Supreme Court Petition states WCB broke its own law, acted without proper public consultation; smoking ban causing economic hardship.

Vancouver, January 28, 2000... A Ladysmith pub owner is taking the BC Workers Compensation Board to provincial Supreme Court over the recently imposed smoking ban.

A Petition was filed Wednesday in BC Supreme Court on behalf of Kevin Pugh, owner of the Rocky Creek Pub who stated that "the WCB broke its own law by failing to hold a public hearing after a critical change was made to the regulation."

The critical change to the regulation was the addition of a "sunset clause" which effectively removed the hospitality industry’s exemption from the regulation.

Al Arbuthnot, President of the BC Liquor Licensees and Retailers Association, a co-petitioner in this legal challenge stated that "this sudden change to the regulation was a fundamental betrayal of the hospitality industry, and it was illegal."

The WCB has stated that there was ‘extensive’ consultation about the omnibus changes to their regulations. However, the vast majority of hospitality businesses and the key labour union were not consulted. Mr. Pugh stated his belief that "the regulation was changed ‘in the middle of the night, behind closed doors’ after intense lobbying efforts against the hospitality industry."

The Rocky Creek Pub is fully compliant with the smoking ban regulations, and has experienced a drop of business between 20 and 60% compared with daily revenues from January 1999.

Arbuthnot concluded "The regulation has effected a significant drop in many businesses around the province. Some establishments have reported a 65% drop in revenues. Four businesses have closed their doors, and 525 jobs have been lost. Premier Miller has yet to express any concern for the laid off workers."

Prior to the regulations’ implementation, the hospitality industry sent more than 70,000 postcards in favour of a ventilation solution to Premier Dan Miller. In addition, over 3,000 workers faxed the WCB to remind them that they were never consulted, and never requested the smoking ban.

Donations may be made at any BC Branch of the Toronto Dominion Bank to the "Hospitality Legal Defense Fund."

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For more information:

Tim Williamson, Legal Counsel

Connell Lightbody

604.808.3144

The WCB has the authority, under the Workers Compensation Act to enact its own regulations. The WCB must therefore strictly follow the Act in adopting its regulations, or they are null and void.

There are five main points contained in the legal challenge against the WCB’s regulations on Environmental Tobacco Smoke. These points are at the heart of the continued public controversy against the regulation, and demonstrate why the hospitality industry has been adamantly opposed to their implementation. The main arguments are:

•Public hearings are required. The WCB is required by the Act to have public hearings before enacting a regulation. If the regulation fails to have a public hearing before enacting a regulation, the regulation is null and void.

•Hearings must be about the regulation. Obviously, the WCB cannot simply have any public hearing before enacting any regulation. The public hearing must be about the proposed regulation.

•Hearings that were held concerned a regulation with an exemption for the hospitality industry. In public hearings in 1996, the WCB proposed a ban on smoking in workplaces which exempted the hospitality industry. The WCB had always held that this would allow the industry to develop a "ventilation alternative."

•WCB added a "sunset" clause in the middle of the night. When the regulations were enacted on September 8, 1997, mysteriously enough, the WCB had added a "sunset clause" that caused the hospitality industry’s exemption to expire on January 1, 2000. It is believed that this material change was the result of intensive "behind the scenes lobbying" against the hospitality industry.

•No public hearing was held on the sunset clause. The sunset clause fundamentally changes the regulation. Therefore it was not legally enacted and is null and void because no public hearing was conducted on it.