Smoked Out: Employer Convicted When Employee Smokes in Truck

Do you have a policy prohibiting your employees from smoking when they drive alone in a company vehicle?  If not, you may be breaking the law.

Since 1994, the Smoke-Free Ontario Act (the “SFOA”) has prohibited smoking in large swaths of public places.  The SFOA also requires that employers ensure that enclosed workplaces, among other spaces, are kept free of tobacco smoke. The regulations under the SFOA were updated in 2006 and 2009, but there has been very limited public discussion about the issue since.

A recent decision from the Ontario Court of Justice suggests employers would be wise to take a closer look.

In Region of Peel v Con-Drain Co. (1983) Ltd, an employer and employee were charged with offences under the SFOA when the employee was found driving a company truck and smoking.  The employee was charged with smoking in an enclosed workplace, and the employer was charged with failing to prevent him from doing so.

The substantive question before the Court was whether the pickup truck in which the employee was found was an “enclosed workplace.”  The decision turned on whether the truck was a commercial or private vehicle.  If it was commercial, then the necessary implication was that it was a location in which employees would work in or frequent during their employment, a necessary precondition for it to be found an enclosed workspace.

The evidence indicated that the vehicle was owned by the employer, and that there was no evidence that it was being used as a personal vehicle at the time of the alleged offence.

Consequently, the Court found that the pickup truck constituted a commercial vehicle, and that employees were likely to regularly be inside the cab of the pickup truck.  Since that cab was covered by a roof, this qualified the pickup truck as an “enclosed workplace” for the purposes of the SFOA.

The SFOA contains a broad definition of employer, even more broad than the Occupational Health and Safety Act.  That definition includes the owner of a business that is responsible directly or indirectly for the employment of an employee.

As a result, since the employee was smoking within an enclosed workplace, both the employee and employer had failed to prevent smoking in an enclosed workplace.  There was no evidence offered by the employer to show that they had sufficient measures in place to show due diligence.  They were convicted under the SFOA.

Interestingly, the Court was silent on whether the legislation should be read to apply to that situation.  There were no other employees in the truck, and so the only person who was subject to the tobacco smoke was the employee being charged.  In addition, there was no indication that the truck was being used for work purposes at the time.  It seems odd that an employer can be held liable for an employee’s decision to smoke while alone, an action that would be perfectly legal had the employee been standing beside the vehicle.  Yet, on a strict reading of the SFOA, that is precisely what happened.

The Crown elected to pursue these charges under Part I of the Provincial Offences Act (POA), which contains smaller potential fines.  However, if charges had been pursued under Part III of the POA, the Crown could have sought fines of up to $100,000 for a conviction.  The Crown has complete discretion whether to proceed under Part I or III.

Employers must ensure that employees are aware that when they are issued company vehicles or work in other “enclosed workplaces”, they are strictly prohibited from smoking therein.  Strong policies and training, at a minimum, are likely necessary to avoid liability.

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