Smoke rises again in B.C. restaurants, bars, prisons

WCB failed to consult them re workplace ban

Hard on the heels of an arbitrator’s decision that smoking is a disability, a judge has overturned a B.C. workers’ compensation regulation banning smoking in restaurants, bars, medical- care facilities and prisons.

In our last edition, we reported that an arbitrator struck down a smoking ban at the Cominco mine in Trail, B.C. Smoking amounted to a disability under the provincial human rights code, arbitrator Dalton Lawson ruled, and Cominco had failed to make sufficient efforts to accommodate the addicted.

Now, Justice Sunny Stromberg-Stein has ruled that the B.C. Workers’ Compensation Board acted unfairly in removing an exemption for the hospitality industry from its workplace smoking bans.

The province’s Workers’ Compensation Act requires that the board hold public hearings before it makes regulations. It did so concerning the workplace smoking ban, but, on the understanding that it was exempted from the ban, the hospitality industry ignored the hearings.

At that time, when the smoking regulations were at the proposal stage, bars, restaurants, care facilities and jails were indeed exempted, on the reasoning that their workplaces were frequented by the general public. Of course, the board does not have jurisdiction over non-workers.

However, in making the regulations final, the board adopted a suggestion that the exemption should end on January 1, 2000, the thinking being, apparently, that if the facilities didn't want to ban smoking outright, they would have to make other arrangements, such as special ventilation or smoking areas, to protect their workers’ health.

The board did not forewarn the affected businesses and institutions, who in practice faced a complete smoking ban for the new millennium.

Justice Stromberg-Stein has ruled that this procedure breached the board’s legal duty to give proper notice and hold public hearings on the actual regulations.

To the argument that the public consultation had been sufficient, Justice Stromberg-Stein has replied, “I find it difficult to conceive of notice which could be more potentially misleading than the notice here where certain facilities, including the hospitality sector, were assured that their interests were not affected, only to later find the extreme opposite effect.

“The inadequacy of the notice was apparent from the mere fact that those who might reasonably have been expected to object to the removal of the exemption made no submissions at the public hearings.

“In my view, where changes ultimately flowing from the public hearing process are so significant [particularly in that they affected the business’s economic viability] as to render the original notice insufficient to have alerted those whose interests may be affected, then that notice and the public hearings are inadequate for the purpose of the newly constituted regulation.

“To hold otherwise would undermine the very purpose of the public hearing process and would lead to an unfair process by which only some of those affected would be afforded the opportunity to raise their concerns and objections.”

For more information:

B.C. Liquor Licencees v. British Columbia (Workers’ Compensation Board), British Columbia Supreme Court docket L000212, Vancouver registry, Mar. 22/00.

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