Tribunals & Administrative Decisions

Canadian Court and Tribunal Findings that Secondhand Tobacco Smoke is Harmful to Health

Prepared by:
Rob Cunningham
June 26, 2003

This note provides excerpts from a number of decisions by Canadian courts and tribunals respecting the hazards of secondhand smoke.

  1. In JTI-Macdonald et al. v. Attorney General of Canada, [2002] J.Q. no. 5550 (Quebec Superior Court, December 13, 2002, the Court upheld federal restrictions on advertising and promotion, and requirements for large, picture-based health warnings on tobacco packages. In the course of the judgement, Justice Denis stated:

    “The evidence shows that second-hand smoke harms everyone, both smokers and non-smokers, and that the children of smokers are particularly affected. This is not an attempt to lay blame. It is a fact.” ) (para. 526)

  2. In the Andrea Skinner case, a decision of the federal Board of Referees, Employment Insurance (case number 03-0005, April 30, 2003), the Board unanimously granted Andrea Skinner’s appeal and awarded her the employment insurance payments claimed. The Board concluded that she had just cause for leaving her employment with Casino Nova Scotia due to exposure to secondhand smoke. The decision stated: “The Board finds that there is sufficient medical evidence to substantiate the hazards of second hand smoke in the workplace.”

  3. In the Heather Crowe case, the Ontario Workplace Safety & Insurance Board awarded worker compensation to a waitress exposed to secondhand smoke. In a decision released October 11, 2002, the Board stated:

    “I am writing to inform you of my decision regarding the Workplace Safety & Insurance Board (WSIB) claim #22754356, dated March 2, 2002, for lung cancer due to workplace exposure to second hand smoke. . . . Corroboration and compatibility of the history of second hand smoke exposure to the diagnosis of lung cancer was confirmed by you, your employer, your treating physicians, literature provided by your lawyer as well as the City of Ottawa Public Health Department, WSIB Nurse Case Manager, WSIB Occupational Hygienists and WSIB Occupational Medical Consultants. Based on the information provided to date and entitlement criteria being met, I have allowed your lung cancer claim and have granted entitlement to the following WSIB benefits . . .”

  4. In Vaughan et al. v. Mental Health Centre Penetanguishene (Ontario Superior Court of Justice, May 8, 2003, court file 252/03), the Court rejected an injunction application to block implementation of a smoking ban at Oak Ridge, part of the Mental Health Centre Penetanguishene. Oak Ridge is a maximum security psychiatric facility that houses patients who have been violent and are regarded as a risk to others and to themselves. Stated Justice Lang:

    ”Smoking, on the evidence before the court, compromises the health and well being of the facility’s staff and the other patients. The dangers inherent in smoking, and even more so in exposure to second-hand smoke, are not alleviated, on the evidence, by smoking rooms and smoking outdoors.

    The MHCP’s evidence is uncontradicted that the smoking rooms do not successfully curtail the leakage of smoke into the common areas.” (para. 15-16).

  5. In The Royal Canadian Horse Artillery Brigade Association et al. v. Kingston (City) (Ontario Superior Court of Justice, May 9, 2003, File No. 14852/03), the Court cited the harms of secondhand smoke in rejecting an injunction application to block implementation of the Kingston smoking bylaw. Stated Justice Robertson:

    ”it is important to protect the public from health hazards and the consequences of environmental tobacco smoke. This is the new term for second hand smoke. The public, patrons, and staff should be protected.” (p.3)

  6. In Ottawa (City) v. Barrymore’s Inc., [2002] O.J. 3871 (Ontario Superior Court of Justice), the Court granted an injunction restraining several bars from violating the Ottawa smoking bylaw. Stated Justice Smith:

    ”Even if the City had to show irreparable harm in the same way as a private litigant, I would find that the increased health risk of contracting cancer, heart disease and other illnesses caused by being exposed to ETS, does constitute irreparable harm which is not adequately compensated by damages. ... In any event, I find that the City has demonstrated irreparable harm based on the increased health risk to those citizens and employees exposed to second-hand tobacco smoke.” (para. 68-69)

  7. In McNeill v. Ontario (Ministry of Solicitor General and Correctional Services) (1998), 126 C.C.C. (3d) 466 (Ontario Court General Division), the Court dismissed a claim that a smoking ban in a jail, adopted pursuant to the Guelph smoking bylaw, violated Charter equality rights or the right to be free from cruel and unusual punishment. In the course of the judgement, Justice O’Connor stated:

    “The evidence is uncontroverted that tobacco smoke contains harmful carcinogenics that cause serious illnesses to both the smoker and those exposed to smoke “second-hand”. Quitting smoking improves the health significantly of both the smoker and those around him/her.” (p.470)

  8. In R. v. de Havilland Canada Ltd [1991], O.J. No.2396, DRS 93-08633, Action No.142/91 (Ontario Court of Justice, Provincial Division, Toronto), at issue was a prosecution under the Occupational Health and Safety Act. The company was convicted for disciplining employees who exercised their right to refuse unsafe work due to exposure to secondhand smoke. With respect to the health risks from second hand smoke, Judge Charles stated that "the evidence is empirical and compelling."

