Tobacco Control Statute Law Amendment Act, 2005, S.O. 2005, c. 18 - Bill 164
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chapter 18
An Act to rename
and amend the
Tobacco Control Act, 1994,
repeal the Smoking in the
Workplace Act and make
complementary amendments
to other Acts
Assented to June 13, 2005
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. The short title of the Tobacco Control Act, 1994 is repealed and the following substituted:
Smoke-Free Ontario Act
2. The following provisions of the Act are amended by striking out “Minister of Health” and substituting “Minister”:
1. Section 8.
2. Subsections 14 (1) and (11).
3. Subsection 17 (2).
4. Clause 19 (1) (f).
3. (1) Section 1 of the Act is amended by adding the following definitions:
“employee” means a person who performs any work for or supplies any services to an employer, or a person who receives any instruction or training in the activity, business, work, trade, occupation or profession of an employer; (“employé”)
“employer” includes an owner, operator, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it; (“employeur”)
“enclosed public place” means,
(a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them,
(i) that is covered by a roof, and
(ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or
(b) a prescribed place; (“lieu public clos”)
“enclosed workplace” means,
(a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them,
(i) that is covered by a roof,
(ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and
(iii) that is not primarily a private dwelling, or
(b) a prescribed place; (“lieu de travail clos”)
“Minister” means the Minister of Health and Long-Term Care, unless otherwise specified; (“ministre”)
(2) Section 1 of the Act is amended by adding the following subsection:
Private dwelling
(2) For greater certainty, and without restricting the generality of the expression, the following are primarily private dwellings for the purposes of the definition of “enclosed workplace” in subsection (1):
1. Private self-contained living quarters in any multi-unit building or facility.
2. Any other prescribed place.
4. (1) Subsection 3 (2) of the Act is repealed and the following substituted:
Apparent age
(2) No person shall sell or supply tobacco to a person who appears to be less than 25 years old unless he or she has required the person to provide identification and is satisfied that the person is at least 19 years old.
(2) Subsections 3 (4) and (5) of the Act are repealed and the following substituted:
Vicarious liability
(4) The owner of a business where tobacco is sold shall be deemed to be liable for any contravention of subsection (1) or (2) on the premises where the contravention took place, unless the owner exercised due diligence to prevent such a contravention.
5. (1) The Act is amended by adding the following section:
Display
3.1 (1) No person shall,
(a) display or permit the display of tobacco products in any place where tobacco products are sold or offered for sale by means of a countertop display; or
(b) display or permit the display of tobacco products in any place where tobacco products are sold or offered for sale in any manner that permits the purchaser to handle the tobacco product before purchasing it.
Same, cigarettes
(2) No person shall display or permit the display of cigarettes in any place where cigarettes are sold or offered for sale unless the cigarettes are displayed in the following manner:
1. Only individual cigarette packages are displayed.
Promotion
(3) No person shall, in any place where tobacco products are sold or offered for sale, promote the sale of tobacco products through product association, product enhancement or any type of promotional material, including, but not limited to,
(a) decorative panels and backdrops associated with particular brands of tobacco products;
(b) backlit or illuminated panels;
(c) promotional lighting;
(d) three-dimensional exhibits; or
(e) any other device, instrument or enhancement.
Regulations
(4) The Lieutenant Governor in Council may make regulations governing what constitutes promotional material for the purposes of this section.
Interpretation
(5) In this section, “tobacco product” includes the package in which tobacco is sold.
(2) Subsection 3.1 (2) of the Act, as enacted by subsection (1), is repealed and the following substituted:
Display
(2) No person shall display or permit the display of tobacco products in any place where tobacco products are sold or offered for sale in any manner that will permit a consumer to view any tobacco product before purchasing the tobacco product.
6. The Act is amended by adding the following section:
Places of entertainment
3.2 (1) No person shall employ or authorize anyone to promote tobacco or the sale of tobacco at any place of entertainment that the person owns, operates or occupies.
Definition
(2) In this section,
“place of entertainment” means a place to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, and which is primarily devoted to eating, drinking or any form of amusement.
