [24] Further, he argued that if the respondent supports the distinction on the basis of age, then the City of Montreal case, supra, makes it clear that the respondent cannot discriminate on this basis. He submitted that the only power to discriminate on the basis of age that can necessarily be inferred to exist in section 330(a) is the power to make special rules that address health concerns that are specific to the age category chosen by the City. Thus, he contended, it might be said that the City can adopt special health rules with respect to children in order to address diseases or health problems that are specific to children or to which children are especially vulnerable. He suggested that there is nothing to suggest that the health hazards associated with ETS fall into this category and he was not aware of any material put before City Council that would indicate that children are especially vulnerable to health problems caused by ETS. Therefore,he claimed, the respondent does not have the authority to draw distinctions based on age. [25] Petitioners' counsel conceded that if the respondent can establish that children are the group at risk as being especially vulnerable to ETS, and that to exercise its general power to promote the health of its citizens it is "absolutely necessary" to take steps to protect children, then in such instance the exercise of its power to discriminate in order to protect children can be fairly implied into the statute. But, he said, unless the respondent can support this proposition, then the distinction contained in the By-Law cannot be upheld as intra vires. [26] The petitioners are prepared to assume that there are health hazards associated with tobacco smoke, including ETS, and that these health hazards are sufficient to enable the respondent to pass some types of By-Laws to restrict smoking in public places pursuant to its powers under section 330(a). However, the petitioners contended that the respondent has no authority to draw a distinction in the By-Law which creates a different standard of protection for the health of children than for adults because the Charter does not expressly or impliedly authorize such a distinction. Second, the petitioners submitted that even if the respondent has the authority to draw a distinction for the purpose of promoting the health of children, the distinction drawn in the By-Law was not done for this purpose but was done to advance non-health objectives such as protecting the perceived economic interests of the owners of eating and drinking establishments holding Class A, C and D liquor licences. [27] The petitioners seek an order that the respondent has not met the test for drawing the distinction between eating and drinking establishments and that the By-Law should therefore be quashed, with a direction to the respondent that it has to treat all eating and drinking establishments equally for the purpose of imposing any ban on smoking. VI. The Respondent's Position [28] Respondent's counsel submitted that the respondent has the power to enact By-Laws to protect the health of its citizens and because bad faith is not in issue, the fact that the respondent acted out of political motivation is not a basis for attacking the By-Law. He cited Re Wall & Redekop Corp. Ltd. and City of Vancouver 47 D.L.R. (3d) 155, where at pp.158-159 Farris C.J.B.C. said: The facts here do not support an attack based on bad faith. The City Council acting pursuant to powers granted by the Legislature and acting admittedly in what it conceived to be the public interest, decided to rezone the property. This exercise of legislative authority, on the facts of this case, cannot be impugned on the basis of bad faith: see Re Howard and City of Toronto, [1928] 1 D.L.R. 952 at p. 956. 61 O.L.R. 563, where Middleton, J.A., said: Certain elementary principles must be kept in mind when dealing with questions such as those here raised. A municipal council is a legislative body having a very limited and delegated jurisdiction. Within the limits of its delegated jurisdiction, and subject to the terms of the delegation, its power is plenary and absolute and in no way subject to criticism or investigation by the Courts. When the municipal council goes beyond its limited jurisdiction or seeks to ignore conditions precedent to the exercise of the power that has been conferred upon it, it is the duty of the Courts to interfere and quash the municipal By-Law for illegality. Beyond that the Courts cannot go. The question is always one of the right of the municipality to determine the question; the justness or fairness of the action of the council is quite beside the mark. If it is shown that the municipal councillors have abandoned all honest attempts at legislation and are corruptly seeking by the prostitution of their legislative powers to advance the ends of some member of the council or some favoured individual, the Courts may also interfere. Such a case was Pells v. Boswell, 8 O.R. 680. Re L'Abbe & Blind River (l904), 7 O.L.R. 230, contains a most learned and valuable exposition of this branch of the law by Boyde, C. In the present case there is no suggestion that the action of the members