Adult Entertainment Association of Canada et al. v. Ottawa (City), (2007) 224 O.A.C. 267 (CA)

• Judge: Goudge, Blair and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 17, 2007
• Jurisdiction: Ontario
• Citations: (2007), 224 O.A.C. 267 (CA);2007 ONCA 389

Adult Entertainment Assoc. v. Ottawa (2007), 224 O.A.C. 267 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.071

The Adult Entertainment Association of Canada , The Nuden, The Barefax Inc., Barbarella Diamonds , Silver Dollar , Oasis Show Bar , The Playmate , Polar Bare Club, Joseph Bentivoglio, Doug Pettit , Pierre Groulx , Michael Norwood , Robert Autumn, Jacques Campeau , Patrick Campeau , Larry Lepine, Michelene Declare , Dawn Sandey and Jill Mansfield [see note 1] (appellants) v. The Corporation of the City of Ottawa (respondent)

(C44218; 2007 ONCA 389)

Indexed As: Adult Entertainment Association of Canada et al. v. Ottawa (City)

Ontario Court of Appeal

Goudge, Blair and LaForme, JJ.A.

May 24, 2007.

Summary:

Most of the applicants were owners or operators of adult entertainment parlours in the City of Ottawa. Some were performers at such establishments. They applied to quash a City bylaw restricting the operations of their establishments. At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas. This had significant consequences for the pursuit known as "lapdancing" which was said to be very important for the profitability of their entertainment parlours.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 748, dismissed the application. The applicants appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1844

Freedom of speech or expression - Limitations on - Entertainment - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - This had significant consequences for "lapdancing" which was said to be very important for the profitability of their entertainment parlours - The Ontario Court of Appeal assumed without decided that lap dancing constituted a form of expression protected by s. 2(b), "even if only marginally so" - However, the court held that the impugned provision was saved under s. 1 of the Charter - See paragraphs 57 to 59.

Civil Rights - Topic 1844

Freedom of speech or expression - Limitations on - Entertainment - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - They alleged, inter alia, that the bylaw violated s. 2(b) of the Charter - The Ontario Court of Appeal agreed with the application judge that the bylaw's restriction on the placing and contents of signs and advertising devices did not catch expression of opinion, but simply dealt with a business advertisement - Further, even if s. 2(b) was violated, the restrictions were saved under s. 1 of the Charter - See paragraphs 57 to 61.

Civil Rights - Topic 1844

Freedom of speech or expression - Limitations on - Entertainment - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - They impugned the requirements of s. 24 of Schedule 11 of the bylaw that notices be posted in various places in the AEP advising that (a) physical contact was prohibited, and (b) sexually transmitted infections could be transmitted through unprotected physical contact, alleging that they violated s. 2(b) of the Charter - They claimed that forced expression was as much an infringement on their freedom of expression as was the regulation or prohibition of expression - The Ontario Court of Appeal held that s. 2(b) was not infringed - An AEP owner or operator was not necessarily or automatically associated with the message, or with a message with which they did not agree, and there was nothing to prevent them from posting their own message in conjunction with the s. 24 message disavowing it and saying that it was only posted to comply with the bylaw - Alternatively, the provision was saved under s. 1 of the Charter - See paragraphs 62 to 65.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - The applicants also challenged ss. 99 (advertising devices) and 151(3) (power of entry) of the Municipal Act - They alleged that they were void for vagueness because they (a) gave the city the authority to tailor its bylaws to its own whims, contrary to principles of fundamental justice, and (b) provided no limitation on law enforcement discretion and that they therefore contravened the rule of law - The Ontario Court of Appeal rejected the submission - The provisions were not vague, the rule of law did not apply in this context and, insofar as it related to the constitutionality of the impugned provisions, the argument had to be rejected for lack of notice - See paragraphs 51 to 56.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See all Civil Rights - Topic 1844 ].

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of attack on validity of statute - [See Municipal Law - Topic 3848 and Municipal Law - Topic 3855 ].

Municipal Law - Topic 1496

Powers of municipalities - Particular powers - Licensing and regulating of businesses (incl. adult entertainment) - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - This had significant consequences for "lapdancing" which was said to be very important for the profitability of their AEPs - The Ontario Court of Appeal affirmed that the city had the power to enact the bylaw which licensed, regulated and governed the operation of AEPs - The authority was derived from ss. 150 (general licensing powers) and 151 (dealing specifically with AEPs) of the Municipal Act - See paragraphs 11 and 12.

