Publication
The Act to amend the Tobacco Act and other legislative provisions (Bill 112) was assented to on June 17, 2005[1] and most of its provisions will come into force on May 31, 2006. The aims of the amendments include banning smoking in places where smoking has not, until now, been prohibited under the Tobacco Act, imposing further restrictions on smoking in the enclosed spaces where smoking is currently permitted under the Act, and amending the rules applicable to the sale of tobacco.
Quebec employers have long been familiar with the prohibitions on smoking in the workplace imposed by the Tobacco Act, but as of May 31, 2006, when the Bill 112 amendments begin to apply, they will have some new obligations to meet.
PRESUMPTION THAT SMOKING IN A PROHIBITED AREA WAS TOLERATED BY THE EMPLOYER
The Tobacco Act already provided that the employer had a duty not to tolerate smoking in areas where smoking is prohibited.
In practice, however, violations of the Act were difficult to prove in court. The prosecution had to show that the employer's representatives knew that smoking was going on in a place where it is prohibited by law and that they allowed the practice to continue.
Bill 112 now makes the prosecution's task considerably easier, establishing that once it is determined that smoking took place in an area where smoking is banned, the operator of the place or business concerned is deemed to have allowed smoking to go on there. Thus, the burden of proof is reversed and it will now be up to the operator to prove that it did not tolerate the practice. The presumption is created by section 12 of Bill 112, which adds the following paragraph to the original provision:
In proceedings for a contravention of the first paragraph, the operator of the place or business is deemed to have tolerated smoking in an area where smoking is prohibited if it is shown that a person smoked in that area. The onus is on the operator to show that smoking was not tolerated by the operator in an area where smoking is prohibited.
It is clear from this wording that merely posting signs in appropriate locations in their business premises indicating that smoking is prohibited, or publishing and circulating a set of rules and regulations for staff that includes such a prohibition, will not be enough and that employers will have to do more.
An employer charged with an offence will have to demonstrate that it took concrete steps to enforce the prohibitions imposed by the Act. Such steps could include the following: making the prohibition on smoking the subject of a formal written policy, providing training to current and future staff to ensure that they know and understand the policy, issuing instructions to supervisory and managerial personnel to crack down on violations that come to their attention, taking swift action when a complaint is lodged, and taking disciplinary action against employees or issuing warnings to visitors who fail to abide by the law.
COMPANY OFFICERS MAY BE LIABLE FOR OFFENCES
As we saw in the past, smoking in an area where smoking is prohibited could lead to charges against two types of offenders, either the individual who failed to abide by the ban or the operator of the place or business (usually a company) where the smoking is alleged to have taken place. This will no longer be the case.
Effective May 31, 2006, under the changes introduced by Bill 112, not only the company itself but also the individuals in the company who "consented" to the commission of an offence will be liable for the offence. Section 52 of Bill 112 adds a section to the Act which provides that:
Where a legal person, partnership or association commits an offence against this Act or a regulation, a director, officer, partner, employee or mandatary of the legal person, partnership or association who directed, authorized or advised the commission of the offence or consented to it is a party to the offence and is liable to the same penalty as that prescribed for committing the offence, whether or not the legal person, partnership or association has been prosecuted or found guilty.
Obviously, the courts will have to decide what is meant by "consenting" to the commission of an offence, especially in light of the presumption discussed above. It should also be noted that proceedings may be taken against an officer regardless of the outcome of the proceedings taken against the company or the individual who committed the offence, and even if no proceedings were taken against the company or individual.
However, there is every reason to believe that the customary due diligence defence, available in penal matters generally, will apply to offences under the Tobacco Act and that on that basis, it will still be possible for an officer charged with an offence to be acquitted on convincing a judge that he or she took every possible action to prevent smoking from taking place in an area under his or her authority or that the offence was committed without his or her knowledge in spite of the mechanisms put in place to prevent such incidents from occurring.
The amounts of the fines associated with smoking in a prohibited area have not changed. Thus, the fine for the smoker is still $50 to $300 per offence, and $100 to $600 for a subsequent offence, while the fine for the operator of the place or business is $400 to $4,000 per day, and $1,000 to $10,000 for a subsequent offence.
SMOKING ROOMS TO BE PHASED OUT BY MAY 30, 2008
The Act as previously framed had allowed employers wishing to set up closed smoking rooms for their staff to do so on condition that the smoking rooms meet strict ventilation standards.
Bill 112 grants a grace period, which will expire on May 31, 2008, permitting such smoking rooms to be maintained for the exclusive use of company officers and employees. As of that date, the general prohibition set forth in section 2 of the Tobacco Act will apply without exception in the workplace and it will no longer be possible for anyone to use such smoking rooms.
The specifications applicable to such smoking rooms are now fully incorporated into the Act, rather than being prescribed by regulation. The third paragraph of section 69 of Bill 112 reads as follows:
TRANSPORTATION VEHICLES
Finally, in accordance with new section 2(10) of the Tobacco Act, smoking will now be prohibited in all vehicles carrying two or more persons that must be used in the course of employment. Previously, the prohibition on smoking in such vehicles could be overridden if all passengers in the vehicle were in agreement.
Note: This bulletin deals only with the provisions that apply to ordinary company workplaces. The legislation includes exceptions that pertain to particular types of buildings (dwellings, homes for the elderly) as well as more restrictive provisions for certain types of establishments such as pubs, restaurants, schools, private clubs, etc.
[1] S.Q. 2005, c. 29.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.
© Ogilvy Renault LLP 2006 - All Rights Reserved
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