Date: 19990201 Docket: CC981051 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CITY OF VANCOUVER APPELLANT AND: DOLL & PENNY'S CAFE LTD. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE THACKRAY Counsel for the Appellant: P. Scheir and T. Zworski Counsel for the Respondent: D. Evans and V. Marino Place and Date of Hearing: Vancouver, B.C. January 25, 1999 [1] Doll & Penny's Cafe Ltd. was charged with two breaches of Vancouver's no-smoking by-law. Those offences are set forth in the Particulars of Acquittal as follows: On or about August 3, 1997, being the proprietor of a restaurant at 1167 Davie Street, Vancouver, British Columbia, unlawfully did permit a person to smoke in said restaurant other than as provided for in section 6.1 of City of Vancouver By-law 6580, contrary to the form of the enactment in such case made and provided. Sections 6.2 and 9.3l of City of Vancouver By-law 6580. [2] The second count is worded the same but for the date that is August 7, 1997. [3] These charges were dismissed by justice of the peace P. Lim in The Provincial Court of British Columbia. This appeal does not involve a challenge to the provision that no person shall smoke in a restaurant. That issue was determined in The Restaurant & Foodservices Assn. (British Columbia) v. Vancouver (City) 1996, 36 M.P.L.R. (2d) 1 (B.C.S.C.) appeal at 1998, 43 M.P.L.R. 170 (B.C.C.A.). Therein it was held that the by-law, and in particular s. 6.1, is within the powers granted to the City by the Vancouver Charter. Section 6.1 is directed at the smoker and reads, in part, 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, [4] This appeal is as to the decision of the justice of the peace that section 6.2 is invalid. This section is directed at proprietors and reads as follows: 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 6.1. Factual Background [5] Ms. Shakti Duggal testified that on August 3, 1977, while she and a friend were customers in the restaurant, she observed several people smoking. She did not make any complaint to the management but phoned an environmental health officer for the City. [6] Mr. Robert D. Fleming's employment was described by him at the trial but the transcript records much of his evidence as "indiscernible". However, it appears that he was some form of inspector in the South Fraser Health Region working for the Vancouver/Richmond Health Board. On August 7, 1997, he conducted a "general inspection" of the restaurant. He observed a customer smoking and engaged the manager, Mr. Rick Jupiter, in conversation. Once again, the transcript is not clear, but it makes it appear that Mr. Fleming testified that he requested the manager to have the smoker extinguish his cigarette. In response Mr. Jupiter informed Mr. Fleming that the owner allowed smoking. [7] Mr. Fleming prepared a Food Establishment Report Form in which he recorded his observations and conversation. This form was filed as evidence and the conversation was similarly admitted. However, the magistrate, in his written reasons, stated that the words of Mr. Jupiter suggesting that the owner allowed smoking, were "not admitted for the purpose of establishing the intent of the owner but as a statement made by the manager". [8] Mr. Jupiter testified that he worked as the manager of the restaurant. He introduced into evidence a document entitled "Smoking Policy Issue -- December 1, 1996". He described this as being the smoking policy for all of the servers and kitchen staff. It reads as follows: DOLL & PENNY"S CAFE SMOKING POLICY ISSUE -- DECEMBER 1, 1996 TO OUR KNOWLEDGE THE INITIAL ROUND ON THE SMOKING POLICY BAN WAS LOST. HOWEVER, IT IS OUR UNDERSTANDING THAT IT IS BEING APPEALED. THIS IN FACT IS THE CASE. THEREFORE, EFFECTIVE DECEMBER 1, 1996 PLEASE ENSURE YOU MAKE YOURSELF FULLY AWARE OF THE FOLLOWING. 1. ASHTRAYS ARE NOT TO BE PLACED ON TABLES. 2. THE NO SMOKING SIGNS WILL BE PLACED OUT AS REQUIRED BY THE BY-LAW. 3. WE WILL NO LONGER DESIGNATE SMOKING OR NON- SMOKING AREA. SO, DO NOT ASK THE CUSTOMER AT THE DOOR. 4. IF THE CUSTOMER ASKS AT THE DOOR OR IF THE CUSTOMER ASKS AFTER THEY HAVE BEEN SAT, IF WE ALLOW SMOKING, YOU WILL ADVISE THE CUSTOMER AS FOLLOWS: DO NOT SAY ANYTHING ELSE EXCEPT THE FOLLOWING, OR GIVE ANY SPECIFIC OR GENERAL POSITION OF MANAGEMENT. DO NOT GET INVOLVED WITH YOUR OPINION EITHER. - THE CITY OF VANCOUVER HAS A NO SMOKING BY-LAW IN EFFECT FOR RESTAURANTS ONLY - WE ASK YOU TO RESPECT THE BY-LAW AS WE NO LONGER HAVE SMOKING OR NON-SMOKING SECTIONS - IF YOU DO DECIDE TO SMOKE PLEASE REQUEST AN ASHTRAY SO AS NOT TO ABUSE OUR FURNITURE WHEN A NON SMOKING CUSTOMER ASKS WHY SOMEONE IS SMOKING; ADVISE THE NON-SMOKER THAT THE SMOKING CUSTOMER HAS BEEN ADVISED OF THE BY-LAW AND THAT YOU WILL BRING TO THE ATTENTION OF THE SMOKER THAT A NON- SMOKER IS REQUESTING THAT THEY NOT SMOKE. HOWEVER, IF