3. Overview of the issue
Why a no-smoking
policy?
Legal issues: legislation,
rights, case law
Canadian smoke-free
housing trend
4. Rights vs. risks
Balancing rights of smokers & non-
smokers
What’s the risk of prohibiting smoking?
What’s the risk of doing nothing?
What constitutes discrimination?
What does reasonable
accommodation look like?
Second-hand smoke in multi-unit
dwellings is a complex issue
5. Smoking prevalence in Canada,
adults 15+, 1965-2011
(Data from Statistics Canada)
17%
6. “More than 92% of our guests prefer
nonsmoking rooms and public areas”
15. Lobbies, elevators, hallways, laundry rooms,
parking garages, etc.
Landlords/property managers must ensure
that tenants/condo owners are aware of the
law
Signage in common areas
Smoking prohibited in enclosed common
areas of multi-unit dwellings
16. Clause in the lease/
declaration, bylaw or rule
that defines where
smoking is prohibited:
◦ Units (some or all)
◦ Patios & balconies
◦ Doorways, operable
windows & air intakes
◦ Entire property
Above and beyond what is required
under provincial legislation
17. Does NOT prohibit smokers from
renting/buying accommodations
Does NOT evict current residents who
smoke
Does NOT force
residents to quit
smoking
DOES offer choice
in the
marketplace
18. Market demand
80% Ontario MUD residents would choose
smoke-free, all other things being equal (2010)
70% in Quebec (2012)
62% of BC MUD residents
would prefer to live in a
100% smoke-free building
(2013)
26. Residential Tenancies Act, 2006
Section 4: “… a provision in a tenancy
agreement that is inconsistent with this Act
or the regulations is void.”
RTA is silent on smoking
Details rights/responsibilities of landlords
and tenants of residential premises
Provides means of settling disputes —
Landlord and Tenant Board
27. Residential Tenancies Act, 2006
Section 38: “If a tenancy agreement for a
fixed term ends and 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 conditions that are in
the expired tenancy
agreement…”
28. Therefore existing tenants who do not want
to sign a new lease are “grandfathered”
(exempted)
New tenants sign new leases with the no-
smoking policy included
Buildings will gradually
transition to smoke-
free when the last
smoking units are
cleaned up and made
non-smoking
30. Social norms are
changing
Vast majority of
residents will simply
follow the rules
Enforcement of no-
smoking policies
is mostly complaint-
driven
31. Residential Tenancies Act, 2006
Section 37: “A tenancy may be terminated
only in accordance with this Act.”
Breach of a no-smoking policy is not
considered “material”
Enforcement must be based on:
◦ Breach of reasonable enjoyment
◦ Substantial interference with another
lawful right, interest or privilege of the
landlord
◦ Damage – willful or negligent
◦ Safety issues
34. What sort of evidence is needed?
Collect formal complaints about the
source, extent, frequency and impact
of the problem
◦ With specific dates and times
◦ Corroborate complaints
between tenants
Where possible,
document the damage
35. Ontario Landlord & Tenant Board
Cases from LTB posted online:
◦ Landlord applications (with a policy)
◦ Landlord applications (without a policy)
◦ Tenant applications
www.smokefreehousingon.ca/sfho/
landlords-case-law-summaries.html
Also: Canadian Legal Information Institute
(CanLII) excellent source of case law
36. Failure to pay rent
Safety issues — tampering with smoke
detectors
Noise violations with police visits
Rudeness & violence
Irresponsible pet ownership, etc.
Smoking in violation of a no-smoking
policy often involves other issues…
39. 1. Via the declaration
New builds 100%
smoke-free from outset
◦ Developer includes
policy in declaration
◦ i.e. Domicile
Developments in
Ottawa
Existing condos require
80% support
◦ i.e. Lakeview Condos,
Kenora & Heritage Way
Condos, Lindsay
40. 2. Via a bylaw
Section 56: Bylaws. The board may, by
resolution, make, amend or repeal bylaws,
not contrary to this Act or… declaration,
(j) to govern the maintenance of the units
and common elements;
(l) to govern the management of the
property
◦ Requires approval by majority of owners
41. 3. Via a rule
Section 58: Rules. The board may make,
amend or repeal rules respecting the use of
common elements and units to
(a) promote the safety, security or welfare of
the owners and of the property and assets…
(b) prevent unreasonable interference with
the use and enjoyment of the common
elements, the units or the assets…
42. Compliance and enforcement
Section 17(3): The corporation has a duty to
take all reasonable steps to ensure that the
owners… comply with this Act, the
declaration, the bylaws and the rules.”
Section 119(1): “… an owner, an occupier of a
unit… shall comply with this Act, the
declaration, the bylaws and the rules.”
43. Section 117: Dangerous Activities
“No person shall permit a condition to exist
or carry on an activity in a unit or in the
common elements if the condition or the
activity is likely to damage the property or
cause injury to
an individual.”
Condominium Act, 1998
44. Handling disputes
The law provides a remedy:
Section 132(1) requires (a) mediation & (b)
arbitration
section 134(1) "an owner, an occupier of a
proposed unit, a corporation, a declarant... of
a unit may make an application to the
Superior Court of Justice for an order
enforcing compliance with any provision of
the Act, the declaration, the bylaws, the
rules..."
45. Interim injunction granted prohibiting the
residents of a unit in a Toronto condo from
smoking cigars on the condo property
Granted in context of s. 117, & condo’s
general nuisance rule
“irreparable harm to the health of other
residents if not granted”
York Condo Corp No. 529 vs. Prupas,
Prupas & Burkart (2013), Ontario Superior
Court of Justice
46. Human Rights Codes/Acts
Provide protection from discrimination on
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
Everyone has the right to equal treatment in
accommodation …
47. Policy on Human Rights and Rental Housing, 2009
Ontario Human Rights Commission
48. No smoking policy ≠ no smokers
Addiction ≠ disability
◦ Addiction to nicotine can be satisfied in a
number of ways that don’t pollute the air
There is no
“right to smoke”
enshrined in
Canadian law
49. Discrimination cuts both ways:
Emerging trend: residents
of multi-unit dwellings with
chronic health conditions
are starting to cite
discrimination based
on exposure to
second-hand smoke
50.
51. For landlords/property managers:
Legal to have a lease/declaration, bylaw
or rule that prohibits smoking
No-smoking policy is not discriminatory
Right to protect investment & interests
For tenants/condo owners:
Right to reasonable enjoyment or to be
free from nuisance
Human rights
