Published by the Labour Group
McCarthy Tétrault FRANÇAIS 2015
Legal Update

E-cigarettes in the workplace
by: Julie C. Fortier, Guylaine Lacerte

The use of electronic cigarettes ("e‑cigarettes") in public places and in the workplace has given rise to numerous debates. Indeed, the legislative and regulatory requirements are uncertain since e‑cigarettes are still an unknown quantity in terms of impacts on users' health and on individuals nearby who may be exposed. While some automatically categorize e‑cigarettes with regular cigarettes and would like to see the same guidelines applied, others have taken a more nuanced stance, due in part to the fact that the composition of e‑cigarettes differs slightly from that of regular cigarettes (which contain tobacco, nicotine, etc.). Some even champion e‑cigarettes for making it easier for users to cut down or stop smoking altogether.

The composition of e‑cigarettes is only partially known and may vary considerably from product to product, unlike regular cigarettes, which consistently have the same basic ingredients. Although e‑cigarettes primarily contain vegetable glycerin, propylene glycol, aromas and nicotine, impurities and synthetic chemical contaminants have been detected in some brands. Occasionally, certain substances (e.g. alcohol, marijuana or other drugs) may be added to the vapour given off by the product. This makes e‑cigarettes hard to define in terms of composition. In addition, some brands contain nicotine, while others do not. However, scientists have detected nicotine in some products labelled "nicotine free".

Since they only appeared on the market a few years ago, e‑cigarettes do not always belong to a clearly defined category of consumer products. Are they an alternative to cigarettes? Are they a drug? In 2009, Health Canada issued a notice in which it advised against using e‑cigarettes and pointed out that the sale of these products violated the Food and Drugs Act[1] since the marketing of e‑cigarettes had not been authorized in Canada. According to Health Canada, e‑cigarettes fall within the definition of a drug within the meaning of paragraphs 2(a) and 2(b) of the Act, which read as follows:

"Drug" includes any substance or mixture of substances manufactured, sold or represented for use in

(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,

(b) restoring, correcting or modifying organic functions in human beings or animals […]"

According to Health Canada, e‑cigarettes meet the definition in paragraph (a) above because they may be used to treat nicotine addiction and may thus be useful in the treatment of a disease. Health Canada also maintains that e‑cigarettes meet the definition in paragraph (b) since they may contain nicotine and nicotine modifies bodily functions. In the case Zen Cigarette Inc. vs. Canada (Health), 2012 CF 1465, the Federal Court upheld Health Canada's arguments.

Therefore, in order for e‑cigarettes to be imported, advertised or sold, they must undergo a lengthy drug approval process.

At the federal level, the Non-smokers' Health Act requires employers subject to the Canada Labour Code to ensure that no one smokes in a workplace within their jurisdiction.[2] However, this law only applies to tobacco products, which are defined as "any product manufactured from tobacco and intended for use by smoking".[3] Therefore, the application of this law is problematic since e‑cigarettes do not contain tobacco, although they often contain nicotine and various chemical substances.

It should be noted that under Quebec's Tobacco Act[4] and regulations,[5] "any product that does not contain tobacco and is intended to be smoked" is included with tobacco.[6] Under this law, smoking is prohibited in many enclosed spaces, including workplaces (except those situated in a dwelling).[7]

Although at first glance this provision would seem to apply to e‑cigarettes, that does not appear to be the case as the provincial government recently moved to amend the Tobacco Act by extending the scope of the legislation to consider e‑cigarettes to be tobacco and by setting rules for tobacco use in certain places. The last major amendments to the Tobacco Act were adopted in 2005. Bill 44 ("An Act to bolster tobacco control") was tabled in Quebec's National Assembly on May 5, 2015 by the public health minister. In addition to imposing new penal provisions, this legislation increases the fines for offences under the Act and reinforces other penal provisions by making employers and the directors and officers of legal persons, partnerships and associations more accountable.

An interesting parallel may be drawn between e‑cigarettes and shisha, a substance made of fruit or plant-based molasses consumed using a water pipe (shisha may or may not contain tobacco, nicotine or tar). Shisha is sold over the counter in specialty stores but, in accordance with the Tobacco Act and regulations, it cannot be displayed in public view or sold to minors.

In 2013, the Criminal and Penal Division of Quebec's Superior Court[8] granted the appeal of a Quebec Court ruling in which the respondent (the operator of a retail establishment) had been acquitted of charges brought against her under section 11 of the Tobacco Act, which reads as follows:

11. The operator of a place or business to which this chapter applies shall not tolerate smoking in an area where smoking is prohibited.

