Trucker fined for smoking in his vehicle considered at work
Image taken from: http://www.reuters.com
This month, an Ontario truck driver was fined $305 for smoking in his vehicle, because it is also considered his workplace. Under the Smoke-Free Ontario Act, smoking is prohibited at all workplaces in the province, and this includes a vehicle that is deemed a place of work in the Act.
The Smoke-Free Ontario Act is designed to protect the health of all Ontarians by prohibiting smoking in all enclosed workplaces and enclosed public places in Ontario.
Specifically, the Act states (bold and italics added for emphasis):
1. “enclosed public place” means, (a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them (i) that is covered by a roof, and (ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or (b) a prescribed place.
This makes me wonder… if a vehicle is also part of the definition of an enclosed public place, how come smokers who drive with passengers are not currently being fined for violating the law? I see them everyday on my commute to and from work, smoking away in their car with passengers in them. Please note that I am not talking about the prohibition to smoke or have lighted tobacco in a motor vehicle while another person who is less than 16 years old is present in the vehicle.
2. “enclosed workplace” means, (a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them, i) that is covered by a roof, (ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and (iii) that is not primarily a private dwelling, or (b) a prescribed place.
“employee” means a person who performs any work for or supplies any services to an employer, or a person who receives any instruction or training in the activity, business, work, trade, occupation or profession of an employer.
In addition, the Ministry of Health Promotion indicates in its employer/employee guide that the ban on smoking in an enclosed workplace is in effect at all times, even during off-hours when people are not working.
This makes me wonder… route sales people who do not report to work at their employer’s place of business, who use their car to work on a daily basis to make sales call to customers, have their logs, laptop and paper work in their car, and smoke on the way—while working—how will the police know they are smoking in a vehicle that is also considered their workplace?
I find the Act very ambiguous and difficult to enforce. Your thoughts please!?
Yosie Saint-Cyr
Human Resources and Compliance Managing Editor
Yosie Saint-Cyr, LL.B. Managing Editor
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Thank you Yosie, we all appreciate it!
I’ve decided to ask the Ontario government, the Ministry of Health Promotion some clarification on the application of the law and will get back to you with a follow up blog. Stay tuned!
However if you have any more comments please continue to post them.
Thanks, Yosie
I just read in the Star.com that the trucking company that the trucker (subject of the blog post) works for was charged two years ago by a provincial health unit officer under the Smoke-Free Ontario Act. The company decided to fight the charges in court.
The Crown withdrew the charges on the day the case was to be heard. The issue being if the company is federally or provincially regulated; complicating the issue even further. Read http://www.thestar.com/news/gta/article/710544–truckers-battled-smoke-law-and-won
A lot of truck drivers own their own cabs, if the vehicle is owned by the driver and only occupied by the driver than I don’t see how he/she could be fined.
If it is still possible because the vehicle is being used on company time than what about employees that drive home for lunch and smoke in their vehicles?
At times, government rules, regulations and in this case laws are passed where intent or misinterpretation goes beyond common sense.
I do not expect that my tax dollars would support an activity like this by our provincial police.
So if the vehicle is owned by the employee I’m not sure I understand why it should be treated differently than a private dwelling. What if he smokes in his truck while driving home after he’s done work? Can he be fined in that case?
A vehicle in the Act is not just defined as a truck or a company truck… The definition of “motor vehicle” is the one found under the Ontario Highway Traffic Act.
The HTA defines “motor vehicle” includes an automobile, motorcycle, motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car, or other motor vehicles running only upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine within the meaning of this Act
Thus, it includes a car or a truck that the employee works in or frequents during the course of their employment.
Also, vehicle is not referred to as private vehicle like private dwelling… vehicle here means any vehicle owned by the employee or the employer that the employee works in or frequents during the course of their employment.
The Act states “and (ii) to which the public is ordinarily invited or permitted access, either expressly or by implication,” I can’t believe the public would be allowed access to a company’s truck; would it not be classified as off limits to the public?
Was the truck owned by the truck driver or by the company he works for? If “enclused workspace” does not apply to a private dwelling, so people with a home office can smoke without being fined, why can’t it apply to a private vehicle? or does it?