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January 27, 1998
To: North York Community Council
From: City Solicitor
Subject: A By-law to amend City of North York By-law 32931, as amended
Purpose:
The purpose of this report is to submit a draft by-law to amend City of North York By-law #32931, as amended, for your consideration and recommendations to Toronto City Council.
Funding Sources Financial Implications and Impact Statement:
N/A
Recommendations:
It is recommended that Community Council adopt this report and recommend the appended draft by-law to Toronto City Council for enactment.
Council Reference/Background/History:
At the meeting of North York City Council held July 9, 1997, North York Council adopted a number of motions dealing with proposed amendments to the City's Smoking By-law as follows:
A. A ... to prohibit smoking in all work places in the City of North York ...@;
B. A ... to prohibit smoking in all food courts in the City of North York ...@;
C. A ... to prohibit smoking in all adult entertainment parlours in the City of North York@; and,
D. to exclude Atobacco research and testing facilities@ from the proposed amendment regarding workplace smoking.
By virtue of the provisions of the City of Toronto Act, 1997, former City of North York By-law 32931, as amended, remains in force in the territory comprising the former City of North York.
Comments and Discussion:
The draft by-law appended to this report would implement North York City Council =s decisions of July 9, 1997, with respect to items A, B & D set out in the previous section of this report.
The appended draft by-law does not implement the proposed amendment to prohibit smoking in adult entertainment parlours. It is our opinion that such a prohibition is illegal and would be struck down by the Courts based on unlawful discrimination. Unless specifically authorized to do so, by-laws must not discriminate and must treat all those whose material circumstances are the same in the same way. It is clearly discriminatory to apply a harsher rule to adult entertainment parlours than to other restaurants, bars and taverns that provide no entertainment or non-adult entertainment.
We wish to draw one other aspect of the appended draft by-law to your attention. North York City Council =s decision of July 9, 1997 was to prohibit smoking in all Awork places@. In preparing the appended draft by-law we have had regard for the provisions of the Smoking in the Workplace Act. That Act defines Aenclosed workplace@ as Aan enclosed building or structure in which an employee works and includes a shaft, tunnel, caisson or similar enclosed space@. Section 5(2) of the same Act requires an employer to A ...make every reasonable effort to accommodate employees who request that they work in a place separate from a designated smoking area@.
We understand that in order to comply with Section 5(2) and accommodate employees who requested not to be exposed to second-hand smoke, some North York employers have established fully enclosed separately ventilated spaces at their premises that are set aside for smoking only and that are not places where employees work.
From an enforcement standpoint it is desirable to be as clear as possible about which activities are prohibited by a by-law and which are not. To that end, the draft by-law appended to this report defines workplace so that it includes every enclosed structure in which an employee works and excludes fully enclosed, separately ventilated structures that are not places where employees work and are set aside only for smoking. We believe the attached draft by-law captures North York City Council =s intention to prohibit smoking in food courts and in all structures where employees are required to work and might otherwise be exposed to second hand smoke.
If our understanding of North York City Council =s intention is not correct and it was in fact Council=s intention to adopt more restrictive workplace smoking provisions than exist in East York, Etobicoke, Scarborough and the old City of Toronto, Community Council should direct us to revise the draft by-law to clearly outlaw the use of fully enclosed, separately ventilated smoking rooms at employers= premises.
Conclusions:
The draft by-law appended to this report is submitted for your consideration and recommendation to Toronto City Council. For reasons expressed in the report, it does not contain an absolute prohibition against smoking in adult entertainment parlours but rather maintains the same restrictions upon smoking in adult entertainment parlours as apply to other restaurants, bars and taverns.
Contact Name:
George M. Dixon
City Solicitor, North York
tel: (416) 395-7055
fax: (416) 395-7056
email: legal@city.north-york.on.ca
George M. Dixon
City Solicitor, North York
cc: H.W.O. Doyle
Lead Solicitor
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