The legal saga of a Newmarket massage parlour allegedly offering sexual services is coming to a head as an appeal committee decides on whether there is enough evidence of the charge.
Lawyers submitted their concluding arguments in the case of Top Health Centre this week, with the appeal committee discussing them May 16. The legal battle that has stretched over seven months concerns the denial of a business licence for Top Health Centre due to online advertisements linked to sexual services, which contravenes the town’s new massage parlour bylaw.
Top Health Centre lawyer Marcus McCann said the town failed to confirm who posted the ads for sexual services on the website LeoList, as well as other sexual websites, linking to Top Health’s address. He argued that the evidence was not strong enough and the business should be granted its licence, potentially with conditions.
“This is a fitting remedy in light of the fact that there is no prior history with the town before the events described in this case,” McCann said. “There is no evidence that any sexual services were performed, the attendants have no criminal records and they demonstrated good faith.”
The case is the first major legal test for Newmarket’s new alternate massage bylaw, introduced in 2021 to address locations suspected of selling sexual services. It introduced more stringent requirements for places offering alternative forms of massage, including educational requirements. The bylaw has attracted controversy, with advocacy groups arguing it is unfairly targeting Asian-run massage parlours and is discriminatory.
A central point of the case is online ads on third-party websites offering illicit sexual services linked to the business address. McCann said they do not stand up without the town knowing who posted them and that there are inconsistencies, such as the phone number not otherwise linked to Top Health.
He further said the actions of a municipal bylaw officer to attempt to solicit sexual services via text message were improper and should not be used as evidence.
“This is sexually harassing conduct that the Town of Newmarket should not accept or endorse. (Bylaw officer Jacob) Brewer was acting in his official capacity as a representative of the town, and the town cannot condone Mr. Brewer’s crudeness,” McCann said.
Town lawyer Howard Levitt rebutted McCann’s argument and said the defence failed to properly rebut the ads with key evidence missing, such as an interior of the business.
Regarding the text exchange from Brewer, Levitt said it stands as evidence, with the bylaw officer directed via text to attend Top Health to discuss the matter in person.
“It is absurd that the appellant is making a public policy argument to exclude evidence admitted by the committee on the basis that Mr. Brewer had somehow acted inappropriately in sending a suggestive text. He acted in the manner he should have in order to prove that the spa was marketing and offering sexual services,” Levitt said.
The two sides also argued about the defence not calling any witnesses, notably anyone working or involved with Top Health. Levitt said they could have simply appeared to deny the accusations, with translation services available.
“Although there is no requirement to testify, an adverse inference must be drawn from a party’s failure to do so,” Levitt said. “The appellant could have easily testified that it does not provide sexual services, that it did not post the LeoList or any sexual advertisements and did not direct anyone to do the same … the appellant’s failure to do so is dispositive.”
McCann said the defendants provided plenty of evidence in the documentation for the committee and argued the town’s evidence was “circumstantial.”
The committee indicated it would take some weeks to make a decision in the case.
Regardless of the outcome in this case, the town will face another legal appeal under the bylaw. VIP RMT Wellness Center has also appealed a denial of a business licence, with those hearings set to begin in June.
