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 Landlord and Tenant Board.
Unlike section 14 of the Act, which specifically indicates that “no pet” provisions are void, the RTA is silent on the issue of smoking. In other words, it is legal for a landlord to adopt a no-smoking policy for some or all of the private units, as well as the entire property if so desired. 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 federal law.
However, a no-smoking policy would only apply to new tenants signing new leases. 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 conitions that are in the expired tenancy agreement. By law, 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, 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.
A social housing unit is treated somewhat differently under the Residential Tenancies Act, 2006 and is subject to the Social Housing Reform Act, 2000. Section 7 (1) of the RTA sets out a series of sections that do not apply to social housing, but none of these sections relate to the issue of smoking in multi-unit dwellings. In other words, there is nothing in this Act to prevent social housing landlords from adopting a no-smoking policy.
The Social Housing Reform Act, 2000 proposes to provide efficient and effective administration of housing programs. Pursuant to sections 4 (1) and (2) of the Act, the Minister of Municipal Affairs and Housing designates, by Regulation, service managers who manage the waiting lists for social housing (not the landlords). In many cases a municipality or municipal organization is designated as service manager.
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 bylaws apply to your building, or search online using the Non-Smokers’ Rights Association bylaw database.
Municipalities involved in the provision of social housing have the jurisdiction to prohibit smoking in private units – not by bylaw but via policy. The Region of Waterloo was the first in Ontario to do so, in 2010.
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 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). It is possible that a tenant could file an application at the Human Rights Tribunal of Ontario on the basis that the landlord did not take reasonable steps to resolve a problem of second-hand smoke infiltrating his or her unit from a neighbouring unit. A tenant who suffers from a disability that is exacerbated by second-hand smoke, such as asthma or allergies, could take the position that the landlord has a responsibility to limit or ban smoking in order to accommodate the tenant’s disability. (See Taking Action.)
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 Ontario 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. Contrary to the claims of various smokers’ rights groups, the Charter does not provide protection against discrimination as a smoker.
The rights and freedoms listed above were chosen as examples because various Canadian smoke-free laws and policies have been challenged under these sections of the Charter. Judges presiding over these cases have consistently ruled that the Charter does not recognize smokers as a group suffering social, political, or legal disadvantage in our society. Under this legislation smoking is not considered a physical disability, and this has been demonstrated in a handful of cases.