Canada: E-Cigarettes In The Workplace

The use of electronic cigarettes ("e‑cigarettes") in public places and in the workplace has given rise to numerous debates. Indeed, the legislative and regulatory requirements are uncertain since e‑cigarettes are still an unknown quantity in terms of impacts on users' health and on individuals nearby who may be exposed. While some automatically categorize e‑cigarettes with regular cigarettes and would like to see the same guidelines applied, others have taken a more nuanced stance, due in part to the fact that the composition of e‑cigarettes differs slightly from that of regular cigarettes (which contain tobacco, nicotine, etc.). Some even champion e‑cigarettes for making it easier for users to cut down or stop smoking altogether.

The composition of e‑cigarettes is only partially known and may vary considerably from product to product, unlike regular cigarettes, which consistently have the same basic ingredients. Although e‑cigarettes primarily contain vegetable glycerin, propylene glycol, aromas and nicotine, impurities and synthetic chemical contaminants have been detected in some brands. Occasionally, certain substances (e.g. alcohol, marijuana or other drugs) may be added to the vapour given off by the product. This makes e‑cigarettes hard to define in terms of composition. In addition, some brands contain nicotine, while others do not. However, scientists have detected nicotine in some products labelled "nicotine free".

Since they only appeared on the market a few years ago, e‑cigarettes do not always belong to a clearly defined category of consumer products. Are they an alternative to cigarettes? Are they a drug? In 2009, Health Canada issued a notice in which it advised against using e‑cigarettes and pointed out that the sale of these products violated the Food and Drugs Act1 since the marketing of e‑cigarettes had not been authorized in Canada. According to Health Canada, e‑cigarettes fall within the definition of a drug within the meaning of paragraphs 2(a) and 2(b) of the Act, which read as follows:

"Drug" includes any substance or mixture of substances manufactured, sold or represented for use in

(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,

(b) restoring, correcting or modifying organic functions in human beings or animals [...]"

According to Health Canada, e‑cigarettes meet the definition in paragraph (a) above because they may be used to treat nicotine addiction and may thus be useful in the treatment of a disease. Health Canada also maintains that e‑cigarettes meet the definition in paragraph (b) since they may contain nicotine and nicotine modifies bodily functions. In the case Zen Cigarette Inc. vs. Canada (Health), 2012 CF 1465, the Federal Court upheld Health Canada's arguments.

Therefore, in order for e‑cigarettes to be imported, advertised or sold, they must undergo a lengthy drug approval process.

At the federal level, the Non-smokers' Health Act requires employers subject to the Canada Labour Code to ensure that no one smokes in a workplace within their jurisdiction.2 However, this law only applies to tobacco products, which are defined as "any product manufactured from tobacco and intended for use by smoking".3 Therefore, the application of this law is problematic since e‑cigarettes do not contain tobacco, although they often contain nicotine and various chemical substances.

It should be noted that under Quebec's Tobacco Act4 and regulations,5 "any product that does not contain tobacco and is intended to be smoked" is included with tobacco.6 Under this law, smoking is prohibited in many enclosed spaces, including workplaces (except those situated in a dwelling).7

Although at first glance this provision would seem to apply to e‑cigarettes, that does not appear to be the case as the provincial government recently moved to amend the Tobacco Act by extending the scope of the legislation to consider e‑cigarettes to be tobacco and by setting rules for tobacco use in certain places. The last major amendments to the Tobacco Act were adopted in 2005. Bill 44 ("An Act to bolster tobacco control") was tabled in Quebec's National Assembly on May 5, 2015 by the public health minister. In addition to imposing new penal provisions, this legislation increases the fines for offences under the Act and reinforces other penal provisions by making employers and the directors and officers of legal persons, partnerships and associations more accountable.

An interesting parallel may be drawn between e‑cigarettes and shisha, a substance made of fruit or plant-based molasses consumed using a water pipe (shisha may or may not contain tobacco, nicotine or tar). Shisha is sold over the counter in specialty stores but, in accordance with the Tobacco Act and regulations, it cannot be displayed in public view or sold to minors.

In 2013, the Criminal and Penal Division of Quebec's Superior Court8] granted the appeal of a Quebec Court ruling in which the respondent (the operator of a retail establishment) had been acquitted of charges brought against her under section 11 of the Tobacco Act, which reads as follows:

11. The operator of a place or business to which this chapter applies shall not tolerate smoking in an area where smoking is prohibited.