of the Council was founded on fraud or oppression or improper motives or what it was seeking to attain private ends or the gratification of private desires. I cannot agree with the submission that it is bad faith for one Council in pursuance of what it considers to be the public interest to rezone a piece of property which had previously been rezoned by another Council. I would dismiss the appeal. [29] Further, counsel submitted that the City of Montreal, line of authorities does not apply because the By-Law does not attempt to regulate children. Counsel said that there are no authorities applying the rule against discrimination to the incidental effect of a regulation, as opposed to a regulation itself. That is, the By-Law is not aimed at regulating the behaviour of children, but rather incidentally draws on an age- based distinction contained in other legislation. [30] With respect to the connection between the By-Law and children, respondent's counsel pointed to the affidavit evidence of Dr. Blatherwick (dealt with later in these reasons), wherein he opined that children are particularly vulnerable to ETS and that the inhalation of smoke inhibits lung development increasing the risk of respiratory disease in later life. Also, counsel noted that in his affidavit Dr. Blatherwick agreed with the statements made in the Guide to Smoke Free By-Law. [31] As well, counsel referred to the MHO's Policy Reports dealing with the impacts on children and youth from ETS. He contended that while the By-Law enacted was not the option that the MHO recommended, nevertheless it was a lawful exercise of the respondent's power to regulate health, as authorized by the Charter. He argued that in deciding whether a By-Law discriminates, one must be careful not to confuse discrimination with the partial exercise of a power. He submitted that municipalities have the authority to partially exercise a power, citing Donald v. Whitby, [1949] 1 D.L.R. 361 (Ont. C.A.) and Commodore Grill v. Dunville, [1943] 4 D.L.R. 183 (Ont. C.A.). [32] Further, counsel argued that section 330(a) must be construed in the context of the other sections of the Charter, namely sections 2, 189, 199 and 203. [33] Counsel submitted that if the court accepts that the legitimate purpose of the respondent in enacting the By-Law was to protect the health of children, albeit the By-Law catches others in the net, to the extent that the distinction in the By-Law can be characterized as being discriminatory, firstly, section 203 specifically authorizes such discrimination; and second, such discrimination is permitted by section 330(a) because the power to discriminate in such circumstances can be fairly implied into the section. [34] In reply to the respondent's position, petitioners' counsel said that the fact that the respondent made a decision out of political motivation does not render the decision invalid, if the respondent has the power to make the decision. Counsel said the court should not start from the premise that the respondent has all powers unless excluded. Rather, the authorities provide that the court must start from the proposition that the respondent only has the powers granted to it by legislation. Hence, the only issue here is whether the respondent had the power under section 330(a) to draw the distinction it did. Counsel argued that there is no express power in section 330(a) to create a distinction based on political motivation. The distinction can only be founded on health reasons, which, he said, do not exist here. Counsel argued that section 203 does not give the respondent the right to draw a distinction for the purpose of regulating health that does not in fact serve a health purpose. [35] The petitioners stressed that the respondent decided to legislate in a way that created an uneven playing field. They are of the view that the respondent must treat all eating and drinking establishments equally and in adopting any measures to target smoking the respondent must advance a clear health purpose. In their contention, if the respondent identified a concern with ETS in public places, then the respondent must legislate any measures aimed at dealing with ETS on an equal basis. VII. Reasons [36] In my opinion, the distinction drawn in the By-Law was expressly authorized by the Charter. [37] It is well established that a municipality, as a statutory body, is restricted to doing only those things that it is enabled to do by its enabling legislation. In Shell Canada Products Ltd. v. Vancouver (City) (1994), 110 D.L.R. (4th) 1, the Supreme Court of Canada considered a resolution by Vancouver City Council which restricted the City from doing business with the applicant company because of the applicant's parent company's commercial involvement in South Africa. In considering the reviewability of a municipal by-law, Sopinka J., for the majority, concluded at pp. 11-12: It follows that the exercise of a municipality's statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires. Normally this is done by a motion to quash or a declaration of invalidity with respect to the act of council which is impugned. The authorities referred to in argument do not support the contention