7. (1) Paragraphs 5 and 6 of subsection 4 (2) of the Act are repealed and the following substituted:
5. An approved charitable home for the aged under the Charitable Institutions Act.
(2) Subsection 4 (3) of the Act is repealed.
8. Subsection 7 (3) of the Act is repealed.
9. Section 9 of the Act, as amended by the Statutes of Ontario, 2002, chapter 8, Schedule P, section 6, is repealed and the following substituted:
Prohibition
9. (1) No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace.
Other prohibitions
(2) No person shall smoke or hold lighted tobacco in the following places or areas:
1. A school as defined in the Education Act.
2. A building or the grounds surrounding the building of a private school, where the private school is the only occupant of the premises, or the grounds annexed to a private school, where the private school is not the only occupant of the premises.
3. Any common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.
4. A day nursery within the meaning of the Day Nurseries Act.
5. A place where private-home day care is provided within the meaning of the Day Nurseries Act, whether or not children are present.
6. The reserved seating area of a sports arena or entertainment venue.
7. A prescribed place or area.
Employer obligations
(3) Every employer shall, with respect to an enclosed workplace or a place or area mentioned in subsection (2) over which the employer exercises control,
(a) ensure compliance with this section;
(b) give notice to each employee in an enclosed workplace or place or area that smoking is prohibited in the enclosed workplace, place or area in a manner that complies with the regulations, if any;
(c) post any prescribed signs prohibiting smoking throughout the enclosed workplace, place or area over which the employer has control, including washrooms, in the prescribed manner;
(d) ensure that no ashtrays or similar equipment remain in the enclosed workplace or place or area, other than a vehicle in which the manufacturer has installed an ashtray;
(e) ensure that a person who refuses to comply with subsection (1) or (2) does not remain in the enclosed workplace or place or area; and
(f) ensure compliance with any other prescribed obligations.
Prohibition
(4) No employer or person acting on behalf of an employer shall take any of the following actions against an employee because the employee has acted in accordance with or has sought the enforcement of this Act:
1. Dismissing or threatening to dismiss the employee.
2. Disciplining or suspending the employee, or threatening to do so.
3. Imposing a penalty upon the employee.
4. Intimidating or coercing the employee.
Complaint
(5) The Lieutenant Governor in Council may make regulations specifying provisions of another Act or any regulations that apply, with necessary modifications, where an employee complains that subsection (4) has not been complied with.
Proprietor obligations
(6) Every proprietor of an enclosed public place or a place or area mentioned in subsection (2) shall,
(a) ensure compliance with this section with respect to the enclosed public place, place or area;
(b) give notice to each person in the enclosed public place, place or area that smoking is prohibited in the enclosed public place, place or area in accordance with the regulations, if any;
(c) post any prescribed signs prohibiting smoking throughout the enclosed public place, place or area, including washrooms, in the prescribed manner;
(d) ensure that no ashtrays or similar equipment remain in the enclosed public place, place or area, other than a vehicle in which the manufacturer has installed an ashtray;
(e) ensure that a person who refuses to comply with subsection (1) or (2) does not remain in the enclosed public place, place or area; and
(f) ensure compliance with any other prescribed obligations.
Exception, residential care facility
(7) Subsection (1) does not apply to a person who smokes or holds lighted tobacco in an indoor room in a residence that also serves as an enclosed workplace if the conditions set out below are met, and the obligations under subsections (3) and (6) do not apply to a proprietor or employer with respect to such a room if the proprietor or employer complies with any prescribed requirements respecting the maintenance of the room:
1. The residence is,
i. a nursing home as defined in the Nursing Homes Act,
ii. an approved charitable home for the aged under the Charitable Institutions Act,
iii. a home as defined in the Homes for the Aged and Rest Homes Act,
iv. a residential facility that is operated as a retirement home and that provides care, in addition to accommodation, to the residents of the home, or
v. a supportive housing residence funded or administered through the Ministry of Health and Long-Term Care or the Ministry of Community and Social Services.
2. The room has been designated as a controlled smoking area.
3. A resident who desires to use the room must be able, in the opinion of the proprietor or employer, to smoke safely without assistance from an employee. An employee who does not desire to enter the room shall not be required to do so.
