Ontario Court of Appeal Tosses Lower Court Rulings Limiting York Body Rub Bylaw

By Joey Coleman // @JoeyColeman
Published: Mar 23 2017 (a month ago) // Last Updated: Mar 23 2017 (a month ago)

The Ontario Court of Appeal tossed two lower court rulings limiting a Regional Municipality of York By-Law that regulated the hours of operation and dress of staff of body rub parlours in the Region.

The Province of Ontario joined in the appeal alongside the Region.

In 2012, the operator of a body rub parlour was charged with violating the operating hours clause of the By-Law. The bylaw restricted hours of operations for parlours to Monday to Friday from 9:00am to 10:00pm; Saturday from 9:00am to 6:00pm; and Sunday from 10:00am to 5:00pm.

The operator appealed the fine, and argued that both the hours of operation and dress regulations of the bylaw ultra vires (beyond the legal powers of the municipality).

On hours of operation, between the time of the passing of the bylaw, and the By-Law charge, the section of the Municipal Act allowing for restricting the hours of businesses was repealed. The section part of the bylaw sought to address concerns of criminal behaviour (prostitution and trafficking) which fall under the criminal code and therefore federal jurisdiction.

In 2013, a Justice of the Peace, in a 76-paragraph decision, ruled in favour of the parlour operator and struck down the provisions of the bylaw.

[75] In conclusion, I find that:

i. s. 13.0(1) h) and 13.4 which prescribe hours of operation are ultra vires the City in that those sections attempt to legislate prostitution. This is within the scope of the criminal law and therefore these sections are quashed.

I would also note that I find the above sections to also be unfairly discriminatory having regard to the hours of operation permitted for other adult entertainment establishments.

ii. s. 13.0(1) o) and p) are ultra vires the City in that those sections deal with nudity. This is within the scope of the criminal law and therefore those sections are quashed.

The decision was appealed by the municipality to the Ontario Court of Justice. The appeal judge dismissed the appeal.

The municipality then appeal to the Ontario Court of Appeal, which this week granted the appeal and ordered a new trial.

The ONCA found that municipalities are allowed to regulate business hours, and that municipalities are allowed to enact regulations that can overlap with the criminal code.

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