that the exercise of business or corporate powers is immune to review. . . . Moreover, there does not appear to be any valid policy ground for providing such immunity. There is good reason to encourage municipalities to act within their statutory powers. An absence of judicial review would leave some ratepayers without an effective remedy. The suggestion that the only remedy is at the polls is of no value to the minority who would be left with no remedy and council could continue to enlarge its statutory powers as long as it was able to retain its majority support. The public policy in favour of restricting a municipality to its statutory powers exists as much for the minority as for the majority. [38] In Greenbaum, supra, Iacobucci J. considered the approach courts should take in reviewing impugned by-laws. He stated at pp. 192-194: Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by provincial statute. . . . As Davies J. wrote in his reasons in City of Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239 at p. 249, with respect to construing provincial legislation enabling municipal by-laws: In interpreting this legislation I would not desire to apply the technical or strict canons of construction sometimes applied to legislation authorizing taxation. I think the sections are, considering the subject matter and the intention obviously in view, entitled to a broad and reasonable if not, as Lord Chief Justice Russell said in Kruse v. Johnson, [[1898] 2 Q.B. 91] at p. 99, a "benevolent construction," and if the language used fell short of expressly conferring the powers claimed, but did confer them by a fair and reasonable implication I would not hesitate to adopt the construction sanctioned by the implication. Accordingly, a court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has empowered to pass a certain by-law. As Ian MacF. Rogers has noted in The Law of Canadian Municipal Corporations, 2nd ed. (Toronto: Carswell, 1971), p. 388, a somewhat stricter rule of construction than that suggested above by Davies J. is in order where the municipality is attempting to use a power which restricts common law or civil rights. . . . Therefore, municipal by-laws are to be read to fit within the parameters of the empowering provincial statute where the by-laws are susceptible to more than one interpretation. However, courts must be vigilant in ensuring that municipalities do not impinge upon the civil or common law rights of citizens in passing ultra vires by-laws: see, e.g., Merritt v. City of Toronto (1895), 22 O.A.R. 205 at p. 207. [39] The authorities make clear that a by-law cannot be challenged on the basis that it is unreasonable or not good public policy. The courts will defer to the municipal council in its determination of the public interest. The court will only intervene if the by-law is beyond the powers of the municipal council. In interpreting the enabling statute, the court will generally allow a "benevolent construction" of that statute to allow the municipality to have powers which can be reasonably inferred from the language of the statute. However, the courts recognize that the municipality is a creature of statute and will not allow the municipality to exercise powers which are clearly not conferred by its enabling legislation. [40] Courts have long observed a rule that "the power to enact by-laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary": City of Montreal, supra, at p. 188. Recent cases, including City of Montreal, Greenbaum, and Shell, have made it clear that By-Laws which discriminate will be invalid even if the discrimination is neutral. That is, even if the distinction drawn is "perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice": City of Montreal, supra, at p. 189. [41] A By-Law which makes any distinction between businesses or classes of businesses will therefore be invalid unless its enabling statute explicitly or implicitly so authorizes. One must therefore consider whether the statute includes any authorization to discriminate. [42] In Greenbaum, supra, and its companion case R. v. Sharma (1993), 100 D.L.R. (4th) 166 (S.C.C.), there was considerable discussion about whether there was an implied authorization in the Ontario Municipal Act to discriminate between street vendors who did and did not own adjacent property. The issue was raised in Sharma, supra, as to whether there was any express authorization to discriminate in that Act. The basis of this argument was s. 310: 310. By-laws may be passed by the council of every local municipality, (a) for leasing or licensing the use of untravelled portions of highways under the jurisdiction of the council, except highways that are extensions or connecting links of the King's Highway, to the owners or occupants of adjoining property for such consideration and upon such terms and conditions as may be agreed (b) for regulating and controlling the use, including the use for parking purposes, of untravelled portions of highways under the jurisdiction of the council that are not extensions or connecting links of the King's Highway, which are leased or in respect of which a license is granted under clause (a). [43] Iacobucci J. could