[Intl-tobacco] Canada: Group warns of legal fight over smoking ban, claims a taking

[Robert Weissman]

Group warns of legal fight over smoking ban
by MARIA MCCLINTOCK / CITY HALL BUREAU
Source: Edmonton Sun, Tuesday, 12/19/00

The city should prepare to go to court if its new controversial
anti-smoking bylaw is passed today, predicts a national property rights
lobby group.

 'The proposed smoking ban would constitute a regulatory taking of
property,"  said Matthew Johnston, executive director of the Canadian
Property Rights Research Institute.

"The legal precedents the institute has reviewed suggest that a case may
be made for market-value compensation. The city has not budgeted for the
huge cost of legal fees and potential damages that could result," added
Johnston.

 Johnston's group claims a previous Supreme Court decision supports their
case that restaurants which go out of business due to a smoking ban would
have a legal leg to stand on. And Johnston is urging restaurant owners to
fight city hall if council passes the bylaw today.

 Lawyers consulted by Johnston's group interpret the Supreme Court ruling
to mean that the loss of goodwill by a given property owner could be
tantamount to expropriation and that compensation would be warranted.

 But Steve Phipps, the city's lawyer who drafted the anti-smoking bylaw,
said the potential for being sued is always taken into account when
legislation is drafted.

 "As long as the legislation is in the area of a municipality's
jurisdiction, and as long as it's not done in bad faith or for an alterior
motive, generally the municipality would be immune from challenge," said
Phipps.

 Today city council will vote on third, and final, reading of the bylaw.
It's expected to pass and when it's implemented in May, smoking will be
banned from all restaurants and their outdoor patios.

 Coun. Bryan Anderson is expected to table a motion that would amend the
bylaw to allow restaurants to annually declare themselves smoking
establishments if they ban patrons under 18 and indicate that smoking is
restricted to 50% of the eatery.

 Anderson will attempt to get support for his amendment, in an effort to
give restaurants an option.