BY KEITH LACEY
Greater SudburyÂ?s controversial smoking bylaw prohibiting smoking in bars has survived a court challenge. It has been ruled lawful and valid.
Three weeks after a full-day hearing in which a business owner and his lawyer asked the courts to quash the bylaw, a veteran Ontario Superior Court Justice has denied the application put forward by Dave Horton, owner of Tommyknockers Pub, and lawyer Michael Hennessy.
In an 18-page ruling issued Tuesday, Kozak ruled the cityÂ?s bylaw, which came into effect June 1, is valid and wonÂ?t be overturned in its current context.
Â?The purpose of the smoke-free bylawÂ?is to protect the inhabitants and workers in the City of Sudbury from the discomfort and known health hazards of second hand smoke,Â? wrote Kozak. Â?This was the true intent of the bylaw. It was to suppress a health hazard and not to interfere with property rights.Â?
If the judge had ruled in favour of Horton, it would have set a provincial and perhaps national precedent.
Hennessy said KozakÂ?s ruling is disappointing, but it doesnÂ?t mean this issue is over.
Â?The judgeÂ?s ruling is something weÂ?re obviously disappointed with,Â? he said. Â?A judge has decided this city can force employers to adopt as their own a no-smoking bylaw and we still find that very distressing.Â?
His legal argument focused on one Â?very narrow issueÂ? relating to forcing employers to adopt bylaw policies as their own, and KozakÂ?s decision on this narrow issue hasnÂ?t been tested by the Ontario Court of Appeal.
Â?One option being carefully considered is an appeal, which we will decide to pursue after looking very carefully at the judgeÂ?s ruling,Â? said Hennessy.
Horton was also disappointed. Â?This is a sad day for everyone in the hospitality industry, not just the owners, but employees who are suffering financially,Â? he said.
Horton said he had hoped the stakeholders could have met to discuss their concerns before the bylaw was passed.
Â?The fact is there was an agenda in place and all of this was fully orchestratedÂ?there was no real chance for
employers and customers to voice their opinion.Â?