The City of Toronto has given notice that it intends to appeal a court ruling that struck down a bylaw that banned the sale, possession or consumption of shark fins and related food products in the municipality.
Ontario Superior Court Justice James Spence declared the bylaw invalid because it did not have a legitimate “municipal purpose” and as a result was outside the powers of the city, in a ruling issued Nov. 30.
A Notice of Appeal of that ruling was served on Dec. 31 to the lawyers representing four members of the Chinese business community who successfully challenged the bylaw. The formal documents outlining the grounds of appeal are expected to be filed in Ontario Divisional Court early next week, a spokesman for the city said Wednesday.
The actions taken by the city’s legal department over the holidays preserves its right to appeal the Superior Court ruling, which would have expired on Jan. 1. It will be up to city council to decide whether to proceed with the appeal, which is expected to be decided later this month or in February.
Glenn De Baeremaeker, one of the councillors who led the move to pass the shark fin bylaw in October, 2011, said Wednesday he is confident that his colleagues will vote to go ahead with the appeal. “We have political support from all sides,” he said.
The bylaw that Justice Spence found invalid was passed by a vote of 38-4 at council, with the only votes against the ban cast at that time by Mayor Rob Ford and councillors Doug Holyday, Giorgio Mammoliti and David Shiner.
If the city goes ahead with the appeal and is unsuccessful, it could ultimately be required to pay tens of thousands of dollars in legal costs to the other side.
Bylaws and other decisions made by the city are routinely challenged in court, noted Mr. De Baeremaeker, and this should not dissuade council from going ahead with the appeal. “The potential legal costs are not enormous. It is not more or less than we would do with any other bylaw. We think we have strong legal arguments,” he said. “We have legal opinions from very prominent lawyers, saying that we do have these powers.”
The councillor explained that he would also be open to amending the bylaw so that its intent is clear, which is to prohibit commercial sales of shark-fin products. “We aren’t going to be invading people’s homes to see if you are having a bowl of shark-fin soup. It is not in the interest of the City of Toronto to have shark-fin police,” he said.
The lawyers representing the four individuals who challenged the shark-fin prohibition said Wednesday they had no comment at this time. At the Superior Court hearing last fall, lawyers Andrew Roman and Andy Chan argued that the ban unfairly targeted the Chinese community and that there are no city prohibitions on food or clothing products enjoyed by any other ethnic group.
Justice Spence agreed that shark finning – cutting off the animal’s fins and tossing the torso overboard – is inhumane. But the court heard that 95 per cent of shark fins are consumed in China. “The ban will not by itself have any identifiable benefit for Toronto with respect to the environmental well-being of the city,” wrote Justice Spence in finding the bylaw invalid.
A half dozen other municipalities in Ontario have enacted shark-fin bans, although the Toronto case was the first court challenge to this type of municipal restriction.
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