Municipal Law - Topic 1496

Powers of municipalities - Particular powers - Licensing and regulating of businesses (incl. adult entertainment) - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - Section 8 of Schedule 11 of the bylaw restricted the location of AEPs in the municipality to the applicants' existing nine locations and to certain other designated areas of the city - The applicants claimed that the provision amounted to an indirect and ultra vires attempt to introduce a zoning scheme restricting the use of land, under the guise of a licensing scheme, in order to put them out of business - The Ontario Court of Appeal rejected the submission - The Municipal Act expressly provided a municipality with authority to "define the area of the municipality in which adult entertainment establishments may or may not operate and limit the number of licences granted in any defined area in which they are permitted" (s. 151(1)(a)) - Further, rather than attempting to put the applicants out of business, the AEP bylaw explicitly preserved all existing adult entertainment parlours in the city - See paragraphs 44 and 45.

Municipal Law -Topic 1583

Powers of municipalities - Exercise of powers - Conflict with provincial or federal legislation - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - The applicants alleged that the bylaw was colourable municipal legislation - The Ontario Court of Appeal rejected the submission where the applicants were unable to point to any specific ways in which they alleged that the bylaw actually conflicted with the licensing or regulatory schemes enacted by the province pursuant to either the Liquor Licence Act or the Health Protection and Promotion Act - See paragraphs 70 to 73.

Municipal Law - Topic 3330

Bylaws - Notice of intention to consider - Form and content - A municipiality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - The Ontario Court of Appeal found no basis to interfere with the trial judge's finding that the city had complied with the notice requirements of s. 150(4) of the Municipal Act - Notices were placed in three newspapers advising of the proposed regulations and giving notice of the upcoming public meeting - The Notice of Public Meeting summarized the proposed bylaw's "regulations and responsibilities" - The Notice was mailed, faxed or e-mailed to all adult entertainment licensees - Meetings were held with the stakeholders and their representatives - Representatives of the applicants and their counsel were at the council meeting when the bylaw was passed - Further, none of the applicants provided any written information or made any written submissions during the draft bylaw process - See paragraphs 13 to 17.

Municipal Law - Topic 3844

Bylaws - Quashing bylaws - Grounds for judicial interference - Invalid purpose - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - This had significant consequences for "lapdancing" which was said to be very important for the profitability of their AEPs - The Ontario Court of Appeal rejected the applicants' submission that the municipality had not complied with s. 150(2) (licensing purposes) of the Municipal Act - As the preamble made clear, the municipality's reason for licensing adult entertainment owners and operators was to promote health and safety and consumer protection in order to provide a safe environment for patrons and employees - Under s. 150(2), a municipality could license businesses for those purposes - A reading of the bylaw as a whole confirmed that its provisions responded to those purposes - Moreover, the application judge specifically rejected the argument that the municipality acted in bad faith or for an ulterior purpose, finding no evidence of an ulterior motive in passing the bylaw - Further, the bylaw did not seek to prohibit the applicants' businesses rather than regulate them - Physical contact between performers and clients in a private setting was not essential to the operation of an AEP - See paragraphs 18 to 24.

Municipal Law - Topic 3844

Bylaws - Quashing bylaws - Grounds for judicial interference - Invalid purpose - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - The applicants alleged that the bylaw was passed without a proper factual foundation to support the health and safety and consumer protection rationales set out in s. 150(2) of the Municipal Act - The Ontario Court of Appeal rejected the argument - Although the application judge found the evidence to be somewhat impressionistic, he also found that council acted reasonably and within its legislative competence, for valid municipal purposes - Courts were to afford considerable deference to municipalities in the exercise of their valid regulatory powers on behalf of the citizens who elected them - See paragraphs 25 to 30.

Municipal Law - Topic 3846

Bylaws - Quashing bylaws - Grounds for judicial interference - Discrimination - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - The applicants alleged that the bylaw permitted discrimination as between adult entertainment parlour operators (who had to be licensed) and performers (who did not) - The Ontario Court of Appeal rejected the argument on the basis that the operators and performers did not fall within the same class - Operators performed managerial functions - Performers were employees only, or perhaps independent contractors - Their role in the operation of the AEP was quite different from that of a licensed operator - See paragraphs 42 and 43.

