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This version is current as of June 11, 2014.
It has been in effect since April 01, 2014.

It does not include amendments enacted or coming into force on or after June 12, 2014.
(See SM 2014, c. 18)

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C.C.S.M. c. N92

The Non-Smokers Health Protection Act

(Assented to March 15, 1990)

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

Definitions

1(1)        In this Act,

"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 »)

"enclosed public place" means any part of an enclosed place to which members of the public have access, including, but not limited to,

(a) any part of

(i) an office building,

(ii) a retail store or other commercial establishment, or

(iii) the common areas of a residential building or shopping mall,

(b) a health care facility,

(c) a day care centre or nursery,

(d) an educational institution or facility,

(e) a restaurant,

(f) an elevator,

(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, and

(k) any other place or class of places prescribed by regulation; (« endroit public fermé »)

"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 »)

"health care facility" means a place where a person may receive medical examination, treatment or care, and includes a hospital, clinic and medical practitioner's office, but does not include a group living facility; (« établissement de santé »)

"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 »)

"licensed premises" means licensed premises as defined in The Liquor and Gaming Control Act; (« locaux visés par une licence »)

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

"pharmacy" means a facility used for any aspect of the practice of pharmacy, and includes a satellite facility and every other facility, wherever located, used in the practice; (« pharmacie »)

"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 »)

"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 »)

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

"restaurant" includes any part of a coffee shop, cafeteria, sandwich stand, food court or other eating establishment that is located in an enclosed public place and is open to members of the public, whether or not it is licensed premises or a portion of licensed premises; (« restaurant »)

"shopping mall" means a complex of commercial establishments designed for the sale of goods or services or both to members of the public; (« centre commercial »)

"smoking" means

(a) smoking a cigarette, cigar, pipe or other device used for smoking tobacco, or

(b) having control of a lighted cigarette, cigar, pipe or other device used for smoking tobacco; (« fumer » ou « usage du tabac »)

"supply" means to sell, give, buy for, lend or otherwise provide a thing to a person, with or without consideration; (« fournir »)

"tobacco" means tobacco in any form in which it is used or consumed, and includes cigarettes, cigars, snuff and raw leaf tobacco, but does not include any food, drug or device that contains nicotine and to which the Food and Drugs Act (Canada) applies; (« tabac »)

"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 »)

"tobacco-related product" means a cigarette paper, cigarette tube, cigarette filter, cigarette maker or pipe, or any thing used in association with tobacco and prescribed in the regulations. (« produit connexe au tabac »)

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.

S.M. 1994, c. 24, s. 3; S.M. 2002, c. 37, s. 2; S.M. 2004, c. 17, s. 2; S.M. 2012, c. 19, s. 2; S.M. 2013, c. 51, Sch. B, s. 198.

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.

S.M. 1994, c. 24, s. 4; S.M. 2004, c. 17, s. 3.

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.

S.M. 1994, c. 24, s. 5; S.M. 1995, c. 33, s. 20; S.M. 2004, c. 17, s. 3.

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.

S.M. 1994, c. 24, s. 6; S.M. 2004, c. 17, s. 3.

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.

S.M. 1994, c. 24, s. 7; S.M. 2004, c. 17, s. 3.

Exception for traditional Aboriginal practices

5.1         Nothing in this Act prohibits

(a) an Aboriginal person from using tobacco;

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

(c) a person from supplying or offering to supply tobacco or a tobacco-related product to a person described in clause (a) or (b);

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

S.M. 2004, c. 17, s. 3; S.M. 2012, c. 19, s. 3.

Municipality may pass by-law

6(1)        Notwithstanding the provisions of this Act, a municipal council may pass a by-law to limit or ban smoking in any enclosed public place in the municipality.

By-law conflict

6(2)        Where there is a conflict between a provision of this Act or a regulation made thereunder and a provision of a by-law made by The City of Winnipeg or another municipality under subsection (1) or another Act of the Legislature, the provision of this Act or the regulation governs; but the provision of the by-law governs where it is more severe or restrictive, or more extensive in its application, than the provision of this Act or the regulation.

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).

S.M. 2004, c. 17, s. 4.

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.

S.M. 2004, c. 17, s. 4.

Supplying tobacco in specified places prohibited

6.3         No person shall supply or offer to supply tobacco or a tobacco-related product in any of the following places or premises:

(a) a health care facility;

(b) a pharmacy;

(c) an establishment where goods or services are sold or offered for sale to the public if

(i) a pharmacy is located within the establishment, or

(ii) customers of a pharmacy can enter into the establishment directly or by the use of a corridor or area used exclusively to connect the pharmacy with the establishment;

(d) a place or premises or a class of places or premises prescribed by regulation.

S.M. 2012, c. 19, s. 4.

Vending machines prohibited

6.4         No person shall cause or permit a vending machine for selling or dispensing tobacco or a tobacco-related product to be in a place or premises that the person owns or occupies.

S.M. 2012, c. 19, s. 4.

Supplying tobacco to child prohibited

7(1)        No person shall supply or offer to supply tobacco or a tobacco-related product to a child.

Exceptions to prohibition

7(2)        Subsection (1) does not apply to

(a) a parent or guardian of a child who supplies tobacco or a tobacco-related product to the child in a place other than a public place or a place to which the public ordinarily has access; or

(b) a person who gives tobacco or a tobacco-related product to a child if the gift is intended solely for use in traditional Aboriginal spiritual or cultural practices or ceremonies.

