Banning smoking on employer’s property

Can smoking be banned anywhere on the property, even outside?

Brian Johnston
Question: Can an employer prohibit employees from smoking anywhere on company property, even if it's outside? How does the law on smoking in the workplace compare in different provinces?

Answer: Employers have been successful in implementing smoking policies that prohibit smoking anywhere on company property. However, they should not breathe too easy just yet, as courts have not fully determined the issue of whether such a policy violates human rights legislation.

In a recent Ontario case, an arbitration board found a smoking ban implemented by Invista Canada did not violate its collective agreement. Despite the fact another company policy prohibited many workers from leaving the premises during their shift, which essentially banned smoking for a complete 12-hour shift, the board found this total smoking ban on company property was permitted. It must be noted, however, the union did not challenge whether the provisions of the smoking ban violated human rights legislation and the union has reserved the right to raise that issue in a future grievance.

Both the Charter of Rights and Freedoms and human rights legislation prohibit discrimination on the basis of a disability. Whether smoking can be considered a disability has not been fully determined. In R. v. Ample Annie’s Itty Bitty Roadhouse, the Ontario Court of Justice determined smoking is not a disability under the charter but also said determining a disability under the charter is different than determining it under human rights legislation.

In Cominco Ltd. v. The United Steelworkers of America, Local 9705, a British Columbia arbitration board determined that smoking is a disability. Provided with ample scientific evidence, the board found nicotine was as addictive as cocaine or heroine. As a result, Cominco was not able to implement a new workplace smoking policy that would prohibit the use and possession of tobacco anywhere on company property as it would discriminate against smokers who were considered disabled under human rights legislation. The extent that an employer would be required to accommodate smokers remains to be determined.

Despite the ruling in Cominco, more employers are successfully prohibiting smoking on their property, forcing smokers to use public property. The success of these programs is likely related to society’s changing attitude towards smoking and the increasingly stringent provincial smoking regulations.

Although there is currently no provincial legislation that requires employers to prohibit smoking on all property, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland and Labrador prohibit smoking in all enclosed public places and workplaces, including restaurants and bars. A number of provinces also prohibit smoking on restaurant or bar patios as well as in vehicles operated for a work purpose. British Columbia, Alberta and Prince Edward Island prohibit smoking in most indoor workplaces, although all allow limited smoking indoors in restaurants, bars and venues such as casinos, bingo halls and bowling alleys. In these provinces many municipalities enforce stricter standards.

For more information see:

Cominco Ltd. v. U.S.W.A., Local 9705 (February 29, 2000), Doc. A-046/00 (B.C. Arb. Bd.).
Kingston Independent Nylon Workers Union v. Invista Canada, 2007 CarswellOnt 9156 (Ont. Arb. Bd.).
R. v. Ample Annie's Itty Bitty Roadhouse, 2001 CarswellOnt 6078 (Ont. C.J.).

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or bjohnston@smss.com.

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