The Smoke-Free Ontario Act, 2017, prohibits smoking of tobacco, the use of electronic cigarettes to vape any substance, and the smoking of cannabis (both medical or recreational) in common areas of public places. This includes common indoor areas of condos, apartments and buildings including the corridors, elevators, laundry rooms.
Municipal governments have the authority to ban or restrict smoking and vaping in public places within their geographic limits and to create smoking by-laws that exceed Ontario’s smoke-free legislation. Contact your local municipality to find out if any such by-laws apply to your building.
Landlords have the right to include a no-smoking clause in all new and renewing tenancy agreements to ban smoking in individual units, outdoor balconies and patios or any area of the residential property. Landlords have the ability to protect the health and safety of their tenants and protect their property, as long as their policy doesn’t interfere with other federal or provincial laws. Adopting a smoke-free policy is similar to adopting other policies, such as no pets or no barbecues policy.
However, under the Residential Tenancies Act, 2006 a landlord cannot change an existing tenancy agreement without the approval of the tenant. This means that tenants without a no-smoking clause in their tenancy agreement can continue to smoke in their units for the length of their tenancy.
Enforcement Officers from local public health units will carry out inspections and investigate complaints in common areas of apartments, condominiums and college and university campuses in order to enforce the Smoke-Free OntarioAct, 2017. Call your local public health unit to report a violation of the Smoke-Free Ontario Act.
Under the Smoke-Free Ontario Act, 2017, landlords have a responsibility to:
- Ensure that everyone is aware that smoking is prohibited in common areas;
- Remove ashtrays and any object that serves as one;
- Ensure that no one smokes in the common areas of these residences;
- Post “no-smoking and no-vaping” signs at all entrances, exits, washrooms, and other appropriate locations.
Landlords are obligated under the Residential Tenancies Act, 2006 to ensure the premises meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.
What can you do?
- Download How to implement a no-smoking policy for a multi-unit dwelling: A protocol for rental housing;
- Consider adopting a no-smoking policy;
- Investigate where the smoke is coming from, and how it is entering the unit;
- Seal and caulk cracks and gaps to mitigate the smoke. This will work best if you seal both units: where it is coming from and where it is going;
- Service the ventilation system and ensure the system is functioning properly;
- Talk to tenants who smoke. Explore the option of smoking outdoors, or in one particular room with the window open, etc. Tenant might not be aware that smoke bothers other tenants in the building.
There is no “right to clean air” enshrined anywhere in Canadian Law. However, the Residential Tenancies Act, 2006 states that tenants have a right to reasonable enjoyment of their premises, which includes the right to be free from unreasonable disturbances. This could include not breathing toxic substances such as second-hand smoke on a frequent and on-going basis.
There is no such thing as “the right to smoke.” However, in the absence of a no-smoking policy, tenants have a right to smoke in their units.
It should be stressed that this right is not absolute, and is limited by other people’s right to reasonable enjoyment of their units. While a tenant who smokes chooses to accept the known risks associated with smoking, they do not have the right to require others in the building to share those risks. If there is evidence that second-hand smoke is entering units from a neighbouring unit or balcony on a frequent and ongoing basis, and is substantially interfering with use and enjoyment of another person’s unit, landlords have a responsibility to take steps to correct the problem.
Read Second-Hand Smoke in Multi-Unit Housing: A Tenant’s Guide. It is important to talk to your landlord about second-hand smoke. However, it is equally important to try to minimize the problem yourself by taking steps such as trying to block or seal your apartment where you think the smoke is entering, and working with your landlord to negotiate a solution. If you feel comfortable, you can try talking to the tenant who smokes. Remember, the focus is placed on the smoking, not the smoker.
If your efforts fail to minimize the smoke, and your landlord has not taken reasonable steps to resolve the problem, you can apply to the Landlord and Tenant Board for an order requiring the landlord to provide reasonable enjoyment and/or compensate you for your loss of it. (See taking action). Unfortunately, at the Landlord and Tenant Board there are no policy guidelines for adjudicators to follow regarding second-hand smoke and the loss of reasonable enjoyment. To increase your chances of success, you will need to document the extent, severity and impact of the problem, and collect as much evidence as possible to prove your case.
Under the Residential Tenancies Act, 2006 all tenants have the right to reasonable enjoyment of the rental unit, including the right to be free from unreasonable disturbances from other tenants. The landlord is responsible for ensuring that the tenant has reasonable enjoyment.
If smoke from a neighbouring unit is entering another unit, and is significantly impacting health or how tenants are able to enjoy or use their unit, this can be considered a loss of your right to reasonable enjoyment.
Landlords have a responsibility to take steps to stop second-hand smoke exposure, including last resort steps to end the tenancy. (See legal opinion)
Indigenous people have been using traditional or sacred tobacco for thousands of years. Traditional or sacred tobacco differs from commercial tobacco in that it is used in a variety of ways including ceremonial or sacred rituals for healing and purifying and in social customs where it is given or exchanged as a sign of respect. Traditional or sacred tobacco is grown and dried without additives.
