Do the groundwork

If you are a housing co-op member suffering from second-hand smoke exposure in your home, you may want to consider collecting information about the source, extent, frequency and impact of the problem before approaching your neighbour or board of directors. Taking an informal approach at the beginning may result in a satisfactory resolution to the problem, and may be less expensive and less time consuming than initiating more formal measures, such as a lawsuit.

Document the source and extent of the problem

Consider using this sample resident log to track your efforts to address the problem.

• Identify how the smoke is entering your unit i.e. through your bedroom window, through your bathroom or kitchen fan or from the electrical outlets, etc.;
• Determine where the smoke is coming from i.e. neighbour’s balcony, inside neighbour’s unit, outside smoking area or some other area;
• Identify how often the smoke enters your unit on a daily or weekly basis. Do you smell the smoke all the time or at certain times of the day? List dates and times.
• Identify when the problem started. Did you start smelling the smoke as soon as you moved into your unit, or when a new resident moved in?

Document the health impacts on you and/or your family

• Document symptoms or illnesses caused by the smoke infiltrating your home. Symptoms could include asthma attacks, headaches, burning and watery eyes, chronic sore throats, bronchitis, ear infections and heart problems, to name just a few;
• Indicate if the smoke is worsening a pre-existing health problem such as asthma, allergies, heart disease, high blood pressure, fibromyalgia, cancer, etc.;
• Indicate whether the smoke seeping into your home is causing anxiety or fear due to the potential or actual health impacts on you or your family members;
• Indicate if you have an infant in the home. Babies who are exposed to second-hand smoke have a higher risk of dying from Sudden Infant Death Syndrome (SIDS).

Document interference with the normal use and enjoyment of your home

• Are you forced to stay out of certain rooms because of the smoke?
• Are you sealing up doors at night and unsealing in the morning to get out?
• Are you unable to open your windows or balcony door?
• Are you unable to use your balcony because of the smoke?
• Are you unable to use your fans or heating system?
• Have you been forced to leave your home on certain days or at specific times to avoid the smoke?

Collect supporting evidence

• Obtain a copy of the articles of incorporation, bylaws, resolutions as well as your occupancy agreement. There may be language already in place concerning nuisances and reasonable enjoyment of member units that will strengthen your case;
• Obtain written proof from neighbours, friends and family concerning the amount and frequency of smoke entering your home. The more people who can verify your complaint, the stronger your case;
• Obtain a letter from your physician to verify that exposure to second-hand smoke is making you or your family members sick, or aggravating an existing condition or illness;
• Inform yourself on the dangers of exposure to second-hand smoke.

Try to mitigate the impact

Consider taking steps to mitigate the problem yourself before taking more formal steps. This could include such actions as sealing up cracks and gaps, blocking vents or fans, negotiating with your neighbour who smokes and talking to your property manager about ventilation in the building. Here are some steps you might consider:

a. Block or reduce the smoke

• Seal up cracks and gaps around electrical outlets, ceiling and wall fixtures, telephone jacks, plumbing, etc.;
• Fill or patch cracks in walls and ceilings;
• Install door sweeps and weather stripping around windows;
• Close windows and doors;
• Seal windows/doors with shrinkable plastic sheeting or caulk;
• Block ventilation grilles.;
• Insulate the air spaces around plumbing pipes;
• Insulate and place covers over electrical outlets.

Visit the Canada Mortgage and Housing Corporation online for useful tips on Solving Odour Transfer Problems in Your Apartment.

Visit the US Indoor Environmental Engineering website for information on how to reduce second-hand exposure in multi-unit dwellings.

Note: It should be clarified that structural repairs or improving ventilation systems may reduce some of the smoke infiltrating your home, but will likely not totally eliminate the problem. The Centre for Energy and Environment in Minneapolis conducted an extensive study of air flow in multi-unit dwellings in 2004 and identified a number of measures to reduce smoke transfer between units. The findings show that while about one-half of the units treated had a reduction in contaminants of greater than 50%, close to one-third of the units treated had no reduction of contaminants at all.

b. Investigate the ventilation

It is important to note that while improved ventilation can remove the odour of tobacco smoke and the source of eye and throat irritation, no ventilation system is capable of addressing the health effects of exposure to the many toxic chemicals in second-hand smoke. There is no known safe level of exposure.

The Canada Mortgage and Housing Corporation states that most buildings built since the mid-1960s have corridor ventilation systems in place. These systems are designed to deliver outside air into corridors to maintain positive pressure. Air is continuously pushed under doors, thereby preventing odours from escaping individual units and leaking into the corridors and neighbouring units. Older buildings rely on air coming in through cracks and gaps for ventilation. In addition, many buildings have exhaust systems to ventilate the bathrooms and kitchens, with fans either right in individual units or located centrally elsewhere in the building.

• Ask  the property manager to check the corridor ventilation system to ensure that it is operating properly. Sometimes such systems operate intermittently on a timer, and it may be that the schedule needs to be adjusted to increase the amount of fresh air entering the building.
• Check to see if it is possible to restrict the amount of air exhausted through the ventilation system from units where there is smoking.
• If second-hand smoke is entering your unit from a bathroom or kitchen fan, try the tissue test. Turn on your kitchen or bathroom fan and hold a tissue to the grille. The fan should be able to hold the tissue firmly in place. If it doesn’t, or actually blows instead of sucks, talk to the property manager about having the unit cleaned, repaired or replaced.
• Another possible solution is to investigate having your unit pressurized to prevent air (and second-hand smoke) leaking in from other units by having a professional install a HEPA-filtered (High Efficiency Particulate Air) heat recovery ventilation system. The idea is to create positive indoor air pressure by using a fan to force fresh air into your unit, thus preventing smoke from entering. For this to work you will have to keep your windows closed and your windows and doors will need to be well sealed.
  • However, there are a couple of drawbacks to this option, the first being expense. Also, positive pressure may cause condensation problems depending on the climate where you live and the ventilation of your unit.
  • Before considering this solution, talk to the property manager to see if it is permitted. Many high-rise buildings have pressurization systems in the corridors, and pressuring your own unit may interfere with the ventilation system of your building. Then consult with a ventilation expert to ensure that the installation and operation of the system complies with the requirements of the building code.

