VANCOUVER REGISTRY

BETWEEN:

PETITIONERS

AND:

RESPONDENT

#109, 14914 – 104th Avenue

Surrey, British Columbia V3R 1M7

556267 B.C. LTD.

1598 Sixth Avenue

Prince George, British Columbia

V2L 5G7

6951 Westminster Highway

Richmond, British Columbia V7C 1C6

NOTICE AS REQUIRED BY ss.15 and 16 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241:

Let all persons whose interest may be affected by the order sought TAKE NOTICE that the Petitioner applies to Court for the relief set out in this Petition.

IF YOU WISH TO BE HEARD at the hearing of the Petition or wish to be notified of any further proceedings, YOU MUST GIVE NOTICE of your intention by filing a form entitled "Appearance" in the above registry of this Court within the Time for Appearance and YOU MUST ALSO DELIVER a copy of the "Appearance" to the Petitioner’s address for deliver, which is set out in this Petition.

YOU OR YOUR SOLICITOR may file the "Appearance". You may obtain a form of "Appearance" at the registry.

IF YOU FAIL to file the "Appearance" within the proper Time for Appearance, the Petitioner may continue this application without further notice.

Where this Petition is served on a person in British Columbia, the time for appearance that person is 7 days from the service (not including the day of service).

Where this Petition is served on a person outside British Columbia, the time for appearance by that person after service, is 21 days in the case of a person residing anywhere within Canada, 28 days in the case of a person residing in the United States of America, and 42 days in the case of a person residing elsewhere. [or, where the time for appearance has been set by order of the Court, within that time].

(1) The address of the registry is:

1. The ADDRESS FOR DELIVERY is:

CONNELL LIGHTBODY

Barristers & Solicitors

Box 11161, Royal Centre

1900 – 1055 West Georgia Street

Vancouver, B.C. V6E 4J2

Attention: Tim Williamson

Phone: (604) 684-1181

Fax number for delivery: (604) 641-3916

 

2. The name and office address of the Petitioner’s solicitor is:

Barristers & Solicitors

Box 11161, Royal Centre

1900 – 1055 West Georgia Street

Vancouver, B.C. V6E 4J2

Attention: Tim Williamson

Phone: (604) 684-1181

Fax number for delivery: (604) 641-3916

The Petitioner applies to this Court for:

1. A Declaration that Section 4.83(3) of the Occupational Health and Safety Regulation, B.C. Reg.29/97 is null and void.
2. In the alternative, a Declaration that Sections 4.81 to 4.83 of the Occupational Health and Safety Regulation are null and void.
3. An interim injunction restraining the Respondent from enforcing compliance with Sections 4.81 to 4.83 of the Occupational Health and Safety Regulation against the Petitioners or any other person until final judgment is given in this proceeding.
4. An Order that the Respondent provide discovery to the Petitioners all notices, minutes, notes, agendas, transcripts and records of the public hearing held at 13 venues from September 17, 1996 to October 4, 1996, which are referred to in the fourth paragraph of the recitals of the said Occupational Health and Safety Regulation.
5. An Order that the issue of whether Section 4.83(3) of the Occupational Health and Safety Regulation is void be set for trial, and that all pre-trial process be available to the parties.
6. Costs.

The grounds upon which the application by the Petitioners for the Orders sought is brought, are:

1. Section 71(1) of the Workers Compensation Act and Section 4 of the Workplace Act, under which the Occupational Health and Safety Regulation was passed, require that a public hearing must be held on the purposed regulation before it is adopted. No public hearing was held relating to the provision enacted as Section 4.83(3) of the Occupational Health and Safety Regulation.
2. An Order that the Respondent disclose records relating to the public hearings which were held relating to the draft Occupational Health and Safety Regulations is necessary for the Court to make a finding on whether the requirements of a public hearing were complied with.
3. The Respondent’s enforcement of Section 4.81 of the Occupational Health and Safety Regulation prior to judgment being given in this proceeding should be restrained, because the balance of convenience favours preserving the rights of businesses to operate in their accustomed manner until the validity of the new regulations is determined.
4. A trial of this matter including full discovery may be necessary to provide for full discovery of evidence relating to the enactment of Section 4.83(3) of the Occupational Health and Safety Regulation, including the basis on which the Respondent decided to make that regulation.

The Petitioners seek relief under:

1. Sections 2, 10, and 17 of the Judicial Review Procedure Act.
2. Rule 10(1)(a) of the Rules of Court.
3. Rule 52(8) and 52(11) of the Rules of Court.
4. Rule 57 of the Rules of Court.

At the hearing of this Petition will be read:

(a) The Affidavit of Al Arbuthnot, sworn on January 21, 2000.

(b) The Affidavit of Kevin John Pugh, sworn on January 23, 2000.

