The Town of Newmarket has won a months-long legal battle against a massage business after the town appeal committee upheld a business licence denial.
The municipal appeal committee ruled in favour of the town denying a licence under the personal wellness establishments bylaw for Top Health. Given the evidence, it found Top Health was marketing sexual services and continued to operate without a licence after being ordered to halt operations.
As a result, the committee dismissed Top Health’s licence appeal.
“The committee finds there is a reasonable basis to conclude that Top Health was historically offering sexual services right through to when the licensing bylaw was enacted and beyond its enactment; and that, on a balance of probabilities, Top Health continued to offer and arrange for sexual services following submission of its application,” the ruling said.
The town’s personal wellness bylaw was established in February 2022, aiming in part to regulate alternative massage businesses, with the town alleging some were selling sexual services. After denying Top Health a licence, Top Health appealed, resulting in a lengthy legal battle with Top Health denying selling sexual services.
The bylaw states that businesses cannot offer sexual services. The town provided evidence of several screenshots from four websites linked in some way to Top Health. Top Health’s counsel argued that a third party could have made those ads, but the committee found there is a reasonable basis that Top Health was offering sexual services.
The committee also cited a text exchange between town officer Jacob Brewer and a Top Health employee from March 17, 2022, to show that Top Health has continued to offer sexual services following its application for a licence. The exchange showed Brewer anonymously solicted sexual services, and a Top Health respondent said he should attend the business rather than talk over the phone. Although Top Health’s counsel tried to represent Brewer's actions as improper and unprofessional, the committee did not agree.
“Clearly, it was intended to provoke a response and succeeded in doing so,” the ruling said. “Given the nature of the investigation, the committee does not consider this conduct to be improper on the part of an investigating officer and did not constitute sexual harassment, as suggested by counsel for Top Health.”
The town’s case was also predicated on Top Health not adhering to the bylaw by continuing to operate after being ordered to cease operations. The town provided evidence of officers approaching and observing the business as being open.
NewmarketToday reached Top Health by telephone and a person confirmed it was the business. The person said they did not speak English well enough to comment.
The licence was also initially refused based on education. The bylaw requires the business to show workers have education from an accredited institution and the town stated Top Health did not provide sufficient proof. After the licence denial, Top Health workers did attend a course at York University approved by the town, which the committee said should satisfy the bylaw's education requirements.
“If this was the only issue to resolve at this appeal, the committee would have granted the appeal and issued the licence,” the ruling said.
Another alternative massage business, RMT Wellness Centre, also initially appealed a licence refusal from the town. But the business did not attend its hearing, having apparently left the municipality before the hearing took place.
No other appeals under the town’s personal wellness establishment bylaw have come forward to the town’s appeal committee.
The bylaw has previously garnered pushback from multiple legal and advocacy organizations, who expressed that it unfairly targeted Asian workers and was racist.