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.

In this case, the Superior Court regarded shisha as tobacco within the meaning of the Tobacco Act and ruled that the respondent was guilty of having tolerated smoking in a prohibited area. The Superior Court ruled that the regulation was unambiguous and that the phrase "any product that does not contain tobacco and is intended to be smoked is considered to be tobacco" was clear in textual as well as regulatory terms.

The Régie des alcools, des courses et des jeux (the "Board") draws on the principles set out in the Superior Court's decision when it decides whether or not to issue, suspend or revoke a liquor permit.

In a recent decision9, the Board stated that although it was not responsible for enforcing the Tobacco Act, it was still required to determine whether the consumption of shisha within a licenced establishment was contrary to the public interest or could disturb the public peace. Since the Tobacco Act was enacted in the public interest, the Board must ensure that the law is complied with in establishments that have been issued a liquor permit or that have applied for one. In this case, the Board noted that the Tobacco Act also refers to the Act Respecting Liquor Permits10 and prohibits the consumption and sale of any product intended for use by smoking, regardless of its tobacco content, in licensed establishments.11

Given that the main objective of the Tobacco Act and regulations is to protect public health and given that, in accordance with the abovementioned decision, shisha must be regarded as tobacco within the meaning of the Tobacco Act and regulations, the Board in this case concluded that issuing the requested permit would be contrary to the public interest and would disturb the public peace.

In another case12 in which the applicant applied for a restaurant-category liquor sales permit while offering clients tobacco-free shisha, the Board rejected the application and concluded that it would be illogical and contrary to the legislation as well as to lawmakers' intentions to allow any type of smoke in public and enclosed places, particularly in establishments in which food is served to the public and in the presence of minors.13

Other provinces have moved to regulate the use of e‑cigarettes in public places by legislative means, particularly in Nova Scotia, where a provincial ban will come into effect on May 31, 2015, as well as in Ontario, where lawmakers ensured that e‑cigarettes would be subject to the same legislative process as the use of regular cigarettes.

In January 2015, the City of Montreal adopted a directive prohibiting its approximately 28,000 employees from using e‑cigarettes in the workplace, i.e. in municipal buildings, as well as in City of Montreal-owned vehicles. The ban applies to e‑cigarettes containing nicotine as well as to the nicotine-free variety. This directive only applies to City of Montreal employees, although the City is seeking to extend the ban to prevent Montrealers from smoking e‑cigarettes in municipal buildings (a municipal regulation will have to be adopted in that regard).

As regards the City of Trois Rivières, the municipal government is waiting for the National Assembly of Québec to take a stand, rather than moving to regulate e‑cigarettes itself. That, however, has not stopped a number of educational institutions from banning the use of e‑cigarettes in their buildings.

As they await the adoption of provincial legislation setting out clear guidelines on the use of e‑cigarettes, businesses must implement and enforce their own internal rules in this regard. Employers will thus have to take a stand on the use of e‑cigarettes in their workplaces and must establish company-specific policies in this regard.

Footnotes

[1] RSC 1985, c F-27.

[2] Sec. 3(1) of the Non-smokers' Health Act, RSC 1985, c. 15 (4th suppl).

[3] Ibid, sec. 2.

[4] CQLR c T-0.01.

[5] Regulation under the Tobacco Act, CQLR c. T-0.01, r 1.

[6] Ibid, sec. 1.

[7] Ibid, secs. 2 and 9.

[8] Director of Criminal and Penal Prosecutions vs. L'Orienthé Montréal Ltd., 2013 QCCS 915.

[9] Adonicia Restaurant, RACJ, decision no. 40-0006237, September 11, 2014.

[10] CQLR, c. P-9.1.

[11] Op. cit., note 9, paragraph 69; sections 2 (8.2) and 17 (6) of the Regulation under the Tobacco Act, CQLR c. T‑0.01, r 1.

[12] Le Café Barcode, RACJ, decision no. 40-0004966, August 2, 2012. See also Café Sphynx, RACJ, decision no. 40-0005941, March 5, 2014 and Le Hub 33, RACJ, decision no. 40-0006126, May 8, 2014.

[13] Ibid, paragraph 27.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions