THE HISTORICAL CONTEXT OF THE EVOLUTION OF SMOKE-FREE BYLAWS IN ONTARIO
The effort to control second-hand smoke exposure in workplaces and public place in Ontario began at both the municipal and provincial levels of government in the mid-1980s. The City of Toronto's smoke-free workplace bylaw, which permitted the installation of separately-enclosed, separately-ventilated smoking rooms, was passed in this decade. The provincial government's Smoking in the Workplace Act (SWA), which came into force under the auspices of the provincial Minister of Labour in 1990, allowed 25% of any workplace to be an unenclosed smoking area without separate ventilation. The 25% smoking area did not need to be contiguous: in an office with 16 desks, for example, any four could be occupied by smokers, in effect creating a workplace without any effective non-smoking area.
Until 1994, the years following the passage of Toronto's workplace bylaw and the SWA saw little significant progress in the implementation of smoke-free requirements. Some municipalities, chiefly in south-central Ontario, passed minimalist bylaws which required municipalities to make their buildings (usually administrative premises) smoke-free or to install separately-enclosed, separately-ventilated smoking rooms (DSRs, or designated smoking rooms). Initial steps to regulate the hospitality industry came in the form of municipal bylaws which established relatively modest proportions of seating as smoke-free, usually 25-50%. Again, none of these early bylaws required separate enclosure or separate ventilation of smoking areas, and none required any type of hospitality premises to become 100% smoke-free.
The above situation began to change with the proclamation in November 1994 of the Tobacco Control Act (TCA). The TCA amended the provincial Municipal Act to give municipalities the power to pass smoke-free workplace and public place bylaws, including the power to require proprietors to ensure compliance.
Almost immediately, a number of Ontario municipalities began processes to try to consider first passage of new bylaws or to strengthen existing ones. The "first wave" of 100% smoke-free bylaws were developed and passed (although not entirely implemented) in 1995-97. Chief among these were bylaws of the Regional Municipality of Waterloo and the cities of Peterborough, Guelph, Windsor, London and Brantford. Widely varying in the degree of protection provided to hospitality workers and patrons, each of these bylaws included some of the following elements:
- Requirements that restaurants, usually defined as premises allowing all ages entry, become 100% smoke-free, often with allowance to construct DSRs;
- Requirements that signage be posted advising patrons and workers of the conditions of the bylaw;
- No onus to enforce on proprietors;
- Creation of various classes of places depending on the type of service they offered. With the advent of a single liquor license for all hospitality premises in Ontario, it became impossible to distinguish between types of service provided (and patrons permitted entry) on the basis of the type of liquor license in a given premises. The industry soon began to change its provision of service, to the point where in a given "restaurant", bar service could be emphasized until the noon hour, followed by a two-hour lunch period, followed again by bar service emphasis during the afternoon and early evening, followed by a period emphasizing dinner service, followed in turn by emphasis on bar service until closing. Many "restaurants" installed small bars close to entrances in order to provide patrons awaiting seats an opportunity to consume alcoholic beverages. In some premises, this type of seating expanded to the point where the type of service offered in a "restaurant/bar" configuration of this type would
not have previously been permitted under provincial liquor license requirements. Thus, in effect, the distinction between "restaurants" and "bars" became all but meaningless in most premises.
The watershed campaign occurred in 1996, when the Former City of Toronto passed a bylaw that attempted to make all hospitality premises 100% smoke-free, without designated smoking rooms and with no other exceptions. The major flaw in this bylaw, which ultimately led to its weakening in early 1997, was Toronto City Council's failure to place onus to enforce on proprietors. Neither Toronto Public Health nor the health agencies supporting the new bylaw were aware that bylaw enforcement officers did not (and still do not) have the power to compel a patron who might be smoking in contravention of the new bylaw, to produce identification for the purposes of issuing a ticket. This oversight was quickly communicated around Toronto bars and restaurants following the bylaw's early March 1997 implementation, at which point patrons began to smoke with impunity, which was nightly reported on local media. This widespread non-compliance, combined with a well-organized, vocal and hostile opposition led by the Ontario
Restaurant Association and several dozen local bar proprietors, resulted at one point in the suspension of Toronto City Council proceedings, the arrest of at least one bar owner, and ultimately a weakening of the bylaw in April 1997 to permit some unenclosed smoking in many premises.