THEY CONTINUE TO SMOKE THERE IS LITTLE THAT YOU CAN DO AND YOU ARE NOT TO PLACE YOURSELF IN ANY JEOPARDY OR DANGER. HOWEVER, YOU CAN OFFER THE NON SMOKING CUSTOMER PHONE NUMBERS OF THE MAYOR'S OFFICE AND THAT OF THE BOARD OF HEALTH IF THEY WISH TO REGISTER A COMPLAINT. IT APPEARS THAT IF A CUSTOMER LIGHTS UP AND REFUSES TO BUTT OUT, WE ARE SUPPOSED TO STOP SERVING THEM. HOWEVER, CITY HALL WILL NOT COMPENSATE US FOR LOSS OF REVENUE. THEREFORE, TO ENSURE THE SURVIVAL OF THE RESTAURANT AND YOUR JOB WE WILL CONTINUE TO PROVIDE SERVICE TO ALL CUSTOMERS. REMEMBER, ALL OF OUR CUSTOMERS ARE IMPORTANT TO ALL OF US. ALL WE CAN DO IS OUR BEST GIVEN THE WORST OF ALL SITUATIONS THAT HAVE BEEN IMPOSED ON US. YOU WILL HAVE TO USE A LOT OF JUDGMENT. WE WILL NEED TO USE DISCRETION AND UNDERSTANDING TO APPEASE ALL SIDES SO THAT THERE IS A WIN WIN FOR ALL OF US. MAYOR PHILIP OWEN 873-7621 ENVIRONMENTAL HEALTH DEPT. 736-3866 [9] Mr. Jupiter testified that the enforcement of the by-law was limited to informing smokers of the by-law. If they continued to smoke they were provided with "a dish so that they wouldn't burn the furniture". [10] As to his conversation with the inspector, Mr. Jupiter remembers being asked about the smoking policy but does not remember being asked to direct a customer to put out a cigarette. Mr. Jupiter testified that August 7, 1997, being the gay pride parade day, was one of the busiest days the restaurant had experienced. The transcript is unclear but suggests that Mr. Jupiter was asked if he saw anyone smoking in the restaurant that day. [11] The transcript then contains the following: A. Yes, I did. Q. What did you do? A. I don't recall if I asked them to put it out, but I do recall giving them dishes for the ashes. [12] In compliance with the restaurant's smoking policy Mr. Jupiter never told customers that they could not smoke in the premises. The incidence of smoking in the restaurant was up to 40 times on each of his shifts. Mr. Jupiter would tell them that the City of Vancouver had a no-smoking by-law for restaurants. However, he never asked smoking customers to leave the premises. He did ask loud, vulgar and offensive customers to do so. He testified that if a person came into the restaurant and produced alcohol he would ask the customer to leave the premises. Similarly, if a person came in with a dog Mr. Jupiter would either have the dog removed or tell the customer to leave. [13] Mr. Steven W. Bauer is the vice-president of operations for Doll & Penny's Cafe Ltd. He wrote the policy statement set out in these reasons. He testified that the staff was given training as to how to handle customers who are inebriated and harassing other customers. They were instructed not to serve such customers and to remove them from the premises. If a customer was intoxicated but not harassing other customers, the training was to refuse service. Similarly, if a customer came in with a dog the customer was to be asked to leave. [14] However, if a customer was smoking it would be, in the opinion of Mr. Bauer, unreasonable to refuse food service because "to refuse the food service would risk our licence". He testified that if he phoned the police to come and remove a smoking customer "I will be the one that gets charged, not the individual". DISCUSSION [15] The learned magistrate said that defence counsel had "put forward three propositions". Those were that the by-law is invalid as an improper delegation of enforcement, that it is invalid because of vagueness and that the restaurant discharged its obligation. He held that the cafe's Smoking Policy Issue did "not constitute compliance with the by-law". As to vagueness, the justice of the peace held "that this by-law is not void for vagueness". [16] That left for determination the issue of illegal delegation of enforcement. The reasons for judgment read as follows on this issue: In this case it is clear that Council expects Doll & Penny's to put this by-law into effect by carrying out their commands. The City has not submitted that they have the power to delegate enforcement therefore I find s. 6.2 of By-law 6580 invalid due to improper delegation of enforcement. [my underlining] [17] It is from this that the appellant appeals. [18] The judgment is grounded on the premise that "The City has not submitted that they have the power to delegate enforcement". That is not the situation on this appeal. The City submits that under the Vancouver Charter it does have the power to require proprietors to prohibit smoking in their restaurants. [19] Both in this appeal and at trial the City further contended that "Section 6.2 creates a separate and independent offence from the offence created by section 6.1". That is, it creates an offence on the part of the proprietor which does not involve any delegated duties of enforcement. CONCLUSIONS [20] With respect to the magistrate's decision that the City did not contend that it had the power to delegate enforcement, it is useful to refer to the submissions of the City as they appear in the transcript. Counsel for the City referred to provisions of the Liquor Control and Licencing Act wherein a licensee or employee "shall not permit a person to become intoxicated or an intoxicated person to remain in that part of a licenced establishment ...". She also referred to another section of the same Act that provides that a licensee shall not permit a person who has a weapon to remain in the premises. Counsel for the City then said as follows: In other words, the legislation as it is set up in the health by-law of the City of Vancouver is not unique, it is not unusual and it does not indicate that there has been an improper delegation of authority to put responsibilities upon the proprietary to conduct themselves in a certain way, as well as placing responsibilities of certain persons when they're in the premises. And in the City's submission, there is no improper delegation of authority in this particular situation before the courts. [my underlining] [21] How can it be said that the City "has not submitted that they have the power to delegate enforcement"? In contending that the City did not engage in "an improper delegation" it must be taken that counsel was starting from the proposition that the City had the power to delegate. Consequently, I must with respect find that the justice of the peace erred when he concluded that the City had not submitted that it had the power to delegate enforcement. [22] While his judgment, if read literally, seems to be based solely on that finding, a less restrictive reading suggests that the magistrate was of the opinion that the City has no power of delegation. It is unclear whether he considered the delegation to be the enforcement of section 6.1 or of section 6.2. In this Court the respondent submitted that the delegation for which the City does not have jurisdiction is the enforcement of section 6.1 by means of section 6.2. [23] Counsel for the respondent submitted at the trial and on this appeal that Provincial laws that delegate enforcement are of no assistance to the City because, in her words, "the City is a creature of statute, the Vancouver Charter and "nowhere in the Vancouver Charter is such authority granted to the City". [24] The appellant disagrees and points to provisions of the Vancouver Charter that she says give to the City the power to delegate enforcement. The City is authorized by section 272 of its Charter to make by-laws for the licensing of persons carrying on any business. Section 330 provides that the council may make by-laws providing for the health of inhabitants, for preventing the spread of disease and, for that purpose, make by-laws "for regulating, controlling, and restricting persons and their activities". [25] In Jones v. City of Vancouver (1920), 51 D.L.R. 320 (B.C.C.A.) a by-law provided that proprietors of pool rooms and billiard halls could not permit customers to play games on which there were wagers. The Court held that the licencing provision of the Vancouver Incorporation Act was one that "regulated" and thus was intra vires of the council. Macdonald, C.J.A. adopted the words of Lord Hobhouse in Slattery v. Naylor (1888), 13 App. Cas. 446 at 449 (H.L.): It is difficult to see how the Council can make efficient bye-laws for such objects as ... general health, not to mention others, unless they have substantial powers of restraining people, both in their freedom of action and in their enjoyment of property. [26] Jones, supra, was referred to with approval in Murray W. Schacher Enterprises Ltd. v. Vancouver, October 29, 1975, (B.C.C.A.). It was applied in Re City of Vancouver License By- Law 4957 (1978), 6 M.P.L.R. 39 (B.C.C.A.). The challenge was to a by-law that prohibited proprietors of body-rub parlours from advertising sexual or nude entertainment. The submission was that the by-law was a prohibition, not merely a regulation of the body-rub business. The Court held that the by-law was regulatory and a valid exercise of the powers granted to the City. [27] Counsel for the respondent, both here and at the trial, cited Weir et al. and The Queen (1973), 102 D.L.R. (3d) 273 and Ohayan v. Mun. Ct. of Cote St-Luc (City) (1986), 33 M.P.L.R. 137 (Que. S.C.). Both cases involved no-smoking by-laws. In Weir there were policing duties imposed upon the proprietor. The Court found that the duty imposed upon the proprietor was "an uncertain duty, such a vague obligation on the proprietor, that the by-law ought to be declared invalid". The Court further held that there were "fairly strict" policing duties imposed on the proprietor. These included requesting the smoker to stop smoking at once, refusing to serve