Negotiate solutions

If you feel comfortable, consider talking to your neighbour who smokes. He or she might not realize that the smoke is a problem for you.

• Try to focus on concrete solutions such as asking the neighbour to smoke outside, to close doors or windows, or to seal cracks and gaps in their unit too.
  
  • Perhaps the smoke travels more easily from certain rooms, and the resident who smokes might consider smoking where the second-hand smoke is least likely to affect others.
  • Portable fans and air purifiers will not address the health hazards of exposure to second-hand smoke, but might buy some time while better solutions are explored.
• Seek support from other residents in the building. They might be experiencing second-hand smoke intrusions as well and may be willing to talk to the neighbour who smokes with you.

Bring the issue to the board of directors

Co-ops decide things democratically, either by the majority vote of the board or the members, depending on the issue. Before taking any action, be sure to read your co-op's bylaws to understand how decisions are made. Every housing co-operative in Ontario has its own unique bylaws or rules that determine how it is managed.

• Ask your co-op's board of directors to be added onto the agenda for the next board meeting. Alternatively, you could wait for the next annual general meeting.
• Present your situation in a calm and straightfoward manner. Show the board your log book, your letters of support, and tell them how the smoke is disrupting your life and affecting your health. Demonstrate that you have done all that you can, and now need their help.
  
  • If you have specific ideas on how the board can help to solve the problem, share them.
• You might consider mediation as a way to solve the problem.
• If, following your meeting with the board, you are still not satisfied, ask the board in writing to have the issue put on the agenda for the next members' meeting. If you are not convinced that the chair of the board is the right person to facilitate the meeting, request someone else handle that part of the meeting.

If your board of directors is not supportive, you can try to requistion the board to call a members' meeting.

• Section 79 (1) of the Act provides that 5% of the members of a co-operative may requisition the directors to call a general meeting of the members for any purpose that is connected with the affairs of the co-operative and that is not inconsistent with the Co-operative Corporations Act.
• If the directors do not call and hold a meeting within 30 days from the date of the deposit of the requisition, any of the requisitionists may call the meeting, which shall be held within 60 days from the date of the deposit of the requisition (section 78 (4)).
• Where a bylaw or resolution is passed at the general meeting of the members, it is as valid and effective as if it had been passed at a meeting of the directors duly called, constituted and held for that purpose, and if the resolution or bylaw is passed by at least two-thirds of the votes cast (one vote per member), it shall be conclusively deemed to be a special resolution or a bylaw, as the case may be, for the purposes of this Act (section 70 (6)).

Note: Keep all records of correspondence with the corporation or property manager concerning this issue. They may be helpful if you end up initiating legal proceedings.

Advocate for creating a no-smoking policy

• Meet with the board of directors and present your no-smoking policy idea.
• Ask for their assistance in conducting a survey to determine members' experiences with second-hand smoke intrusions and interest in a possible no-smoking policy for the co-op. Existing surveys demonstrate that the majority of people would prefer a smoke-free complex.
  
• With approval from the board of directors, form a smoke-free committee to work on the issue.
  • Educate your co-op's members about exposure to second-hand smoke and the realities of air transfer in buildings. A co-op newsletter is an excellent vehicle for getting your message out.
• Refer your co-op's board of directors to this website. The housing co-op section includes steps on how to go smoke-free, as well as legal information and market research.

Options of last resort

If your housing co-op refuses to act, or you are not satisfied with the solutions taken, here are a couple of last resort measures that you might want to consider. Before initiating formal procedures, including initiating a lawsuit, it is recommended that you seek legal advice.

a. Explore an injunction to prevent your neighbour from smoking in the building

• You will definitely need to seek legal advice on how to proceed

b. Apply to the Human Rights Tribunal of Ontario

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 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) and 17 (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."

and

"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 have a disabling health condition such as asthma, allergies, COPD or anything else that is being made worse by your involuntary exposure to second-hand smoke, you could file an application on the basis that the housing co-op corporation has not taken reasonable steps to prevent second-hand smoke from infiltrating your unit. You could argue that the corporation has a responsibility to act in order to accommodate your disability.

We are not currently aware of any such cases in Ontario, although in British Columbia we know of a couple of cases where tenants have filed human rights applications against social housing providers for failure to eliminate second-hand smoke or to provide smoke-free housing. One of the cases, which involved the Greater Vancouver Housing Authority, was settled before it went to a full hearing, and no further details are available. However, the case is important as the adjudicator denied the landlord's application to have the tenant's application dismissed, and determined that the tenant's application had merit which deserved a full hearing.

The second case involved thirteen tenants filing a discrimination complaint against Kiwanis Park Place in Crescent Beach for being exposed to other tenants' second-hand smoke. More...

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 our useful links section for a list of organizations that may assist you if you are considering this route.

Download an Applicant's Guide to the Human Rights Tribunal of Ontario.