Mike Kennedy, the founder and a director of Smokers Choice, was charged under Ontario's Smoke-Free Act in 2006.Mike Kennedy, the founder and a director of Smokers Choice, was charged under Ontario's Smoke-Free Act in 2006. (CBC)

The Supreme Court of Canada is refusing to hear an appeal by the owner of a smoking club who argued the facility was private and therefore Ontario's smoking regulations didn't apply to it.

"I'm astonished," said Mike Kennedy, founder and director of the Smokers Choice club, after learning his appeal was dismissed Thursday. "They've crossed the line — they've gone into private places. … This is a decision that private places do not exist."

Kennedy had been fighting the Leeds, Grenville and Lanark District Health Unit over being fined for violating provincial laws that prohibit indoor smoking under most circumstances. Kennedy had been charged in 2006 with five counts under the province's Smoke-Free Ontario Act. They concerned Do' Little's pub in Smiths Falls, which Kennedy had set up as a private facility where club members could smoke indoors while eating and drinking. Smiths Falls is about 65 kilometres south of Ottawa.

Excerpt from the Smoke-Free Ontario Act

Prohibition

9. (1) No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace. 2005, c. 18, s. 9.

Other prohibitions

(2) No person shall smoke or hold lighted tobacco in the following places or areas:

1. A school as defined in the Education Act.

2. A building or the grounds surrounding the building of a private school, where the private school is the only occupant of the premises, or the grounds annexed to a private school, where the private school is not the only occupant of the premises.

3. Any common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.

4. A day nursery within the meaning of the Day Nurseries Act.

5. A place where private-home day care is provided within the meaning of the Day Nurseries Act, whether or not children are present.

6. The reserved seating area of a sports arena or entertainment venue.

7. A prescribed place or area. 2005, c. 18, s. 9.

The health unit maintainted the the facility was, in fact, a public place.

"What he had set up was in a former bar and it was not a private residence," said Yves Decoste, tobacco program co-ordinator for the health unit. "And he was inviting members of the public … to join him."

Kennedy argued that Ontario smoking laws applied only to public places and Do' Little's didn't qualify. The club, which had about 500 members, charged $4 per month for membership, and only people who showed their membership cards were allowed in the building. All serving was done by volunteers and there were no employees, the club reported.

Kennedy appealed the fines in lower courts and lost.

The Supreme Court did not provide any reasons for dismissing the case, which was summarized on the court's website as questioning "whether there is a lack of clarity in distinguishing public places from private places for the purposes of smoking regulation statutes."

As part of the decision, Kennedy has been ordered to pay the health unit's legal costs. As of Thursday, he did not know how much that would be.

Kennedy started Smokers Choice after a City of Ottawa smoking ban in 2001. He successfully challenged the bylaw in court the following year, but failed to establish a club in Ottawa similar to the one in Smiths Falls.