food to a smoker and requiring the smoker to leave the premises. The learned judge said as follows at page 288: One can imagine the difficulties that might be encountered by a small, feminine proprietor of a convenience store attempting to carry out the duties delegated to and imposed upon her by that section of the by-law. [28] In Ohayan the Court simply followed Weir. Ohayan was reversed on technical grounds. [29] The scheme in Weir is different from that in the by-law in the case at bar. The proprietor pursuant to section 6.2 is not required to take any particular course of action. It does not put "a small, feminine proprietor" at risk. It does not make the failure to carry out some specific act of enforcement a breach of the by-law. [30] For that reason I find Weir to lack persuasion in the case at bar. Furthermore, the reasons in Weir are grounded on the simple example of a defenseless female, small in stature, being subjected to danger. There is no canvassing or even apparent thought to any other situation or remedy. [31] I respectfully adopt the sentiments of Lord Hobhouse as cited in Jones, supra. If section 6.2 is an enforcement section for section 6.1, I am of the opinion that the City has the authority to delegate enforcement in the manner that it has done by section 6.2. [32] The appellant also submits that section 6.2 creates a prohibition against the proprietor. That is, a separate and independent offence from the offence created by section 6.1. I am of the opinion that it does. [33] The goals of the no-smoking by-law are not open to question on this appeal. It is a health by-law properly enacted by the Vancouver City council. The purpose of the legislation cannot be attained without enforcement. That enforcement may be accomplished in many ways. It might require a force of City inspectors. It might require the involvement of the police. It will require the co-operation of the public and of the proprietors of restaurants. What is expected from the proprietors is codified in the by-law. [34] How then can it be argued that the proprietors of the establishments that are the centre of the enactment should be excused from co-operating with enforcement? The magistrate found that the restaurant's conduct "does not constitute compliance with the by-law or due diligence". That finding has not been appealed. In any event, the evidence in the case established that the respondent was not going to either enforce or encourage compliance with the by-law. Its conduct was directed at thwarting it. [35] The submission that section 6.2 makes the proprietor automatically guilty is, in my opinion, specious. If a charge was laid under section 6.2 it would be open to the proprietor to show that it took some action to comply with the section. The proprietor could be found not guilty because the customer refused to comply with the by-law in spite of the conduct of the proprietor. [36] The policy of the respondent as published and its conduct, both general and specific to this case, was designed to defeat the by-law and to allow smoking in its premises. This is evident in the testimony of the manager and vice-president of the restaurant. They saw no problem in complying with their obligations to deny service or hospitality to customers who were in contravention of restrictions regarding animals or alcohol. However, when it came to a smoking customer the proprietors found themselves immobilized. No doubt this was caused by economic trauma. [37] There is discrimination in the by-law, the result of which will be that some restaurants will suffer financial hardship not imposed upon their pub cousins. That was adjudicated upon by Mr. Justice Cohen in Restaurant & Foodservices Assn., supra, and is not a consideration in the case at bar. [38] Borrowing from the reasons in City of Hamilton v. Hamilton Distillery Co. (1907), 38 S.C.R. 239 Cohen J. said at page 29: 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 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. [39] This, in my opinion, is the approach compatible with the duties of this Court and in keeping with the will of the citizens of the City as enacted by the City council. [40] The appeal in Restaurant & Foodservices Assn. was dismissed. Mr. Justice Hall, while agreeing with the reasons of Finch J.A. as concurred in by Ryan J.A., added his view that it was not apparent to him that there was any discrimination in the by-law. [41] The appeal is allowed and convictions will be entered on the two counts. Counsel for the City was reluctant to be definitive as to what punishment should follow. She suggested $800 on each count. That would seem to be appropriate for infractions beyond this first one. This infraction was probably designed to test the by-law. In the circumstances I will levy a fine of $100 on each count. "Thackray J."