(c) The Affidavit of Elia Sterling, sworn on January 25, 2000.

copies of which are served herewith.

The facts upon which this Petition is based are as follows:

1. The Petitioner the Neighbourhood Pub Owners Association is a Society incorporated pursuant to the laws of the Province of British Columbia with a registered and records office at #109, 14914 – 104th Avenue, in the City of Surrey, in the Province of British Columbia.
2. The Petitioner 556567 B.C. Ltd. is a Company incorporated pursuant to the laws of the Province of British Columbia with a registered and records office at 1598 Sixth Avenue, Prince George, British Columbia.
3. The Respondent is a statutory corporation continued under Section 80 of the Workers Compensation Act, R.S.B.C. 1996, c. 492, s. with a head office at 6951 Westminster Highway, in the City of Richmond, in the Province of British Columbia.
4. The Respondent had the authority, at the time the Occupational Health and Safety Regulation, B.C. Reg. 296/97 was made, under Section 71 of the Workers Compensation Act, R.S.B.C. 1996, c. 492, and the Workplace Act, R.S.B.C. 1996, c. 493, to make regulations for certain purposes in the manner set out in those statutory provisions. That authority was a "statutory power" as defined in Section 1 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
5. Section 71 of the Workers Compensation Act provided that public hearings must be held before the adoption of regulations by the Respondent.
6. Public hearings were held regarding proposed provisions of the Occupational Health and Safety Regulation, but the provision adopted as Section 4.83(3) was not the subject of the public hearings.
7. Section 4.83(3) of the Occupational Health and Safety Regulation was added to the draft regulations after the public hearings not as a result of submissions made at the public hearings but as a result of

1. recommendations made to the Respondent privately, after the public hearings or alternatively previously; and
2. internal judgments and considerations made by the Respondent regarding the advisability of Section 4.83(3).

1. On July 15, 1997, the Respondent approved the Occupational Health and Safety Regulation.
2. On September 8, 1997, the Occupational Health and Safety Regulation was deposited with the Registrar of Regulations, to come into force on April 15, 1998.
3. The Petitioners say that Respondent acted outside its jurisdiction in passing Section 4.83(3) of the Occupational Health and Safety Regulation, on the basis that there was no public hearing as required by the Workers Compensation Act.
4. The Petitioner the Neighbourhood Pub Owners Association of British Columbia is a representative of (inter alia) owners of establishments that serve food and beverages including alcoholic beverages to members of the public, whose private rights are interfered with by the Occupational Health and Safety Regulation, and in particular Section 4.83(3), because the establishments represented by the said Petitioner are required by the Occupational Health and Safety Regulation, in effect, to enforce on their patrons a prohibition against smoking, thus limiting the freedom of those establishments to operate. In addition, Section 4.83(3) of the Occupational Health and Safety Regulation may adversely affect the said businesses, because the ban on smoking in them will reduce their profitability by discouraging smokers from attending at their premises and buying and consuming food and beverages.
5. The Petitioner 556567 B.C. Ltd. operates a neighbourhood pub business in Ladysmith, in the Province of British Columbia, under the name "Rocky Creek Pub". The Petitioner 556567 B.C. Ltd. has operated the Rocky Creek Pub since June, 1998. The Petitioner 556567 B.C. Ltd.’s private rights are interfered with by the Occupational Health and Safety Regulation and in particular Section 4.83(3), because the said Petitioner is required by the Occupational Health and Safety Regulation in effect to enforce on its patrons a prohibition against smoking, thus limiting the said Petitioner’s freedom to operate its business. In addition, Section 4.83(3) of the Occupational Health and Safety Regulation adversely effect the said Petitioner, because the prohibition against smoking in Rocky Creek Pub will reduce the profitability of the Rocky Creek Pub by discouraging smoking customers from attending, and from buying and consuming food and beverages.
6. In the alternative, the Petitioners have a genuine interest in the validity of Section 4.83(3) of the Occupational Health and Safety Regulation, there is a serious issue as to the validity of that Section, and there is no other reasonable and effective way to bring this issue before the Court that by this proceeding.

Dated_______________________ ______________________________

Solicitor for the Petitioners

If you wish to receive notice of the time and date of hearing or to respond to the Petition, you must respond by delivering to the Petitioner, within 6 clear days after you have entered an appearance:

1. an Outline in Form 125;
2. 2 copies of each Affidavit, not already in the Court file, on which you intend to rely at the hearing, and
3. one copy of any material in the Court file on which you intend to rely at the hearing and that is not referred to in the Petitioner’s outline.

IF YOU DO NOT RESPOND AS REQUIRED BY THAT RULE, YOU WILL NOT BE GIVEN NOTICE OF THE HEARING AND THE HEARING MAY PROCEED WITHOUT YOU.