4. Smoking in the room is limited to residents of that facility.
5. The room is an enclosed space that,
i. is fitted with proper ventilation in compliance with the regulations,
ii. is identified as a controlled smoking area by means of prescribed signs, displayed in the prescribed manner, and
iii. meets any other prescribed requirements.
Psychiatric facility
(8) Subsection (1) does not apply to a person who smokes or holds lighted tobacco in an indoor room in a psychiatric facility that also serves as an enclosed workplace if the conditions set out below are met, and the obligations under subsections (3) and (6) do not apply to a proprietor or employer with respect to such a room if the proprietor or employer complies with any prescribed requirements respecting the maintenance of the room:
1. The psychiatric facility is designated in the regulations.
2. The room has been designated as a controlled smoking area.
3. A patient of the facility who desires to use the room must be able, in the opinion of the proprietor or employer, to smoke safely without assistance from an employee. An employee who does not desire to enter the room shall not be required to do so.
4. Smoking in the room is limited to patients of that facility.
5. The room is an enclosed space that,
i. is fitted with proper ventilation in compliance with the regulations,
ii. is identified as a controlled smoking area by means of prescribed signs, displayed in the prescribed manner, and
iii. meets any other prescribed requirements.
Facilities for veterans
(9) Subsection (1) does not apply to a person who smokes or holds lighted tobacco in an indoor room in a facility for veterans that also serves as an enclosed workplace if the conditions set out below are met, and the obligations under subsections (3) and (6) do not apply to a proprietor or employer with respect to such a room if the proprietor or employer complies with any prescribed requirements respecting the maintenance of the room:
1. The facility for veterans is designated in the regulations.
2. The room has been designated as a controlled smoking area.
3. A resident of the facility who desires to use the room must be able, in the opinion of the proprietor or employer, to smoke safely without assistance from an employee. An employee who does not desire to enter the room shall not be required to do so.
4. Smoking in the room is limited to residents of that facility.
5. The room is an enclosed space that,
i. is fitted with proper ventilation in compliance with the regulations,
ii. is identified as a controlled smoking area by means of prescribed signs, displayed in the prescribed manner, and
iii. meets any other prescribed requirements.
Hotels, motels, inns
(10) Subsection (1) does not apply to a person who smokes or holds lighted tobacco in a guest room in a hotel, motel or inn if the conditions set out below are met, and subsections (3) and (6) do not apply to a proprietor or employer with respect to a guest room described in paragraphs 2 to 5 if the proprietor or employer complies with any prescribed requirements respecting the maintenance of the guest room:
1. The person is a registered guest of the hotel, motel or inn, or the invited guest of a registered guest.
2. The guest room is designed primarily as sleeping accommodation.
3. The guest room has been designated as a guest room that accommodates smoking by the management of the hotel, motel or inn.
4. The guest room is fully enclosed by floor-to-ceiling walls, a ceiling and doors that separate it physically from any adjacent area in which smoking is prohibited by this Act.
5. The guest room conforms to any other prescribed requirements.
Scientific research and testing facilities
(11) Subsection (1) does not apply to a person who smokes or holds lighted tobacco in a scientific research and testing facility for the purpose of conducting research or testing concerning tobacco or tobacco products, and subsections (3) and (6) do not apply to a proprietor or employer with respect to the research and testing carried on in such a facility.
Definition
(12) In this section,
“proprietor” means the owner, operator or person in charge.
Protection for home health-care workers
9.1 (1) Every home health-care worker has the right to request a person not to smoke tobacco in his or her presence while he or she is providing health care services.
Right to leave
(2) Where a person refuses to comply with the request not to smoke, the home health-care worker has the right to leave without providing any further services, unless to do so would present an immediate serious danger to the health of any person.
Restriction
(3) A home health-care worker who has exercised his or her right to leave shall comply with any procedures set out in the regulations.
Regulations
(4) The Lieutenant Governor in Council may make regulations setting out procedures that must be followed if a home health-care worker has exercised his or her right to leave.
Definition
(5) In this section,
“home health-care worker” means a person who provides health-care services in private homes, that is provided or arranged by,
(a) a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, or
(b) an entity that receives funding from the Ministry of Health and Long-Term Care.