The ceremonial use of tobacco is not exempt from smoke-free policies in multi-unit housing unless explicitly stated. However, under human rights legislation all Ontarians are under a duty to accommodate the religious beliefs and practices of others. The duty to accommodate goes both ways, as such any resident(s) using tobacco for ceremonial purposes should ensure they are not causing other residents undue harm. Tips for supporting ceremonial use of tobacco include:
- Engaging the tenant(s) to understand their ceremonial use of tobacco.
- Learning the duration and frequency of intended ceremonial tobacco use.
- Finding ways to accommodate ceremonial tobacco use that does not expose other tenants to second hand smoke exposure. For example, if possible recommend outdoor use and remove any barriers that might inhibit the ceremony from taking place outdoors.
If the ceremonial use of tobacco is to be used indoors, establish a communication system to inform other residents about the ceremonial use of tobacco in order to avoid complaints and bridge any religious or cultural misunderstandings.
This issue has been considered numerous times throughout the years, and Canadian courts have consistently ruled – with one exception – that addiction to nicotine is not a disability.
In a residential situation, even if people who smoke were found to be a protected group on the basis of their addiction, they would be under a duty to co-operate with alternative solutions for their addiction that do not expose neighbours and bystanders to harmful second-hand smoke. This could include smoking outside or obtaining nicotine through alternative means that do not emit second-hand smoke, such as nicotine gum, nicotine lozenges or nicotine inhalers.
There is no legal precedent to repeal a smoke-free policy to accommodate a resident with a nicotine addiction. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke regardless of others in the building.
A disability designation is very individual. If an adjudicator were to rule that a smoking tenant was disabled, it does not mean that all tenants who smoke, or all tenants in Ontario, would also be recognized as disabled.
Accommodations for medical cannabis must be made on a case by case basis. Accommodations are fact specific and need to address the disability-related needs of the person being accommodated. Accommodations could include:
- Smoking outside
- Using forms of cannabis aside from smoking such as vaporizers, tincture, pills, edibles
- Moving to a unit where outside access is easier.
To justify smoking a number of things would normally need to be established including:
- Smoking is the prescribed method the patient is to consume cannabis to achieve the desired therapeutic effect for the treatment of a disability or disability related symptoms – medical evidence can be requested
- Smoking outside is too much of a hardship (e.g. the person is not ambulatory).
If the above is established, the Housing Provider would need to consider accommodation measures to the point of undue hardship. A housing provider must provide an accommodation but this does not necessarily mean the person has the right to smoke in their unit. Also, it is important to remember that challenges may arise regardless of whether they have any basis. To avoid litigation, somehousing providers may simply allow smoking of cannabis if medical status can be demonstrated.
There is no safe level of exposure to second-hand smoke. Second-hand smoke has more than 50 cancer-causing chemicals and has been identified as a toxic air contaminate and known carcinogen.
People who breathe second-hand smoke are at increased risk for:
- heart disease
- lung cancer
- acute respiratory problems (like asthma)
- chest infections
- excessive coughing
- throat irritation
Unborn babies are at a higher risk for:
- low birth weight
Babies and children are at a higher risk for:
- Sudden Infant Death Syndrome (SIDS)
- croup and coughs
- ear infections
- While they can help, air filters, purifiers and ventilation systems cannot eliminate second-hand smoke. Some of the smoke and larger particles from the air may be removed, but they will not remove the smaller particles or gases found in second-hand smoke.
- Read what Health Canadahas to say about second-hand smoke and air filters, purifiers and ventilation. For more information about ventilation and second-hand smoke visit Centers for Disease Control.
The smoke-free housing directory can help you find smoke-free housing. It lists private, non-profits, condominiums, cooperatives and rentals that have either gone smoke-free or are in the process of doing so and it is being continuously updated.
Ensure that there is a no-smoking clause in the lease (or an attached addendum) that states the entire building is smoke-free, including the private units, and outdoor balconies and patios. It is not enough for the unit to be simply advertised as smoke-free, or to mention on an application form. A standard lease must be signed outlining the smoke-free rules in Section 10.
Questions to ask before signing a lease:
- Does the no-smoking policy apply to all tenants in the building?
- Are there are existing tenants who have been “grandparented” (and are permitted to smoke)? How many are grandparented and where are they located?
- How is the policy enforced?
- Is there a designated smoking area on the property? If so, is it far enough away to ensure that smoke cannot travel into private units or balconies?
- Did the previous tenant smoke in the unit? If so, what steps were taken to remove odour and residue from walls, carpets and drapery?
A no-smoking policy is just like any other policy or rule. Existing tenants who smoke will be grandparented, meaning they will be permitted to continue smoking in their units for as long as they choose to live there. New tenants signing new leases will enter into their agreements fully aware of the policy. Prospective tenants who do not like the policy have the choice to seek accommodation elsewhere.