Municipal Law - Topic 3848

Bylaws - Quashing bylaws - Grounds for judicial interference - Uncertainty or vagueness - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - This had significant consequences for "lapdancing" which was said to be very important for the profitability of their AEPs - The applicants submitted that the bylaw was void for vagueness because (a) there was a potential for arbitrariness and discrimination with respect to enforcement decisions and in the approval process for the designated entertainment areas, (b) the "no touching" provision was overly broad and open to abuse, and (c) the bylaw provisions were prohibitory rather than regulatory and were designed to put the applicants out of business - The Ontario Court of Appeal rejected the submissions - See paragraph 46.

Municipal Law - Topic 3851

Bylaws - Quashing bylaws - Grounds for judicial interference - Unlawful subdelegation - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - At the root of their complaints were provisions prohibiting touching between dancers and customers and, more particularly, requiring that all live entertainment or services be performed in open designated entertainment areas - The applicants alleged that s. 4(1)(e) of Schedule 11 of the bylaw was ultra vires because it constituted a wholesale delegation of its regulation-making authority to the Chief of Police and the Chief License Inspector - Section 4(1)(e) provided in part that "No license or renewal of license shall be issued to an owner of an adult entertainment parlour unless: ... a detailed floor plan, drawn to scale, of the adult entertainment parlour has been approved by the Chief License Inspector and the Chief of Police ..." - The Ontario Court of Appeal held that the bylaw provided for a permissible delegation of administrative and enforcement detail - The requirement in s. 4(1)(e) for the approval of a detailed floor plan was not a standardless exercise as the applicants contended, given the definitions of "designated entertainment area" and "unobstructed" elsewhere in the bylaw - See paragraphs 32 to 38.

Municipal Law - Topic 3855

Bylaws - Quashing bylaws - Grounds for judicial interference - Abuse of powers; unreasonable, unfair or oppressive - A municipality passed a bylaw respecting adult entertainment parlours (AEPs) - The applicants (mostly AEP owners and some dancers) applied to quash the bylaw - The applicants challenged the reasonableness of the bylaw - Section 272 of the Municipal Act provided that "A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law" - The Ontario Court of Appeal held that the argument that the bylaw was unreasonable was not available to the applicants because no notice had been given to the Attorney Generals of Canada and Ontario that the constitutionality of s. 272 was under attack - In any event, the application judge specifically found on the record before him that the city had acted reasonably in enacting the bylaw and there was no basis to interfere with that finding - See paragraphs 47 to 50.

Municipal Law - Topic 3884

Bylaws - Quashing bylaws - Judicial review - Practice - Standard of review - [See second Municipal Law - Topic 3844 ].

Cases Noticed:

Ontario Adult Entertainment Bar Association v. Metropolitan Toronto (Municipality) (1995), 86 O.A.C. 161; 26 O.R.(3d) 257 (Gen. Div.), affd. (1997), 104 O.A.C. 113; 35 O.R.(3d) 161 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 594, folld. [para. 21].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 30].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201, refd to. [para. 30].

R. v. Sandler, [1971] 3 O.R. 614 (C.A.), dist. [para. 37].

Forst v. Toronto (City) (1923), 54 O.L.R. 256 (C.A.), dist. [para. 37].

Clements & Toronto, Re, [1959] O.R. 280 (H.C.), dist. [para. 37].

679619 Ontario Ltd. et al. v. Windsor (City) (2007), 219 O.A.C. 37; 2007 ONCA 7, refd to. [para. 40].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305, refd to. [para. 50].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 53].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 53].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 55].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 61].

Lavigne v. Ontario Public Service Employees Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 63].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 67].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 70].

Statutes Noticed:

Municipal Act, S.O. 2001, c. 25, sect. 99.2, sect. 151(3) [para. 51].

Counsel:

Morris Manning, Q.C., for the applicants/appellants;

Michael Rankin and Martin Thompson, for the respondent/respondent.

This appeal was heard on January 18, 2007, by Goudge, Blair and LaForme, JJ.A., of the Ontario Court of Appeal. Blair, J.A., delivered the following decision for the court on May 24, 2007.

1. A Notice of Abandonment of the appeal was filed on January 17, 2007 on behalf of the appellants The NuDen, Fanny's Cabaret Lounge, Polar Bare Club, Joseph Bentivoglio, Robert Autumn, and Larry Lepine.