10. Section 11 of the Act is repealed.
11. (1) Subsection 13 (2) of the Act is amended by striking out “19 years of age” and substituting “19 years of age or 25 years of age, as the case may be”.
(2) Subsection 13 (4) of the Act is repealed and the following substituted:
Place for traditional use of tobacco
(4) At the request of an Aboriginal resident, the operator of a hospital, facility, home or other place set out below shall set aside an indoor area, separate from any area where smoking is otherwise permitted, for the use of tobacco for traditional Aboriginal cultural or spiritual purposes:
1. A hospital as defined in the Public Hospitals Act.
2. A private hospital as defined in the Private Hospitals Act.
3. A designated psychiatric facility.
4. A nursing home as defined in the Nursing Homes Act.
5. A home for special care under the Homes for Special Care Act.
6. An approved charitable home for the aged under the Charitable Institutions Act.
7. A home as defined in the Homes for the Aged and Rest Homes Act.
8. A place that belongs to a prescribed class.
12. (1) The English version of clause 14 (8) (b) of the Act is amended by striking out “document” and substituting “record”.
(2) Subsection 14 (8) of the Act is amended by striking out “and” at the end of clause (d) and by adding the following clauses:
(f) if he or she finds that an employer is not complying with subsection 9 (3), direct the employer or a person whom the inspector believes to be in charge of the enclosed workplace to comply with the provision and may require the direction to be carried out forthwith or within such period of time as the inspector specifies; and
(g) if he or she finds that a proprietor is not complying with subsection 9 (6), direct the proprietor or a person whom the inspector believes to be in charge of the enclosed public place to comply with the provisions and may require the direction to be carried out forthwith or within such period of time as the inspector specifies.
(3) Section 14 of the Act is amended by adding the following subsection:
Definition
(17) In this section,
“record” means any collection of information however recorded, whether in printed form, on film, by electronic means or otherwise and includes any data that is recorded or stored on any medium in or by a computer system or similar device as well as drawings, specifications or floor plans for an enclosed workplace.
13. (1) Subsections 15 (1) and (2) of the Act are repealed and the following substituted:
Offences
(1) A person who contravenes section 3, 3.1 or 3.2, subsection 4 (1), section 5 or 9 or subsection 13 (4), 14 (16), 16 (4), 17 (6), 18 (4) or (5) is guilty of an offence and on conviction is liable to a fine determined in accordance with subsection (3).
Same
(2) A person who contravenes section 6 or 10 or subsection 18 (1) is guilty of an offence and on conviction is liable, for each day or part of a day on which the offence occurs or continues, to a fine determined in accordance with subsection (3).
(2) Subsection 15 (8) of the Act is repealed.
(3) Subsection 15 (9) of the Act is amended by striking out “or (8)”.
(4) The Table to section 15 of the Act, as amended by the Statutes of Ontario, 1997, chapter 10, section 26, is repealed and the following substituted:
Table
|
Column 1 |
Column 2 |
Column 3 |
Column 4 |
|
Provision Contravened |
Number of Earlier Convictions |
Maximum Fine — Individual |
Maximum Fine — Corporation |
|
|
|
$ |
$ |
|
3 (1), 3 (2), 3.1, 3.2 |
0 |
4,000 |
10,000 |
|
|
1 |
10,000 |
20,000 |
|
|
2 |
20,000 |
50,000 |
|
|
3 or more |
100,000 |
150,000 |
|
3 (6), 4 (1), 6, 10, 14 (16), |
0 |
2,000 |
5,000 |
|
1 |
5,000 |
10,000 |
|
|
2 |
10,000 |
25,000 |
|
|
3 or more |
50,000 |
75,000 |
|
|
|
|
$ |
$ |
|
5 |
0 |
2,000 |
100,000 |
|
|
1 |
5,000 |
300,000 |
|
|
2 |
10,000 |
300,000 |
|
|
3 or more |
50,000 |
300,000 |
|
9, other than subsection (4) |
0 |
1,000 |
|
|
|
1 or more |
5,000 |
|
|
9 (4) |
any |
4,000 |
10,000 |
|
13 (4) |
any |
4,000 |
10,000 |
14. Subsection 16 (2) of the Act is repealed and the following substituted:
Notice
(2) On becoming aware that all of the following conditions have been satisfied, the Minister shall send a notice of the prohibition imposed by subsection (4) to the person who owns or occupies the place and to all wholesalers and distributors of tobacco in Ontario:
1. Any person has been convicted of a tobacco sales offence committed in a place owned or occupied by the person.
2. Any person was convicted of another tobacco sales offence in the same place during the five years preceding the conviction referred to in paragraph 1.
