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 Codeprovides 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.”
“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.”
If you are a tenant with 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 your landlord has not taken reasonable steps to prevent second-hand smoke from infiltrating your unit. You could argue that the landlord has a responsibility to limit or ban smoking in the building in order 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 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.
We are aware of just one SHS case filed in Ontario, although in British Columbia we know of a good handful of cases where tenants and strata (condo) owners have filed human rights applications against social housing providers or strata corporations for failure to eliminate second-hand smoke or to provide smoke-free housing. A Canadian precedent was set in May 2012 when a couple from Langley, BC who had owned a strata was awarded $8,000 for their involuntary exposure to SHS from their neighbour’s balcony. Read the story here.
You can search for actual human rights decisions on the website of the Canadian Legal Information Institute.Use key words “second-hand smoke” or “smoking.”
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 our article on Human Rights and No-Smoking Policies for Multi-Unit Dwellings.