The Human Rights Tribunal of Ontario is a quasi-judicial body that exists to resolve discrimination claims filed under the Ontario Human Rights Code on such matters as employment, housing and services. 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.

In a housing context, sections 2 (1), 11 (1) (a) and 17 (1) and (2) of the Human Rights Code, which deal with disability and accommodation, are of interest concerning smoking and no-smoking policies:

“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.”

and

“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…”

and

“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.”

and

“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.”

If you have asthma, allergies, COPD or any other disabling health condition that is being made worse by your involuntary exposure to second-hand smoke, you could file an application on the basis that the corporation has not taken reasonable steps to prevent second-hand smoke from infiltrating your unit. You could argue that the board has a responsibility to accommodate your disability.

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 identified 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.

We are not currently aware of any such cases in Ontario, although in British Columbia we know of a several of cases where tenants/condo owners have filed human rights applications 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…

In a third case, a person with a disability succeeded in forcing her strata (condominium) to take action regarding exposure to second-hand smoke.  More…

Be aware that if you choose to file a human rights application, it can be a long and time-consuming journey. You can apply for legal representation, but there is no guarantee that you will be provided with free representation. Go to legal resources for a list of organizations that may assist you if you are considering this route.

Download an Applicant’s Guide to the Human Rights Tribunal of Ontario.

Download our article on Human Rights and No-Smoking Policies for Multi-Unit Dwellings.

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