There are a number of laws that have a bearing on the issue of smoking in condominiums in Ontario. This section provides a brief description of these laws.
The following information comes from a legal opinion prepared by Perley-Robertson, Hill & McDougall.
In Ontario, condominium corporations are subject to the Condominium Act, 1998, which is silent on the issue of smoking. Condominium corporations are created by the registration by the owner of the property of the declaration and description and, prior to such registration, do not exist in law. The declaration deals with the framework of the condo corporation–it is the equivalent to its constitution. It may specify conditions or restrictions with respect to the occupation and use of the units or common elements (section 7 (4) (b)). Once registered, the declaration can only be changed with regard to conditions and restrictions on the occupation and use of the units or common elements by the condo corporation board of directors enacting the change and the owners of at least 80% of the units consenting to the change. The description includes the plans which focus on the boundaries of the units and common elements.
Once created, a condo corporation is governed by a board of directors elected by the members of the corporation. The board of directors enacts bylaws which tend to deal with matters of corporate governance and management issues. Before taking effect a bylaw enacted by the board must be approved by a majority of the condo unit owners. Section 56 (1) of the Act provides that the bylaws may govern the maintenance of the units and common elements (paragraph (j)) and govern the management of the property (paragraph (l)).
The board of directors of a condo corporation may also, pursuant to section 58 (1) of the Act, make rules respecting the use of the common elements and the units to:
(a) promote the safety, security or welfare of the owners and of the property and assets
of the corporation; or
(b) prevent unreasonable interference with the use and enjoyment of the common
elements, the units of the assets of the corporation.
Section 58 (2) of the Act provides: “The rules shall be reasonable and consistent with this Act, the declaration and the bylaws.” Rules made by a condo corporation board of directors take effect 30 days after notice of them is given to the unit owners unless the unit owners require a meeting of owners which can amend or repeal rules.
Accordingly, a condominium corporation could conceivably establish a no-smoking policy in any of the declaration or the rules.
Download the Condominium Act, 1998.
Tenants have to follow the rules, bylaws, and the condo’s declaration. This means if the condo establishes a smoke-free policy, tenants are required to abide by it.
Cases where a tenant is renting and there is no condo smoke-free policy in place are different. When a condo owner rents out his or her unit, a landlord and tenant relationship is established. Residential tenancy relationships in Ontario are governed by the Residential Tenancies Act, 2006 (RTA). The Act details the rights and responsibilities of landlords and tenants of residential premises. The Act also provides a means of settling disputes at the Landlord and Tenant Board.
It is legal for a landlord to adopt a no-smoking policy for his or her condo unit. Landlords have the right to impose additional obligations or restrictions on tenants beyond the standard lease agreement, as long as these requirements do not conflict with the Residential Tenancies Act, the Ontario Human Rights Code, or any other laws.
However, a no-smoking policy would only apply to new tenants signing new leases. Section 38 (1) of the Actstates that if a tenancy agreement for a fixed term has ended and the tenancy has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement. Existing tenants who want to smoke in their units would be “grandfathered,” meaning they would be permitted to continue smoking in their units for the length of their tenancy.
If a tenancy agreement does not include a no-smoking clause, and the condo corporation itself has not implemented a smoking ban, a tenant is permitted to smoke in his or her rented condo unit.
This may not mean that a tenant has an absolute right to smoke regardless of others in the building. Section 22 states that a landlord shall not interfere with a tenant’s reasonable enjoyment of the unit, which could include doing nothing about second-hand smoke infiltration from neighbouring units (provided they are also in the landlord’s possession).
While the law does not specifically mention second-hand smoke as grounds for a breach of reasonable enjoyment, there have been legal cases in Ontario where second-hand smoke infiltration, causing a significant disturbance, has been successfully argued as a breach of reasonable enjoyment.
However, things can become tricky when second-hand smoke is infiltrating an owner-occupied unit from a rented condo unit. In this situation, the Residential Tenancies Act, 2006 has no jurisdiction. The condo owner who is being involuntarily exposed can either try talking directly to the tenant about the problem, or can contact the landlord and deal with them owner to owner. See the common questions section for more information.
Download the Residential Tenancies Act, 2006.
For more information, visit the Ontario Landlord and Tenant Board online.
In Ontario, smoking is banned in all indoor public places and workplaces, including restaurants and bars. Under this law, smoking is prohibited in the common areas of multi-unit dwellings including foyers, elevators, stairwells, laundry rooms, corridors, etc. This is true regardless of the number of units. However, the Act does not apply in situations where people are sharing “common areas” within private units such as kitchens, living rooms and bathrooms.
In certain situations, such as the provision of daycare or home health care, the Act recognizes private dwellings as workplaces and smoking is also prohibited.
The law allows certain types of residences that are also workplaces to provide “controlled smoking areas” (also known as designated smoking rooms) for the use of residents only, provided they are separately enclosed, meet strict ventilation requirements, and are only used by residents who are able to smoke independently. By law, the following types of multi-unit facilities are permitted to have controlled smoking areas:
- Nursing homes, charitable homes for the aged, supportive housing residences;
- Retirement homes that provide care;
- Psychiatric facilities; and
- Residential facilities for veterans.
