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The Non-Smokers Health Protection Act (Various Acts Amended)

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S.M. 2004, c. 17

Bill 21, 2nd Session, 38th Legislature

The Non-Smokers Health Protection Act (Various Acts Amended)

(Assented to June 10, 2004)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

AMENDMENTS TO THE NON-SMOKERS HEALTH PROTECTION ACT

C.C.S.M. c. S125 amended

1           The Non-Smokers Health Protection Act is amended by this Part.

2(1)        Section 1 is amended by adding the following definitions:

"employee" includes

(a) any person who is employed by an employer to perform a service, including a volunteer,

(b) any person who is engaged by another person to perform a service, whether under a contract of employment or not, and

(c) any person who is receiving instruction or training, or serving an apprenticeship; (« employé »)

"employer" includes any person who as the owner, manager or supervisor of an activity, business, work, trade, occupation or profession, has control over or direction of, or is directly or indirectly responsible for, a person's activities as an employee; (« employeur »)

"group living facility" means

(a) a personal care home as defined in The Health Services Insurance Act,

(b) an addictions unit of a hospital, a palliative care unit of a hospital, or a hospice used as a residence by persons in the late stages of a life-threatening illness,

(c) a residential care facility as defined in The Social Services Administration Act, a residential addictions treatment facility, a facility as defined in The Mental Health Act, or the Manitoba Developmental Centre,

(d) a residential shelter or a halfway house,

(e) a group home or a treatment centre as defined in The Child and Family Services Act, and

(f) any other place or class of places prescribed by regulation; (« habitation collective »)

"indoor workplace" means an enclosed area of a building, structure, mine or other premises in which an employee engages in work, including any eating area, washroom, corridor, lounge, reception area, lobby, elevator, escalator, stairway, amenity area, storage area, closet, laundry room and parking garage used by employees, and any other enclosed area frequented by employees during the course of their employment, but does not include a private residence; (« lieu de travail intérieur »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)

"private function" means an event at which attendance is limited to persons specifically invited or permitted to attend by the host, whether or not an admission fee is charged and regardless of the purpose of the event; (« activité privée »)

"public vehicle" means a motor vehicle used for the public transportation of persons or property, and includes a bus, taxi or limousine; (« véhicule public »)

"tobacconist shop" means premises where the predominant trade or business carried on is the manufacture, blending, sale or distribution of tobacco or tobacco-related products, and where the sale or distribution of other products is merely incidental; (« débit de tabac »)

2(2)        The definition "enclosed public place" in section 1 is amended

(a) in the part before clause (a) of the English version, by striking out "without restricting the generality of the foregoing" and substituting "but not limited to";

(b) by adding the following after clause (f):

(g) a licensed premises,

(h) an enclosed place, other than a private residence, in which a private function is being held,

(i) a private club to which a member or invited person has access,

(j) a bus shelter, pedestrian tunnel or enclosed pedestrian walkway,

(k) any other place or class of places prescribed by regulation;

2(3)        The definition "health care facility" in section 1 is amended by adding ", but does not include a group living facility" at the end.

2(4)         The definition "proprietor" in section 1 is replaced with the following:

"proprietor", in relation to a place, area or vehicle, means an owner, employer or other person in charge who controls or directs the activities carried on in the place, area or vehicle, and includes a person present who is in charge at any particular time; (« propriétaire »)

2(5)        The definitions "motor vehicle" and "smoking area" in section 1 are repealed.

2(6)        Section 1 is renumbered as subsection 1(1) and the following is added as subsection 1(2):

Exception for outdoor eating or drinking areas

1(2)        An outdoor eating or drinking area that is part of, or operated in conjunction with,

(a) a restaurant;

(b) a licensed premises;

(c) a private club to which a member or invited person has access; or

(d) an enclosed place, other than a private residence, in which a private function is being held;

is an enclosed public place or indoor workplace under this Act only if it meets criteria established by regulation.

3           Sections 2 to 5 are replaced with the following:

No smoking in enclosed places

2(1)        Except as permitted in sections 3 to 5.1, no person shall smoke in

(a) an enclosed public place;

(b) an indoor workplace;

(c) a group living facility;

(d) a public vehicle; or

(e) a vehicle used in the course of employment, while carrying two or more employees.

Proprietor to ensure no smoking

2(2)        The proprietor of a place, area or vehicle where smoking is prohibited under this Act shall ensure that no person smokes in that place, area or vehicle.

Exception for group living facilities

3(1)        An in-patient or resident of a group living facility, other than a facility operated exclusively for children, may smoke in a separate room in the facility, but only if the separate room

(a) is designated as a smoking room by the proprietor or board of the facility;

(b) is not frequented by non-smoking in-patients or residents;

(c) 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; and

(d) has a separate ventilation system.

Exception for hotel rooms

3(2)        A registered guest, and his or her invited guests, may smoke in a guest room of a hotel, motel, inn or bed-and-breakfast facility, but only if the guest room

(a) is designed primarily as sleeping accommodation;

(b) is designated as a smoking room by the proprietor;

(c) 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; and

(d) has a separate ventilation system.

Transitional

3(3)        The requirement for a separate ventilation system under subsection (1) or (2) applies only to rooms that are constructed or substantially renovated after this section comes into force.

Exception for tobacconist shops

4           The proprietor of a tobacconist shop and his or her employees and customers may smoke in a tobacconist shop to test or sample a product if the shop

(a) 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; and

(b) has a separate ventilation system if the shop is first opened for business after this section comes into force.

Drifting smoke

5           The proprietor of a place where smoking is permitted under section 3 or 4 shall take reasonable steps to minimize the drifting of smoke into non-smoking areas of the premises.