Defense of accused

7(3)        In a prosecution or proceeding for a contravention of subsection (1), the accused has a defense if he or she can prove on a balance of probabilities that, before supplying or offering to supply the tobacco or tobacco-related product to the child, the accused attempted to verify that the child was at least 18 years of age by asking for and being shown documentation prescribed in the regulations for the purpose of verifying age, and reasonably believed that the documentation was authentic and that the person was at least 18 years of age.

Inference as conclusive evidence

7(4)        In a prosecution or proceeding for a contravention of subsection (1), where a container or package gives rise to a reasonable inference that the contents of the container or package are tobacco or a tobacco-related product, in the absence of evidence to the contrary, the contents shall be conclusively deemed to be tobacco or a tobacco-related product.

S.M. 1994, c. 24, s. 8; S.M. 2002, c. 37, s. 3.

Regulations re display and advertising

7.1         Section 7.2 and subsection 7.3(1) do not apply in relation to a place or premises for which the sale of tobacco or tobacco-related products is the major activity, if the place or premises is prescribed for the purpose of that section or subsection in the regulations.

S.M. 2002, c. 37, s. 4.

Tobacco not to be displayed

7.2         No person shall display or permit to be displayed tobacco or a tobacco-related product such that it is visible to children in any place or premises in which tobacco or tobacco-related products are sold.

S.M. 2002, c. 37, s. 4.

Tobacco not to be advertised or promoted

7.3(1)      No person shall advertise or promote tobacco or a tobacco-related product

(a) in any place or premises in which tobacco or tobacco-related products are sold;

(b) in any place or premises to which children are permitted access;

(c) on an outdoor sign of any type, including

(i) a billboard or portable sign, or

(ii) a sign on a bench, vehicle, building or other structure; or

(d) inside a building or other structure or vehicle if the advertisement or promotion is visible from outside the building, structure or vehicle.

Product and price lists allowed

7.3(2)      Notwithstanding subsection (1), a place or premises described in clause (1)(a) may have signage that lists the tobacco or tobacco-related products offered for sale and their prices, if the signage complies with the requirements specified in the regulations.

7.3(3)      [Repealed] S.M. 2012, c. 19, s. 5.

S.M. 2002, c. 37, s. 4; S.M. 2012, c. 19, s. 5.

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.

S.M. 2004, c. 17, s. 5.

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.

S.M. 2004, c. 17, s. 5.

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.

S.M. 2004, c. 17, s. 5.

General offence and penalty

8(1)        A person who contravenes a provision of this Act other than section 2 or 5, or a provision of the regulations, is guilty of an offence and is liable on summary conviction,

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

(b) for a second offence, to a fine or not more than $5,000.;

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

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.

Limitation period

8(3)        Any prosecution for an offence under this Act may be commenced within one year after the date the offence is committed and no later.

S.M. 1994, c. 24, s. 9; S.M. 2002, c. 37, s. 5; S.M. 2004, c. 17, s. 6.

Directors and officers of corporations

8.1         If a corporation commits an offence under this Act or the regulations, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and is liable on summary conviction to a fine of not more than the amount that could be levied against the corporation.

S.M. 2002, c. 37, s. 6.

Regulations

9(1)        The Lieutenant-Governor in Council may make regulations

(a) exempting a class of enclosed public places from the application of this Act;

(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) [repealed] S.M. 2004, c. 17, s. 7;

(c) respecting the form and content, the manner of posting and the location of signs required or permitted under this Act;

(d) generally for carrying out the purposes and provisions of this Act;

(e) respecting the packaging and labelling of tobacco and tobacco products, including the size of packages of tobacco and tobacco products;

(f) prescribing things that are used in association with tobacco as tobacco-related products;

(f.1) for the purpose of clause 6.3(d), prescribing a place or premises, or a class of places or premises;

(g) for the purpose of subsection 7(3), prescribing documentation that may be used to verify the age of a person;

(h) for the purpose of section 7.2 or subsection 7.3(1), prescribing a place or premises, or a class of places or premises, in which tobacco or tobacco-related products may be displayed, advertised, or promoted;

(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.

Advisory committee to provide advice

9(2)        Before making a recommendation to the Lieutenant Governor in Council respecting regulations under clause (1)(c) relating to signage permitted under subsection 7.3(2), the minister shall seek the advice and recommendations of the advisory committee established under section 9.1.

S.M. 1994, c. 24, s. 10; S.M. 2002, c. 37, s. 7; S.M. 2004, c. 17, s. 7; S.M. 2012, c. 19, s. 6.

Advisory committee to be established

9.1(1)      The minister shall establish an advisory committee to provide to the minister, at his or her request, advice and recommendations on issues relating to the display, advertising and promotion of tobacco and tobacco-related products.

Composition of advisory committee

9.1(2)      At least 1/3 of the members of the advisory committee established under subsection (1) shall be persons who, in the opinion of the minister, are representative of tobacco retailers.

S.M. 2002, c. 37, s. 8.

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.

S.M. 2004, c. 17, s. 8.

Act binds the Crown

9.3         This Act binds the Crown.

S.M. 2004, c. 17, s. 8.

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.

S.M. 2004, c. 17, s. 8.

Reference in C.C.S.M.

10          This Act may be referred to as chapter N92 of the Continuing Consolidation of the Statutes of Manitoba.

S.M. 2005, c. 42, s. 37.

Commencement of Act

11          This Act comes into force on a day fixed by proclamation.

NOTE:  S.M. 1989-90, c. 41 came into force by proclamation on April 22, 1991.

 

 


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