City's water pipe ban unconstitutional, legal challenge alleges

A legal challenge filed against the city Friday alleges that Ottawa’s water pipe ban is unconstitutional, as it infringes on Middle Eastern Canadian’s rights because of the pipe’s significance in their culture.

A notice of application to the Ontario Superior Court of Justice, dated March 31, was brought by three parties. They are the Lebanese Palace Inc., which is a restaurant at 919 Industrial Ave., the restaurant’s operator Brian Mahmoud and Fadi Itaif, who is identified as a regular patron of the restaurant.

According to the filing, the restaurant has been open since 2015 and a large part of the business is in providing a space for customers to smoke traditional water pipes.

“As there is no exception or accommodation available for any existing businesses that offer water pipes to their customers, (Mahmoud and Lebanese Palace) would likely be unable to continue operating their business,” the document said.

The notice says that water pipes are “intimately connected” to Middle Eastern and Arab culture and the city’s by-law that bans them violates section 15 of the Charter of Rights and Freedoms, on grounds of cultural equality.

It also alleges that the by-law violates the city’s own multiculturalism policies, as well as the Canadian Multiculturalism Act.

[caption id=“attachment_64697” align=“aligncenter” width=“720”]

Ethnic restaurant Lebanese Palace is one of several parties challenging the city’s water pipe ban. (Google Street View)[/caption]

“Legal services will work with staff from both public health and By-law and Regulatory Services Branch to vigorously defend against the by-law challenge,” wrote Rick O’Connor, Ottawa’s city clerk and solicitor, in a letter to city council.

O’Connor noted that the filing appears to contain several errors as to the actual by-laws it is challenging.

The notice names the Smoke-Free Public Places by-law 2001-148 and Smoke-Free Workplaces by-law 2001-149, but incorrectly refers to them as having been passed in 2011, not 2001.

Because of the error, O’Connor said, the applicants appear to be challenging two zoning by-laws that have nothing to do with water pipes.

The city’s legal department believes the applicants mean to challenge the Water Pipes in Public Places and Workplaces by-law 2016-303, not the smoke-free by-laws. The errors will need to be corrected before legal action can go ahead, O’Connor wrote.

“Once the applicants have identified the target of their legal challenge, the parties will work within the existing court processes to establish a timetable ultimately towards securing a hearing date before the court.”

The application also seeks an injunction to halt the city’s by-law enforcement. O’Connor wrote the city’s legal department still need to review case materials before they can determine a strategy.

O’Connor wrote that similar bans in other cities have stood up in court.

https://www.slideshare.net/DevynBarrie/notice-of-applicaton30031