Hotels and other types of temporary guest accommodations are explicitly exempted from Ontario’s smoke-free legislation, meaning that smoking is permitted in private rooms unless the hotel has adopted a no-smoking policy.
Download the Smoke-Free Ontario Act.
For more information, visit Smoke-Free Ontario online.
Municipal governments have the authority to ban or restrict smoking in public places within their geographic limits and to create smoking bylaws that exceed Ontario’s smoke-free legislation. There is a growing number of municipalities in this province that have passed bylaws prohibiting smoking within a certain distance from doorways to public places and/or buildings owned or leased by the municipality. Contact your local municipality to find out if any such bylaw applies to your building, or visit the Non-Smokers’ Rights Association online for more information.
Every province and territory in Canada has a piece of legislation governing human rights. In Ontario it is called the Human Rights Code and it exists to give Ontarians equal rights and opportunities on such matters as employment, housing and services. The Human Rights Tribunal of Ontario is a quasi-judicial body that exists to resolve discrimination claims filed under the Ontario Human Rights Code. The Code provides protection from discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, disability, age, marital status, family status, being a recipient of public assistance and record of offences. When there is a conflict between the Code and another Ontario law, the Code usually has priority.
In a housing context, the Human Rights Code contains some provisions of interest concerning smoking and no-smoking policies–sections 2 (1), 11 (1) (a) and 17 (1) and (2):
“Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.”
“A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances…”
“A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.”
“No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
It is possible that a condo owner with asthma, allergies, COPD or any other disabling health condition that is being made worse by involuntary exposure to second-hand smoke could file an application at the Human Rights Tribunal of Ontario on the basis that the condo corporation did not take reasonable steps to resolve the problem. The condo owner could argue that the corporation has a responsibility to limit or ban smoking in the building in order to accommodate their disability.
We are not currently aware of any such cases in Ontario, although in British Columbia we know of a couple of cases where tenants have filed human rights applications against social housing providers for failure to eliminate second-hand smoke or to provide smoke-free housing. One of the cases, which involved the Greater Vancouver Housing Authority, was settled before it went to a full hearing and no further details are available. However, the case is important as the adjudicator denied the landlord’s application to have the tenant’s application dismissed, and determined that the tenant’s application had merit which deserved a full hearing.
The second case involved thirteen tenants filing a discrimination complaint against Kiwanis Park Place in Crescent Beach for being exposed to other tenants’ second-hand smoke. More…
On the flip side, smoking is not identified in the Code as a ground for protection. In 2007 the Ontario Human Rights Commission held a series of public hearings to examine the issue of human rights and rental housing. It subsequently published a report entitled Right at home: Report on the consultation on human rights and rental housing in Ontario. On the issue of smoking, the report concluded that “there are conflicting decisions as to whether or not smoking can be considered a disability and whether allowing people to smoke is an appropriate accommodation.”
Further, in the summer of 2009 the Ontario Human Rights Commission published guidelines to help improve equal access to rental housing in Ontario. The document, Policy on Human Rights and Rental Housing, is Canada’s first comprehensive look at how barriers to housing can be indentified and eliminated.
Section 6.1 deals with smoking, and concludes by stating:
A housing provider has a duty to explore accommodation requests from tenants with any form of disability. Tenants may also be asked to cooperate and help facilitate the provision of accommodation for themselves, and where appropriate, for their fellow tenants as well.
However, given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship, for example, by negatively affecting the health and safety of other tenants.
This issue of smoking as a disability has been considered a number of times over the years, and Canadian courts have consistently ruled–with one exception–that addiction to nicotine is not a disability. The one exception was a British Columbia Labour Relations Board decision in an employment context. Cominco, a nickel smelter, had banned smoking on the plant site, and while the Board found that the ban discriminated against heavily addicted smokers, it also recognized that the employer’s no-smoking policy was reasonable and was adopted to protect non-smokers from a known hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers and Cominco’s smoking ban remains in effect today. More on Cominco…
It is important to note that this decision applied to an employment situation. With respect to housing, it is unlikely that an arbitrator or judge would prefer to have tenants/condo owners be continually exposed to second-hand smoke rather than infringe on someone else’s supposed right to smoke. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke.
The key issue is nicotine withdrawal. Even if in the future an adjudicator or judge ruled someone’s smoking as a disability, the focus then becomes one of reasonable accommodation by the corporation to the point of undue hardship. This could potentially include the provision of an outdoor smoking area, physical modifications to the smoker’s unit or provision of nicotine replacement therapy, etc.
It should also be noted that a disability designation is very individual. If a judge were to rule that a smoking tenant/condo owner was disabled, it does not mean that all smokers in the building (or in the rest of the province) would also be recognized as disabled.
Download the Ontario Human Rights Code.
Download the Policy on Human Rights and Rental Housing