The Human Rights Tribunal of Ontario aims to resolve discrimination claims filed under the Ontario Human Rights Code on matters such 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.
In a housing context, sections 2 (1), 11 (1) (a) and 17 (1) and (2) of the Human Rights Code deal with disability and accommodation and are of interest concerning smoking and no-smoking policies.
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 coming into 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 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.”
Second-hand smoke cases have been filed in Ontario where tenants and condo owners have filed human rights applications against social housing providers or condo corporations for failure to get rid of second-hand smoke or provide smoke-free housing.
You can search for Ontario human rights decisions on the website of the Canadian Legal Information Institute. Use key words “second-hand smoke” or “smoking” within the Ontario human rights section.
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. Read an Applicant’s Guide to the Human Rights Tribunal of Ontario.
If your building has a policy but it is not being followed
If you live in multi-unit housing that already has a no-smoking policy, but there are neighbours smoking in their neighbouring units you can follow these steps:
1. Engage Your Property Manager
Make sure your landlord, property manager, condo board or service manager knows that no-smoking policies are enforceable. If approached, they might be glad to work with you to resolve the issue.
2. Submit a Written Complaint
Write a letter of complaint to your landlord, property manager, condo board or service manager. Written complaints will be taken more seriously than verbal ones and will also provide a paper trail if you end up taking further legal action to ensure a safe and smoke-free living environment.
3. Limit Smoke Infiltration
Try to block the smoke entering your unit by sealing up cracks and gaps. Ask the landlord, property manager, condo board or service manager to check the ventilation system to make sure that it is operating properly.
4. Consider Seeking Medical Support
Getting a letter from your doctor or healthcare practitioner stating the importance of avoiding exposure to second-hand smoke. If you have a health condition made worse by exposure, your doctor or healthcare practitioner can emphasize your particular need for smoke-free air. Share this medical letter with your landlord, property manager, condo board or service manager.
5. Document the Issue
Carefully document the problem. Keep a log with dates and times detailing every time smoke enters your unit, where it enters, how it affects you, and everything that you do to try to address the problem. This is vital—without sufficient documentation and other evidence, it can be difficult to prove that the second-hand smoke infiltrating your residence is an “unreasonable” disturbance that has resulted in a loss of your reasonable enjoyment.