  9. In Regina Correctional Centre (Inmate Committee) v. Saskatchewan (Department of Justice) (1995), 30 C.R.R. (2d) 371, 133 Sask. R. 61 (Saskatchewan Court of Queen’s Bench), affirmed Saskatchewan Court of Appeal, October 2, 1995 without written reasons, the Court dismissed a claim that a prison smoking ban violated sections 2(a) (freedom of religion), 7 (fundamental justice), 12 (cruel and unusual punishment) and 15 (equality) of the Charter. In the judgement, Justice Kyle stated:

    “While tobacco is addictive it is also a health risk when smoked, not only to the user but to others and it is for these persons that the authorities have chosen to regulate its use. The resulting deprivation to the inmates is not therefore a punishment, nor even a treatment, but merely a necessary precaution to protect non-smoking employees and inmates (who may have a constitutional right not to smoke) from the effects of environmental or “second hand” smoke.” (para. 13)

  10. In Rosen v. Ontario (Attorney General) (1995), 27 C.R.R. (2d) 162, (Ontario Court, General Division), affirmed (1996), 131 D.L.R. (4th) 708, 27 O.A.C. 280, 34 C.R.R. (2d) 84 (Ontario Court of Appeal), leave to appeal to Supreme Court of Canada dismissed, 26 September 1996), the constitutionality of a ban on tobacco sales in pharmacies was affirmed. Justice Boland of the Ontario Court General Division stated “It has been established that tobacco products are a health hazard to those who smoke and to those who inhale environmental tobacco smoke.” (para. 12)

  11. In MacDonald v. MacDonald [2003], N.S.J. 90 (Nova Scotia Supreme Court, Family Division), the Court considered issues regarding child custody. In the decision, Justice Gass stated:

    “There is no dispute that second hand smoke is dangerous to children. It is recognized that children have the right to be raised in a smoke free environment. The Court has the authority to impose conditions on custody. A condition of custody will be that there will be no smoking in the home when the children are present.” (para. 21)

  12. In Ontario Pubic Service Employees' Union v. Ministry of Labour; Ministry of the Solicitor General and Correctional Services - Sault Ste. Marie Jail [1996] O.O.H.S.A.D. No.18, Decision OHS 96-19, File No.AP 93-79 (March 8, 1996, Occupational Health and Safety Adjudicator, Robert Blair), the issue of smoking in prisons was considered. In this case, prison guards argued that smoking by inmates infringed s.25(2)(h) of the Ontario Occupational Health and Safety Act which states that “an employer shall ... take every precaution reasonable in the circumstances for the protection of a worker.” The Adjudicator upheld the complaint by prison guards. In the decision, the Adjudicator stated:

    “I am driven to the conclusion that the presence of ETS in a workplace represents a potential hazard to the health of workers in that workplace.” (para. 12)

    “Given the overwhelming evidence about the potential health effects of ETS, it is incumbent on an Employer such as the one before me to develop such a control program [namely 1994 U.S. OSHA proposal of separately enclosed independently ventilated smoking rooms] if it decides (as this Employer has) not to prohibit indoor smoking.” (para. 60)

    “It is unacceptable to come to the conclusion that a smoke-free workplace is the right answer for the majority of the Government of Ontario’s employees, but to simply write off the correctional facilities as inherently and forever smoky. An answer to the issue needs to be found, and the employer has a clear duty under s.25(2)(h) of the Act to develop and answer.” (para. 65)

    “the Employer must set as its goal the achievement of a working environment in this correctional facility where ETS exposure is at the same level as it would be in a non-smoking building, except as might become necessary in the course of the carrying out of a correctional officer's duties to engage in face-to-face contact with a smoking inmate. Notwithstanding this exception, ETS exposure at the ordinary indoor work locations of correctional officers must be brought within the non-smoking building standard.” (para. 69)

  13. There are other decisions, including labour arbitrations, with findings that secondhand tobacco smoke is harmful to health.

Rob Cunningham, B.A., LL.B., M.B.A. is a Senior Policy Analyst with the Canadian Cancer Society.

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