Toronto's unfortunate experience tainted the deliberations of many municipal councils. Particularly when considering possible smoking bans in bars, council debates frequently contained references to Toronto's experience as evidence that bars could not - and should not - be regulated.
Another result of this unfortunate circumstance was that a series of bylaws passed in 1999 in the amalgamated City of Toronto and the Regions of Peel and York both allowed for a phase-in of smoke-free requirements and permitted the construction of DSRs.
The Toronto/Peel/York phase-in was based on the definition of a "restaurant" as a premises where all ages were admitted. Such a premises would either have to become 100% smoke-free, or install a DSR to no more than 25% of the usable seating area of the premises. "Bars" were defined as premises which served alcohol (and possibly food), and which did not permit anyone under 19 years of age onto the premises. Such establishments were permitted to maintain 25% of their usable seating area as unenclosed smoking areas without separate ventilation. In the case of all three bylaws, the restaurant requirements came into force on June 1, 2002, with the bar requirements to follow on June 1, 2004.
The next major development occurred with the implementation of 100% smoke-free bylaws in the cities of Peterborough and Guelph and in the Regional Municipality of Waterloo. The latter has received the most attention and study of any of the three, since it was the most comprehensive and heavily enforced bylaw then in force in the province. All hospitality premises were made 100% smoke-free without exceptions or exemptions (as of April 2000), with onus to enforce on proprietors (again as of April 2000). Regional enforcement staff developed a comprehensive protocol for inspections, and spent considerable resources on pre-implementation advertising and community education. Nevertheless, in the first months of the bylaw's implementation, enforcement staff were subjected to a variety of abuse, particularly in bars and road-houses, with the result that the Region was forced to hire off-duty police officers to accompany inspection personnel on their regular visits (which frequently occurre
d late into the evening, a practice avoided by the City of Toronto in 1997 and which no doubt contributed to that city's difficulties.)
Despite a lawsuit demanding damages for lost business and repeated hostile protests at Regional Council meetings, Council stood firm and in fact made one critically important improvement to the bylaw by implementing onus to enforce on proprietors in April 2000. Two minor exemptions, one for cultural events and another permitting a hardship clause, were also removed in April 2000. The damages lawsuit was thrown out following plaintiffs' inability to produce any documentation proving that any of them had lost business subsequent to the bylaw's implementation.
The Waterloo experience provided a foundation for the City of Ottawa's 100% smoke-free bylaw which came into force on 1 August 2001. The Ottawa bylaw extended the Waterloo approach by not allowing any exemptions or exceptions then by placing onus to enforce on proprietors in the version which passed City Council, and by extending the 100% requirement to private clubs and taxi cabs. An enforcement protocol similar to Waterloo's - including the use of off-duty police officers to help bylaw enforcement officers do their jobs - was also implemented. In response, the bar and pub community formed an organization, called PUBCO, with a specific objective of overturning the Ottawa bylaw through a lawsuit (which failed), and through other challenges to tickets and charges laid out under the bylaw's requirements. Since the 1 August 2001 implementation, none of PUBCO's legal challenges to the Ottawa bylaw have been successful. PUBCO has gone on to try to recruit members in other communities which are considering
100% bylaws. It should be noted that in its initial organizational phases, those who wish to join PUBCO were invited to call a telephone number in Ottawa which turned out to be that of the Canadian Tobacco Manufacturers' Council.
Since early 2000, more and more municipalities in all parts of Ontario have begun studying, consulting about, passing and implementing 100% smoke-free bylaws. Increasingly, these efforts have used what we may call the Waterloo-Ottawa approach, that is, no distinction between classes of premises, 100% requirements for all types of premises, no allowance for DSRs, and onus to enforce on proprietors.