Opponents of a ban on the sale of flavoured vaping products in New Brunswick are making a second attempt to have the new law suspended.

Lawyers Mel Norton and Joan Kasozi argued in the New Brunswick Court of Appeal on Tuesday that a Court of Queen's Bench judge incorrectly left out evidence when he denied an injunction to have the ban suspended last month.

They also argued that Justice Terrence Morrison erred in not finding irreparable harm caused by the new legislation under the Tobacco and Electronic Cigarette Sales Act, which, as of last September, effectively banned the sale of all vaping products mimicking the flavour of anything aside from tobacco.

Norton and Kasozi represent six people, including former tobacco smokers and convenience store owners, who originally filed a statement of claim against the province on Feb. 7 alleging it violated their charter rights with the introduction of the new law.

The plaintiffs include Charles Byram, Kayleigh Miller, Donald Vosburgh, Roderick Pollard, Infinity Vapes Inc., FOV Labs Inc., and Anthony Miller.

The claim alleges that banning flavoured vape products will cause those who vape as a way to combat their tobacco addiction, to return to smoking "more dangerous substances which increase their risk of serious and potentially fatal health conditions." 

As a result, they allege the law violates a person's right to life, liberty and security, guaranteed under Section 7 of the Charter of Rights and Freedoms. They also claim it violates their right to equal treatment under the law, guaranteed under Section 15.

Following their original claim, the plaintiffs filed a motion to suspend the new legislation until the case was heard in court, and on March 31, Morrison denied the request, prompting them to seek leave to appeal with the New Brunswick Court of Appeal.

In presenting the intended appellants' arguments, Norton said Morrison incorrectly left out affidavits by expert witnesses, as well as supplemental affidavits by plaintiffs in the case — such as that from Anthony Miller — when he denied their injunction.

"The intended appellants submit it was not appropriate to reject evidence put forward to demonstrate this material issue — the issue of individuals like Mr. Miller having to return to smoking [because of the ban on the sale of flavoured vape products]," Norton said.

Kasozi, Norton's co-counsel, also argued that Morrison erred in how he applied a test used to establish "irreparable harm" for persons whose charter rights have been infringed.

Kasozi said while Morrison did not find that the plaintiffs had returned to smoking in the months since the ban took effect, he failed to consider the future possibility of them returning to tobacco.

She also argued Morrison failed to properly consider the financial harm that would be felt by some of the plaintiffs, whose primary revenue comes from selling flavoured vaping products.

"They would not survive this litigation process until their day in court," she said. "This would eventually result in them not being able to seek relief and would insulate the government from charter scrutiny."

Responding on behalf of the province, lawyer Rose Campbell said the applicants' motion for leave to appeal raises no new issues or errors in Morrison's decision.

She also argued they were attempting to "get in through the back door what they couldn't get through the front door" by bringing up affidavits that were deemed inadmissible as evidence by Morrison.

Campbell also said the law, also known as TECSA, doesn't stop people from vaping, but just outlaws the sale of vaping products that are "attractive to youth."

"We submit it is balanced and it was a thoughtful and proportional response to the issue — the public health issue.

"This legislation was in response to startling trends of increased youth uptake in vaping and the attractiveness of flavours,:

She added that New Brunswick already has a long history of regulating in the area of tobacco.

Appeal Court Justice Bradley Green said he would reserve his decision on whether to grant leave to appeal, adding he expects to have one "as quickly as possible."

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