Exception for traditional Aboriginal practice

5.1         Nothing in this Act prohibits

(a) an Aboriginal person from using tobacco; or

(b) a non-Aboriginal person from using tobacco with an Aboriginal person;

if the activity is carried out for a traditional Aboriginal spiritual or cultural practice or ceremony.

4           The following is added after section 6:

Proprietor to post signs

6.1(1)      In every place, area or vehicle in which smoking is prohibited by this Act, the proprietor shall post, and keep continuously displayed, signs indicating that smoking is prohibited, in accordance with the regulations.

Removing sign prohibited

6.1(2)      No person other than the proprietor or a person acting on his or her instructions shall remove, alter, conceal, deface or destroy a sign posted in accordance with subsection (1).

Ashtrays

6.2         A proprietor shall ensure that no ashtray or similar receptacle is placed or allowed to remain in any place or area in which smoking is prohibited under this Act.

5           The following is added after section 7.3:

Inspectors

7.4(1)      The minister may designate any persons or the members of any class of persons as inspectors for the purposes of this Act.  A police officer, police constable, constable or special constable, and a member of the Royal Canadian Mounted Police is also an inspector for the purposes of this Act.

Identification cards

7.4(2)      The minister may issue an identification card to an inspector.

Inspection authority

7.5(1)      When reasonably required to administer or determine compliance with this Act or the regulations, an inspector may enter and inspect any premises, place, area or public vehicle at any reasonable time.

Additional powers

7.5(2)      In addition to the powers referred to in subsection (1), when reasonably required to administer or determine compliance with this Act or the regulations, an inspector may

(a) make any inspection, investigation, examination, test, analysis or inquiry that he or she considers necessary;

(b) require any substance or thing to be produced for inspection, examination, testing or analysis;

(c) seize or take samples of any substance or thing; or

(d) take photographs or videotapes of any premises, place, area or public vehicle, or of any substance or thing.

Assistance to inspector

7.5(3)      A proprietor must give an inspector any information that the inspector reasonably requires and all reasonable assistance to enable the inspector to carry out his or her duties.

Person may report suspected violation

7.6(1)      Any person who reasonably believes that a violation of this Act or the regulations has occurred, or may occur, may report the circumstances leading to that belief to an inspector.

Protection from liability

7.6(2)      No action or other proceeding may be brought against a person for providing information in good faith under this section.

Adverse employment action prohibited

7.6(3)      No employer shall take adverse employment action against an employee because that person provided information in good faith under this section.

Interference or harassment prohibited

7.6(4)      No person shall interfere with or harass a person who provides information under this section.

6(1)        Subsection 8(1) is amended in the part before clause (a) by striking out "section 2" and substituting "section 2 or 5".

6(2)        Subsection 8(2) is replaced with the following:

Offence and penalty: contravention of subsection 2(1)

8(2)        An individual who contravenes subsection 2(1) is guilty of an offence and is liable on summary conviction,

(a) for a first offence, to a fine of not less than $100. and not more than $500.;

(b) for a second offence, to a fine of not less than $200. and not more than $750.; and

(c) for a third or subsequent offence, to a fine of not less than $300. and not more than $1000.

Offence and penalty: contravention of subsection 2(2) or section 5

8(2.1)      An individual or a corporation that contravenes subsection 2(2) or section 5 is guilty of an offence and is liable on summary conviction,

(a) for a first offence, to a fine of not less than $500. and not more than $3,000.;

(b) for a second offence, to a fine of not less than $750. and not more than $5,000.; and

(c) for a third or subsequent offence, to a fine of not less than $1,000. and not more than $15,000.

7           Subsection 9(1) is amended

(a) by adding the following after clause (a):

(a.1) prescribing places or classes of places for the purpose of the definition "enclosed public place";

(a.2) prescribing places or classes of places for the purpose of the definition "group living facility";

(a.3) for the purpose of subsection 1(2), prescribing criteria for determining whether outdoor eating or drinking areas are enclosed public places or indoor workplaces under this Act;

(b) by repealing clause (b); and

(c) by replacing clause (i) with the following:

(i) defining any word or phrase used but not defined in this Act, including "separate ventilation system" and "substantially renovated" for the purpose of sections 3 and 4.

8           The following is added after section 9.1:

Protection from liability

9.2         No action or proceeding may be brought against the minister, an inspector or any other person acting under the authority of this Act or the regulations for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act or the regulations; or

(b) in the exercise or intended exercise of a power under this Act or the regulations;

unless the person was acting in bad faith.

Act binds the Crown

9.3         This Act binds the Crown.

When Act does not apply

9.4         This Act does not apply to penitentiaries, federally regulated airports, Canadian Forces bases or to any other place or premises occupied by a federal work, undertaking or business, or on lands reserved for Indians.  For the purpose of this section, "federal work, undertaking or business" has the same meaning as in the Canada Labour Code.

PART 2

AMENDMENTS TO THE MUNICIPAL ASSESSMENT ACT

C.C.S.M. c. M226 amended

9           Clause 23(1)(f) of The Municipal Assessment Act is amended by striking out "to the extent that the improvements are not used as licensed premises within the meaning of The Liquor Control Act,".

PART 3

CONSEQUENTIAL AMENDMENTS AND COMING INTO FORCE

Consequential amendment, C.C.S.M. c. W210

10          Subsection 18(1) of The Workplace Safety and Health Act is amended by adding the following after clause (c):

(c.1) respecting the prohibition of smoking at workplaces, including deeming a contravention of The Non-Smokers Health Protection Act relating to workplaces to be a contravention of this Act for the purpose of issuing an improvement order under section 26;

Coming into force of Parts 1 and 3

11(1)        This Act, except Part 2, comes into force on October 1, 2004.

Coming into force: Part 2

11(2)       Part 2 comes into force on January 1, 2005.