Inuvik (Oct 22/04) - Ninety North Construction didn't violate the workplace smoking ban and won't have to pay a $5,000 fine.

That's what a judge ruled last week when he dismissed the fine -- the first in the territory against a company -- levied against Ninety North Construction.

In his ruling, Justice of the Peace Tom Kirby said that while the court acknowledged that smoking had taken place at the site, there was no proof that the area designated a smoking room by Ninety North Construction was in fact a work space, as alleged by Workers Compensation Board (WCB) senior officer Will Wong, who issued the ticket.

Perhaps more of a factor in Kirby's ruling was that while Wong witnessed smoking on the job site in a previous instance, he told the court that nobody was smoking when he gave the fine.

In his testimony, Wong said that on May 17, 2004, he observed site superintendent Dave Northcott and another individual smoking in a room with drafting tables that appeared to be a working area at the Mackenzie Road site.

According to Wong, after witnessing Northcott and another employee smoking, he issued the men a warning.

When he returned three days later a "designated smoking area" sign had been posted on the door to the same room.

Though Wong testified he saw no smoking at the "designated" area that day, he wrote up a $5,000 fine for what he perceived was a violation of the Environmental Tobacco Smoke (ETS) workplace regulations.

During his turn on the stand, Northcott refuted the claim that Wong saw him smoking.

Taking the stand in Ninety North's defence, project manager Bob Stuve said he constantly discouraged smoking on the worksite. He insisted that the "designated smoking area" was not a working area.

Under cross examination, WCB legal counsel Bob Gorin asked why Stuve never considered termination as a disciplinary measure for workers caught smoking on the site.

"Absolutely not," replied Stuve, who had previously testified that approximately 26 of his 30 employees working on site were smokers.

"We'd have had nobody left to work on the building," he said.

In his closing arguments, Paul Smith, representing Ninety North, noted that a designated smoking room is entitled under Section 3 of the ETS regulations.

After the ruling in Ninety North's favour, Stuve was pleased as he left the courtroom.

"Justice has been done and I'm glad we can put this behind us," he said.

When asked if the WCB would appeal the ruling, Gorin, who was joined by WCB chief safety officer Gordon Becket, had no comment.