Hookah bars to launch legal challenge of Ottawa waterpipe ban

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Cultural argument for shisha a smoke screen, prof argues

Several hookah establishments in Ottawa have decided to take legal action against the city's ban on waterpipes, arguing the ban infringes on their cultural rights.

City council voted to ban smoking waterpipes in public places in August 2016. Although the bylaw came into effect on Dec. 1, 2016, it wasn't enforced until Monday.

Ottawa lawyer Lawrence Greenspon is bringing forth the legal challenge on behalf of a number of restaurants, bars and shisha lounges. Their owners say it's an important cultural practice in many Arab and Middle Eastern communities, and that banning it is an infringement on their culture.

"We've brought an application to the Superior Court under section 15 of the Charter of Rights and Freedoms and also section 27, which are sections that deal with freedoms and discrimination and — in section 27 particularly — multiculturalism," Greenspon said.

Last Friday, Greenspon issued the notice of application with the court outlining the basis of the challenge and said the next step would be the exchange of affidavits. He is representing about half of the more than 20 establishments in the city that currently offer waterpipes.

City to 'vigorously defend the challenge'

In a memo to city council and the Ottawa Board of Health, city lawyer Rick O'Connor said his department will work with public health officials and members of the bylaw and regulatory services branch to "vigorously defend the challenge." He also noted that similar challenges in Toronto and Vancouver have been unsuccessful.

However, Greenspon said Ottawa's challenge is different.

"They did not advance what we are saying here," he said.

"In Vancouver they challenged it on the basis of religion … and I don't think there's any tie between hookah and shisha smoking and Islam. And in Toronto, it was challenged simply as a matter of whether or not the city has jurisdiction to pass a bylaw like this at all and that wasn't successful." 

The city, meanwhile, claims that incorrect references were made to the the city's bylaws in the notice of application.

"It is our preliminary assessment that the applicants actually intended to challenge the water pipes in public places and workplaces bylaw 2016-303, and not the smoke-free bylaws 2001-148 and 2001-149," wrote O'Connor.

"The smoke-free bylaws were enacted in 2001 and withstood judicial scrutiny by both the Superior Court of Justice and the Ontario Court of Appeal during the early 2000s, when they were challenged by the Pub & Bar Coalition of Ontario."

The city said the applicants will be required to amend their application to properly reflect their intended legal challenge.

Ban's burden on businesses

Julia Moussa, who owns the Bay Rock restaurant in South Keys, is considering taking legal action to defend what she believes is her right to express her culture.

"It's something that's associated with our culture and the way we socialize," she said. 

Moussa, who began her hookah business three years ago, said she has retained a lawyer and is in close communication with other businesses which, like hers, are struggling to continue in spite of the ban.

"It's not a piece of cake," said Moussa. "The time that was given to us in order to either close our business or move or transform … was not reasonable at all."

Moussa said she initially based the location of her establishment on the fact that it would primarily be a hookah cafe. However the ban has forced her to hastily change her business plans, apply for a liquor licence and find a new space.

"We [now] have a larger location. We have a full kitchen and we are relying on the alcohol, the food and entertainment," she said.

The city said no bylaw charges have been issued to date.

Greenspon's application also seeks an injunction on the enforcement of the bylaw, pending a determination of the legal challenge. O'Connor said once staff have reviewed the application, they'll determine whether or not they'll respond to that request.