There are various laws that have a bearing on the issue of smoking in residential rental accommodation in Ontario. This section provides a brief description of these laws.
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 Ontario Landlord and Tenant Board.
It is legal for a landlord to adopt a smoke-free policy for some or all of the private units, as well as the entire property. 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 law.
However, a no-smoking policy would only apply to new tenants signing new leases. In other words, policies must be “Grandfathered” (i.e. affect only new tenants)
Section 38 (1) of the Act states 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.
If a tenancy agreement does not include a smoke-free clause, tenants are allowed to smoke in their units. However, this does not mean that tenants have 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 can include doing nothing about second-hand smoke infiltration from neighbouring units.
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.
Download the Residential Tenancies Act, 2006.
For more information, visit the Ontario Landlord and Tenant Board online.
Social or community housing is treated somewhat differently under the Residential Tenancies Act, 2006 and is subject to the Housing Services Act . Section 7 (1) of the RTA sets out a series of sections that do not apply to social or community housing, but none of these sections relate to the issue of smoking in multi-unit dwellings.
There is nothing in this Act to prevent a social or community housing landlord from adopting a smoke-free policy. In fact, many have started the process. Please see our directory for more details.
Download the Housing Services Act, 2011
In Ontario, smoking is banned in all indoor public places and workplaces, including restaurants and bars. In addition, some public outdoor spaces such as playgrounds and sports fields are also included
Under this law, smoking is prohibited in the common areas of multi-unit housing including foyers, elevators, stairwells, laundry rooms, corridors, etc.
However, the Act does not apply in situations where people are sharing “common areas” within private units such as kitchens, living rooms and bathrooms. There also are exemptions for some times of housing such as nursing homes.
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.
Municipalities involved in the provision of social housing have the jurisdiction to prohibit smoking in private units. Although to date none in Ontario have done so, the City of St. John’s, Newfoundland adopted a no-smoking policy for its social housing.
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 tenant 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 you, the landlord, did not take reasonable steps to resolve the problem. The tenant could argue that you have 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 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.
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 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 a tenant’s smoking as a disability, the focus then becomes one of reasonable accommodation by the landlord 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 was disabled, it does not mean that all smokers in your building (or in the rest of the province) would also be recognized as disabled.
Download the Ontario Human Rights Code.
Download the Non-Smokers’ Rights Association Human Rights and No-Smoking Policies for Multi-Unit Dwellings fact sheet.
Download more information on smoking and human rights case law.
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the
Constitution of Canada. It forms the first part of the Constitution Act, 1982, and is intended to
protect certain political and civil rights of people in Canada from the policies and actions of all
levels of government. Examples of such rights and freedoms include:
- The right to life, liberty and security (section 7);
- The right to not be subjected to any cruel and unusual treatment or punishment (section 12);
- The right to equality before and under the law (section 15);
- Freedom of thought, belief, opinion and expression, including freedom of religion (section 2a)
The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), not to private activity such as what is contained in a landlord’s lease. However, the Charter does apply to social housing providers owned or operated by municipalities. Contrary to the claims of various smokers’ rights groups, the Charter does not provide protection against discrimination as a smoker.
Judges have consistently ruled that the Charter does not recognize smokers as a group suffering social, political, or legal disadvantage in our society. Smoking is not considered a disability. See Canadian Case Law on Drifting Second-hand Smoke in Multi-Unit Dwellings