I was planning to write a letter to The Gazette about the article “Bar Owners’ group Vows to fight Quebec Smoking Ban on Terrasses” that appeared in the Saturday, May 2nd, edition, written by Geoffrey Vendeville, but instead the letter became the present column.

Upon reading the article I am reminded of the time not so long ago when Big Tobacco tried to convince us that there was no proof that first hand smoke was bad for our health.

It was 1964 when the U.S. Surgeon General released the first report, based on earlier research dating as far back as 1950, outlining that smoking was a cause of lung cancer, laryngeal cancer and chronic bronchitis. Big Tobacco won the initial lawsuits against it in the 1950s through the 1980s, all based on arguments which included the infamous “Tobacco is not harmful” refrain. It wasn’t until documents were leaked in the 1990s that the tide turned, culminating in a California jury award in an individual case that “ordered the Philip Morris company to pay $51 million dollars to a man with inoperable lung cancer”. (Nolo.com – by Kathleen Michon, J.D.)

Also in the 1990s, 40 states sued Big Tobacco under The Consumer Protection and Antitrust Laws. Furthermore, 46 State Attorney Generals were able to settle with the 4 biggest companies of Big Tobacco for $206 Billion dollars over 25 years to be paid to the states. “Light cigarette” litigation is next. For more information on this aspect see “Tobacco Litigation: Claims involving light cigarettes” (also by Nolo).

The 1980s and 1990s also saw a rise in cases against employers and hospitality venues (read “public areas”). In Australia, a continent known for being at the forefront of previously unconsidered legal issues, the precedents set there have a habit of floating up through California, east across the U.S. and ultimately up into Canada.

The basis of these types of lawsuits, in common law, is “Duty of Care”. Interestingly enough, in a case there – Bowles vs Canton Pty Ltd. – (2003) Tobaccoinaustralia.org.au – a patron of the restaurant, who suffered an asthma attack triggered by exposure to 2nd hand smoke, was awarded $10,000.00 (+ medical expenses etc., for an additional $866.00). This same logic will ultimately apply here both to the staff, who must wait on smokers’ tables, as well as the non-smoking patrons who want to take their meals outside on terrasses without having smoke floating over to them. So Bar owners here should take heed. Such awards will seriously cut into profits more than will banning smoking on terrasses!

As for being “catastrophic” for the industry, as suggests the union president of the Union des tenanciers des bars du Quebec which regroups some 800 bar keeps, this is the exact same cry of alarm we heard when smoking was banned inside the restaurants, which cause for alarm proved mostly untrue, or again when BYOB restaurants became popular. We still go out to eat in restaurants and the restaurants still make money. “To paraphrase a famous movie line – “Make great food and they will come”.

Another argument against the ban is smog/pollution. Even if smog proves to be more dangerous, which some studies have shown NOT to be the case, so what? Why add to the danger? For those who want to poison their lungs by smoking, I say – stay home and do it there. The rest of us don’t need that kind of help.

Finally, the C.D.C. clearly states that efforts for prevention must be continued and expanded. Banning outside terrasse smoking is therefore the next logical step for restaurants (and office buildings). So thank you Philippe Couillard for this progressive leap forward with regards to our health.

Me Hammerschmid is a practicing Family Law Attorney since 1982 and Senior Partner at Hammerschmid & Associates, 1 Westmount Square, Suite 1290; and a founding and current member (past Secretary for 28 years) of the Family Law Association of Quebec. She can be reached at 514-846-1013 or hammerschmid@vif.ca. Inquiries treated confidentially.
A frequent guest inn CBC TV/Radio, CTV and CJAD on Family Law; Me Hammerschmid is a monthly guest with Dr. Laurie Betito on CJAD’s Passion, on the last Thursday of each month.