3. The period allowed for appealing the conviction referred to in paragraph 1 has expired without an appeal being filed, or any appeal has been finally disposed of.
15. (1) Subsection 19 (1) of the Act is amended by adding the following clause:
(a.1) for the purposes of the definition of “enclosed public place” in subsection 1 (1),
(i) defining “inside”,
(ii) prescribing places to be enclosed public places;
(2) Subsection 19 (1) of the Act is amended by adding the following clause:
(a.2) for the purposes of the definition of “enclosed workplace” in subsection 1 (1),
(i) defining “inside”,
(ii) prescribing places to be enclosed workplaces;
(3) Subsection 19 (1) of the Act is amended by adding the following clause:
(a.3) exempting tobacconists from any or all of the requirements and prohibitions in section 3.1, defining tobacconists for the purposes of such an exemption, and making the exemption subject to one or more conditions provided for in the regulations;
(4) Subsection 19 (1) of the Act is amended by adding the following clause:
(a.4) exempting retailers who sell tobacco at a duty free shop as defined in subsection 2 (1) of the Customs Act (Canada) from any or all of the requirements and prohibitions in section 3.1, and making the exemption subject to one or more conditions provided for in the regulations;
(5) Subsection 19 (1) of the Act is amended by adding the following clause:
(a.5) exempting manufacturers and wholesalers of tobacco products from any or all of the requirements and prohibitions in section 3.1, defining manufacturers and wholesalers of tobacco products for the purposes of such an exemption, and making the exemption subject to one or more conditions provided for in the regulations;
(6) Clauses 19 (1) (g), (h) and (i) of the Act are repealed and the following substituted:
(g) governing the giving of notice for the purposes of section 9;
(h) governing proper ventilation for the purposes of paragraph 5 of subsection 9 (7).
(7) Subsection 19 (1) of the Act is amended by adding the following clause:
(h.1) defining “supportive housing residence” for the purposes of subparagraph 1 v of subsection 9 (7);
(8) Subsection 19 (1) of the Act is amended by adding the following clause:
(h.2) designating psychiatric facilities for the purposes of subsection 9 (8) and paragraph 3 of subsection 13 (4);
(9) Subsection 19 (1) of the Act is amended by adding the following clause:
(h.3) designating facilities for veterans for the purposes of subsection 9 (9);
(10) Subsections 19 (6) and (7) of the Act are repealed and the following substituted:
Effect of subss. (3) to (5)
(6) Subsections (3), (4) and (5) do not restrict the generality of subsection (1).
General or specific
(7) A regulation under this Act may be general or specific in its application, and may establish different categories or classes, and may provide for different obligations or responsibilities for different categories or classes.
Repeal of Smoking in the Workplace Act
16. The Smoking in the Workplace Act is repealed.
Human Rights Code amended
17. Subsection 20 (4) of the Human Rights Code, as enacted by the Statutes of Ontario, 1994, chapter 10, section 22, is amended by striking out “Tobacco Control Act, 1994” and substituting “Smoke-Free Ontario Act” and by adding “or 25 years, as the case may be” at the end.
Provincial Offences Act amended
18. Subclause 12 (2) (a) (v) of the Provincial Offences Act, as enacted by the Statutes of Ontario, 1994, chapter 10, section 23, is amended by striking out “Tobacco Control Act, 1994” and substituting “Smoke-Free Ontario Act”.
Commencement
19. (1) This section and section 20 come into force on the day this Act receives Royal Assent.
Same
(2) Sections 1 to 4, subsection 5 (1) and sections 6 to 18 come into force on May 31, 2006.
Same
(3) Subsection 5 (2) comes into force on May 31, 2008.
Short title
20. The short title of this Act is the Tobacco Control Statute Law Amendment Act, 2005.