not find anything in the wording of this section which authorized the city to differentiate between street vendors in the way that the impugned By-Law did. [44] In City of Montreal, supra, at p. 195, reference was made to two sections of the Charter of the City of Montreal which allowed the city council to enact by-laws for the purpose of protecting children. These sections, Article 520(6) and (7) limited the authorization of discrimination on the basis of age to very specific purposes. There was no argument raised which alleged that the Montreal Charter expressly authorized discrimination for general municipal purposes. [45] In Shell, supra, at p. 17, Sopinka J. found that the impugned resolutions were discriminatory against corporations doing business in South Africa as well as being discriminatory against Shell vis-a-vis Chevron and other corporations doing business in South Africa. He considered the discrimination to be based on considerations outside the scope of Council's legitimate concern. He stated at p. 18: Discrimination for commercial or business reasons is a power that is incidental to the powers to carry on business or acquire property. These activities could not be carried on without this power. Different considerations apply to discrimination for non- commercial, non-business reasons that are not grounded in promoting the health, safety or welfare of the inhabitants of the city. It cannot be said that considerations relating to the political policy of a foreign state are so essential to the exercise of enumerated powers as to be implied. [46] As section 203 of the Charter expressly authorizes the Council to classify and discriminate, the considerations will be different between the instant case and the cases decided under other enabling statutes. In the instant case, the focus must be on whether the Council has acted for a legitimate municipal purpose, and whether it has discriminated in accordance with its express powers. [47] In the By-Law, the respondent created two distinct classes of eating and drinking establishments for the purposes of regulating smoking in indoor public places. The plain and literal meaning of section 203 is that the respondent has the power to discriminate between classes of businesses where the respondent is authorized to regulate persons carrying on a business. Section 330(a) empowers the respondent to make By- Laws for "providing for the care, promotion, and protection of the health of the inhabitants of the city...and for that purpose, for regulating, controlling and restricting persons and their activities." A very broad authorization indeed, particularly when read in the context of section 203, and the other sections of the Charter referred to above. [48] I agree with respondent's counsel that if the purpose of the By-Law is a legitimate health purpose then the respondent had the authority to draw the distinction it did and its political motives cannot operate to invalidate its authority to enact the By-Law. [49] I am satisfied that the purpose of the By-Law is a legitimate one. My conclusion is reached on the basis of the material placed in evidence on this application. [50] In the MHO's September 6, 1995 Policy Report on the subject of smoke-free indoor air By-Law, he dealt with the impacts on children and youth. In his Policy Report dated February 16, 1996, on the same subject, he mentioned as a "key principle" "The elimination of the involuntary risk of exposure to ETS in our young people is recognized as an effective priority measure;" In this same document, under the heading "Impacts on Children and Youth", he stated, "Clearly the emphasis on eliminating the exposure of our youth to ETS in public venues is one that should have a major positive impact on the long term health of our youth..Any reduction in smoking prevalence amongst youth would be welcomed...". In his conclusion, the MHO said, "Although there still remain some strong feelings and concerns, especially on the part of the restaurant association, staff have concluded that what is presented in this report forms a reasonable approach, based firmly on the protection of our children's health. [51] In the affidavit of Dr. Blatherwick, sworn September 30, 1996, he deposed: 5. That I have read literature on the effects of second hand (exhaled) smoke and sidestream smoke (the smoke from an idle cigarette, cigar or pipe) including papers and data published by the B.C. Ministry of Health, Research and Respiration Branch (1993), a paper published by the U.S. Environmental Protection Agency, Respiratory Health Effects of Passive Smoking (1992) and the Journal of American Medical Association Passive Smoking and Heart Disease 1995. 6. That based on my study of the material relating to the effects second hand smoke and sidestream smoke, together referred as Environmental Tobacco Smoke, I have concluded that persons subjected to Environmental Tobacco Smoke face a significantly higher risk of respiratory and heart disease. 7. That I have reviewed the material attached to this Affidavit as Exhibit "A". 