SMOKE-FREE ONTARIO ACT NOW WHAT FOR MUNICIPALITIES?

1
SMOKE-FREE ONTARIO ACTNOW WHAT FOR
MUNICIPALITIES?

• BILL 164
• Bill 164 receives first reading on December 15,
  2004
• Second reading debated February 15, 16, 21, 2005
• Bill 164 renames Tobacco Control Act to
  Smoke-Free Ontario Act and repeals Smoking in
  Workplace Act
• Majority of Bill 164 to come into effect in May,
  2006
• Bill 164 provides that the more restrictive
  applies where conflict with municipal by-laws

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MUNICIPAL ACT, 2001

• Section 115 (formerly section 213) allows
  municipalities to pass by-laws to regulate
  smoking in public places and workplaces
• Subsection 115(10) states that where conflict
  between by-law and provincial legislation, the
  most restrictive of the smoking of tobacco
  prevails

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ISSUE WILL THERE BE A NEED FOR MUNICIPAL SMOKING
BY-LAWS IF BILL 164 COMES INTO EFFECT?
4
WHICH IS MORE RESTRICTIVE IN REGARD TO PUBLIC
PLACES??

• BILL 164
• 1. Province says Bill 164 will cover all private
  clubs
• 2. Bill 164 is limited to enclosed public
  places and specific outdoor areas for schools
  and reserved seating for a sports arena or
  entertainment venue
• 3. Bill 164 includes any public place covered by
  a roof
• 4. Bill 164 does not allow designated smoking
  rooms, smoking in casinos etc.

• MUNICIPAL ACT, 2001
• 1. Authority is limited to public places and
  may not include true private clubs
• 2. Authority includes indoor and
• outdoor public places but most municipalities
  limit their by-laws to indoor areas
• 3. Many municipalities allow compromises in
  regard to patios even if the patio has a roof
• 4. Some municipalities allow designated smoking
  rooms, smoking in casinos, etc.

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WHICH IS MORE RESTRICTIVE IN REGARD TO WORPLACES?

• MUNICIPAL ACT, 2001
• 1. By-law does not apply to vehicles on a
  highway except for public transportation
  vehicles and taxi-cabs
• 2. Authority applies to workplaces in general
  and is not expressly limited by private
  dwellings, etc.

• BILL 164
• 1. Bill 164 includes all vehicles used in the
  course of employment
• 2. Bill 164 does not include a place that is
  primarily a private dwelling or a designated
  residence in a nursing home
• 3. Bill 164 does not include room in a hotel,
  motel or inn if designated
• 4. Under Bill 164, health care worker has right
  to request person not to smoke in workers
  presence

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WHICH IS BETTER IN REGARD TO ENFORCEMENT?

• MUNICIPAL ACT, 2001
• 1. Municipality is limited by its statutory
  authority
• 2. Municipalities rely on an implied power in
  regard to obligations of an employer and owner
  to ensure compliance
• 3. Municipal Act, 2001 does not protect
  employees who seek enforcement of Workplace
  By-law

• BILL 164
• 1. Province has power to add a class of premises
  to its legislation through the passage of a
  regulation
• 2. Bill 164 expressly states that an employer
  and owner shall require a smoker to leave their
  premise if non-compliant
• 3. Bill 164 protects employees who seek
  enforcement of Act

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WHICH IS BETTER IN REGARD TO ENFORCEMENT?

• MUNICIPAL ACT, 2001
• 4. General powers of inspection
• 5. Maximum fine for an individual is 5,000 if
  no prior convictions (although unlikely)

• BILL 164
• 4. Specific powers of inspection set out in Act
• 5. Maximum fine for an individual is 1,000 if
  no prior convictions
• 6. Bill 164 allows inspector to order employer
  to comply with provisions of the Act

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CONCLUSIONS

• Bill 164 is as strict or more strict than most
  municipal smoking by-laws in regard to public
  places. The workplace provision in Bill 164 has
  several exceptions but many by-laws share such as
  well.
• Province will use Public Health Unit Staff to
  enforce Bill 164
• Need to still have Municipal Smoking By-laws?