The information that follows comes from a legal opinion prepared by David H. Hill, C.M., Q.C of Perley-Robertson, Hill & McDougall in 2008. It was commissioned by the former Ontario Tobacco-Free Network, a provincial interagency network consisting of the Canadian Cancer Society, Ontario Division, the Heart and Stroke Foundation of Ontario and the Lung Association, with input from the Non-Smokers’ Rights Association.

It should be noted that there can be both member and non-member units at a housing co-operative. This information pertains to member units only.

As this section represents our interpretation of the legal opinion, and does not address all of the issues raised in the opinion, it should be used for informational purposes only. If you are planning to implement a no-smoking policy, it is recommended that the complete legal opinion be reviewed. It is also recommended that housing co-operative corporations dealing with specific legal questions on this matter seek independent legal advice.

Yes, it is absolutely legal for a new or existing housing co-operative to adopt a no-smoking policy. This could be achieved by including appropriate provisions in the articles of incorporation or the bylaws or both.

A co-operative may be incorporated under the Co-operative Corporations Act “…for any lawful objects to which the authority of the Legislature extends…” (section 4 (1)). It is incorporated by five or more persons applying for articles of incorporation which articles shall set out “all restrictions on the business that the co-operative may carry on or on the powers that the co-operative may exercise” (sections 5(1) and (2)). The articles may set out any provision authorized by the Co-operative Corporations Act or that “…could be the subject of a bylaw of the co-operative” (section 5 (4)).

Section 21 of the Act provides: “Subject to this Act and the articles, the directors may pass bylaws that regulate the business and affairs of the co-operative.” Bylaws must be confirmed by a two-thirds vote at a general meeting of the members of the co-operative (section 23 (b)).

Section 151 (1) of the Act states that the articles of incorporation of a co-operative can be amended to “extend, limit or otherwise vary its objects” (c), “delete or vary any provision in its articles” (j) or “provide for any other matter or thing that is authorized by this Act to be set out in the articles or that could be the subject of a bylaw of the co-operative” (k).

The articles of incorporation for a housing co-op could specifically state that its object is to provide smoke-free accommodation and that the restrictions on the business that it may carry on are that it cannot allow smoking on its property. Likewise, there is nothing in the Co-operative Corporations Act and normally nothing in the articles of incorporation that restrict a co-operative’s bylaw from indicating that in operating its business it shall do so based on its housing units being non-smoking.

No, there is no legal requirement that members be grandfathered.

If a housing co-operative chose to grandfather members who were not in favour of a no-smoking policy, the grandfathering would very much depend upon the wording of the amendment to the articles of incorporation and the bylaws which would also determine the length of such grandfathering.

For example, members could be grandfathered for a particular length of time (i.e. 6 months or one year) or until they choose to withdraw their membership from the co-op and move out.

Similar to the enforcement of no-smoking policies in residential tenancies, it is recommended that at least one warning letter be delivered to the resident in question prior to initiating termination proceedings. Termination of a co-operative membership should only be left as a last resort, after other ways to solve the problem have been explored.

The Co-operative Corporations Act provides a process for terminating the membership and the occupancy rights of a co-operative member. Similar to a landlord terminating a tenancy and evicting a tenant, this would be the tool used by the co-operative to enforce its no-smoking policy.

Section 171.8 (2) of the Act sets out the procedure for terminating membership and occupancy rights of a member of a non-profit housing co-operative. They may be terminated on a ground set out in the bylaws provided such ground is not unreasonable or arbitrary (section 171.8 (2) 2). The termination is decided by a majority of the board of directors of the co-operative (section 171.8 (2) 1) and the member terminated can appeal the decision of the board to a meeting of members of the co-operative (section 171.8 (2) 9) and the appeal is decided by a majority vote of the members (section 171.8 (2) 14).

The co-operative may regain possession of a member unit by obtaining a writ of possession from the Superior Court of Justice (sections 171.12 and 171.13 of the Co-operative Corporations Act).

If a co-operative converts from a smoking permitted property to a no-smoking property by grandfathering members, the co-op would be well advised to make this situation as clear as possible to any new co-op members who will occupy member units.

The best protection for the co-operative is transparency so that no one becomes a member and occupies a unit without knowing of the conversion situation and the grandfathering terms.

However, even in the absence of such transparency, it is unlikely that a co-operative would be held liable for damages suffered by a member due to involuntary exposure to second-hand smoke infiltrating his or her unit. Nonetheless, a transparency strategy would add protection to the co-operative.

Some housing co-ops in Ontario were developed under provincial housing programs and follow operating rules in the Social Housing Reform Act, including those pertaining to waiting lists.

In the absence of a housing co-operative coming within the terms of the Social Housing Reform Act, 2000, there is no legal requirement for handling waiting lists to become a co-operative member and occupy a member unit.

Presumably the co-op would only accept people on the waiting list it maintained who would be eligible to become members, that is, who would commit to adhere to the no-smoking policy. Under section 60 (1) of the Co-operative Corporations Act membership in a housing co-operative is governed by the co-operative bylaws, subject to the Act and the articles of incorporation. A person must apply for membership and be approved by the co-op’s board of directors and must have “…complied fully with the bylaws governing admission of members” (section 61 (2) of the Act).

Laws that must be followed when looking at no-smoking policies for co-ops are listed below:

Ontario’s housing co-operatives are governed by the Co-operative Corporations Act. Members of co-operatives democratically elect their boards of directors as well as move and vote on by-laws, including those related to smoking, at members meetings (e.g. Annual General Meetings). Co-operatives can apply to the Landlord and Tenant Board to enforce their by-laws, which can include bans on smoking.

Members served with an eviction notice may appeal to have that decision overturned at a members’ meeting only if their co-operative’s by-laws allow it.

In Ontario, smoking tobacco and cannabis and vaping any substance is prohibited in the indoor 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, such as when they rent a bedroom in a house but share a kitchen and bathroom. 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 temporaryguest 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.

The Human Rights Code gives 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 made worse 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.

On the flip side, smoking is not identified in the Code as a ground for protection. In 2007 the Ontario Human Rights Commission (OHRC) published a report on rental housing and human rights, which 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.”  In 2009 the OHRC published Policy on Human Rights and Rental Housing. 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 to the parties to resolve how to accommodate the heavily addicted smokers and Cominco’s smoking ban remains in effect today.

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 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 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.

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.