8. That the material set forth in Exhibit "A" under the heading "Why Restrict Smoking" corresponds with opinions I have formed from my study of the effects of Environmental Tobacco Smoke. In addition to the statements contained there, it is my opinion that children are particularly vulnerable to such smoke because the health risk increases as the cumulative inhalation of such smoke increases. The inhalation of smoke inhibits lung development increasing the risk of respiratory disease in later life. 9. That I have reviewed the material attached to this Affidavit as Exhibit "B". The statements made therein are accurately based on the literature referred to at the bottom of page 1. 10. That as Medical Health Officer of the City of Vancouver, I recommended to the Council of the City of Vancouver that they enact By-Law No. 7560. In doing so, I had concluded that I was contributing to the public health of the City of Vancouver because if enacted it would reduce the number of illnesses and death which would be caused by Environmental Tobacco Smoke. 11. While from a purely public health point of view it would have been preferable to include casinos and have liquor establishments holding Class "A", "C" or "D" licenses in the prohibition, I had, after discussing the matter with a number of knowledgable people and considering representations made at public hearings, concluded that such a proposed By-Law would not, at that time, receive the public support necessary to obtain its enactment and effective administration and enforcement unless similar By-Laws were passed in the surrounding Municipalities which was extremely unlikely. Accordingly, I recommended enactment of By-Law No. 7560 as it presented what was attainable in the context of public health. The compromise By-Law covered the majority of the service industry workers and the majority of adults and children visiting the service industry establishments. (my emphasis) [52] As well, in his response to the petitioners' questions relating to paragraph 11 of his affidavit, Dr. Blatherwick said that, "by getting the restaurants 100% smoke-free, the section that children went to would be covered and that was why he considered the distinction a reasonable compromise." [53] The respondent's Health By-Law #6580 sets controls and limits on where persons can smoke in indoor public places and the workplace. The By-Law amended By-Law #6580 to expand the types of facilities where smoking would be prohibited. While the MHO, in his September 6th Policy Report recommended that the respondent prohibit smoking in all indoor public establishments, based on the evidence of health concerns relating to the impact of ETS on children and youth, it was entirely within the respondent's authority, when enacting the By-Law, to reach a compromise and draw the distinction it did in the By-Law by prohibiting smoking in restaurants only, leaving certain other eating and drinking establishments unregulated. [54] The respondent was not bound to adopt the recommendation initially favoured by the MHO. The fact that in choosing the option it did the respondent created an uneven playing field between different classes of eating and drinking establishments, and the fact that economic consequences may flow from this distinction, cannot operate as grounds for setting aside the By-Law. "The validity or otherwise of the by- law is not to be determined by the economic consequences thereof upon any particular licensee unless it appears that the effect of the by-law amounts to a prohibition to carry on a lawful business." See Re City of Vancouver Licence By-Law 4957 (1976), 69 D.L.R. (3d) 400 (S.C.) at p. 402. (On appeal, the Court of Appeal dismissed the appeal. See (1978), 5 B.C.L.R. 194. However, in dismissing the appeal the court did not challenge the above principle). [55] Further, having concluded that the respondent's health purpose was legitimate, the respondent's political motives in arriving at a compromise on prohibiting smoking in eating and drinking establishments is not a factor upon which the court can intervene to set aside the By-Law. As stated in the oft- cited Ontario Court of Appeal decision, Re Howard and City of Toronto, [1928] 1 D.L.R. 952 at p. 965: What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limits of its powers, is not open to review by the Court: Jones v. Tuckersmith, 23 D.L.R., at p. 565; Re Toronto (1905), 9 O.L.R. 562, per Street J., at p. 565; Re Mills & Hamilton (1907), 9 O.W.R. 731, per Anglin, J., at p. 733. ... The question of the relative balance of convenience or detriment to different persons is a matter which the Legislature has committed to the consideration and determination of the municipal council, and their judgment on that question, if bona fide exercised in what they believe to be the public interest, will not be interfered with by the Court: Re Inglis & Toronto, supra; Re Mills & Hamilton, supra. VIII. Conclusion [56] I find that the respondent acted under its authority in section 330(a) for a legitimate purpose of protecting the health of children and youth and drew the distinction between different classes of eating and drinking establishments in accordance with the express power contained in section 203. In the result, the petition is dismissed with costs to the respondent. "Cohen J."