In proceedings for a contravention of the first paragraph, the operator of the place or business is deemed to have tolerated smoking in an area where smoking is prohibited if it is shown that a person smoked in that area. The onus is on the operator to show that smoking was not tolerated by the operator in an area where smoking is prohibited.

In this case, the Superior Court regarded shisha as tobacco within the meaning of the Tobacco Act and ruled that the respondent was guilty of having tolerated smoking in a prohibited area. The Superior Court ruled that the regulation was unambiguous and that the phrase "any product that does not contain tobacco and is intended to be smoked is considered to be tobacco" was clear in textual as well as regulatory terms.

The Régie des alcools, des courses et des jeux (the "Board") draws on the principles set out in the Superior Court's decision when it decides whether or not to issue, suspend or revoke a liquor permit.

In a recent decision[9], the Board stated that although it was not responsible for enforcing the Tobacco Act, it was still required to determine whether the consumption of shisha within a licenced establishment was contrary to the public interest or could disturb the public peace. Since the Tobacco Act was enacted in the public interest, the Board must ensure that the law is complied with in establishments that have been issued a liquor permit or that have applied for one. In this case, the Board noted that the Tobacco Act also refers to the Act Respecting Liquor Permits[10] and prohibits the consumption and sale of any product intended for use by smoking, regardless of its tobacco content, in licensed establishments.[11]

Given that the main objective of the Tobacco Act and regulations is to protect public health and given that, in accordance with the abovementioned decision, shisha must be regarded as tobacco within the meaning of the Tobacco Act and regulations, the Board in this case concluded that issuing the requested permit would be contrary to the public interest and would disturb the public peace.

In another case[12] in which the applicant applied for a restaurant-category liquor sales permit while offering clients tobacco-free shisha, the Board rejected the application and concluded that it would be illogical and contrary to the legislation as well as to lawmakers' intentions to allow any type of smoke in public and enclosed places, particularly in establishments in which food is served to the public and in the presence of minors.[13]

Other provinces have moved to regulate the use of e‑cigarettes in public places by legislative means, particularly in Nova Scotia, where a provincial ban will come into effect on May 31, 2015, as well as in Ontario, where lawmakers ensured that e‑cigarettes would be subject to the same legislative process as the use of regular cigarettes.

In January 2015, the City of Montreal adopted a directive prohibiting its approximately 28,000 employees from using e‑cigarettes in the workplace, i.e. in municipal buildings, as well as in City of Montreal-owned vehicles. The ban applies to e‑cigarettes containing nicotine as well as to the nicotine-free variety. This directive only applies to City of Montreal employees, although the City is seeking to extend the ban to prevent Montrealers from smoking e‑cigarettes in municipal buildings (a municipal regulation will have to be adopted in that regard).

As regards the City of Trois Rivières, the municipal government is waiting for the National Assembly of Québec to take a stand, rather than moving to regulate e‑cigarettes itself. That, however, has not stopped a number of educational institutions from banning the use of e‑cigarettes in their buildings.

As they await the adoption of provincial legislation setting out clear guidelines on the use of e‑cigarettes, businesses must implement and enforce their own internal rules in this regard. Employers will thus have to take a stand on the use of e‑cigarettes in their workplaces and must establish company-specific policies in this regard.

[1] RSC 1985, c F-27.

[2] Sec. 3(1) of the Non-smokers' Health Act, RSC 1985, c. 15 (4th suppl).

[3] Ibid, sec. 2.

[4] CQLR c T-0.01.

[5] Regulation under the Tobacco Act, CQLR c. T-0.01, r 1.

[6] Ibid, sec. 1.

[7] Ibid, secs. 2 and 9.

[8] Director of Criminal and Penal Prosecutions vs. L’Orienthé Montréal Ltd., 2013 QCCS 915.

[9] Adonicia Restaurant, RACJ, decision no. 40-0006237, September 11, 2014.

[10] CQLR, c. P-9.1.

[11] Op. cit., note 9, paragraph 69; sections 2 (8.2) and 17 (6) of the Regulation under the Tobacco Act, CQLR c. T‑0.01, r 1.

[12] Le Café Barcode, RACJ, decision no. 40-0004966, August 2, 2012. See also Café Sphynx, RACJ, decision no. 40-0005941, March 5, 2014 and Le Hub 33, RACJ, decision no. 40-0006126, May 8, 2014.

[13] Ibid, paragraph 27.