Do your homework

• Collect as much information as possible about how the second-hand smoke is infiltrating units in the building, the number of members experiencing similar problems and the impact on the health of members. (See do the groundwork.)
• Inform yourself about the dangers of exposure to second-hand smoke and the benefits of going smoke-free;
• Review the legal section of this website to learn about the legalities of no-smoking policies for housing co-operatives;
• Review our survey section which contains information confirming that smoke infiltration is a problem for approximately one-third of Ontarians living in multi-unit dwellings, and that there is strong support for smoke-free multi-unit housing in this province. Plus, the vast majority of people don’t smoke, and no-smoking policies for Canadian households are already a social norm.
  

Share information and seek support

• Talk to your neighbours to identify support for a no-smoking policy;
• Talk to your board of directors to raise awareness and to seek support;
• Consider asking the board for its support in conducting a survey of members to determine whether others have similar problems with smoke migration. A survey will help to gauge support for a possible no-smoking policy, as well as to help identify the extent of prohibition that would be supported by a majority of members;
• With the approval of the board of directors, form a committee to study and work on the issue;
• If the co-op has a newsletter, use it to share information about exposure to second-hand smoke, how it can travel between units and the benefits of a no-smoking bylaw;
• Attend meetings and propose the idea of a no-smoking bylaw for the co-op. This is a good opportunity to present the information collected on the benefits of and support for no-smoking policies.
• If your board is not supportive, you can try to requistion the board to call a members' meeting (check first in your co-op's bylaws for any information related to requisitioning meetings):
  • Section 79 (1) of the Co-operative Corporations 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 board of directors concerning this issue. They may be helpful if you end up initiating legal proceedings.

Decide on the scope of the bylaw

A no-smoking bylaw can include many variations, so it is important to clearly stipulate which areas will be designated as non-smoking. Ideally, survey results will help to guide the scope of the bylaw. Examples include:

• In private units only;
• In private units including private use balconies or patios;
• Within a certain distance (i.e. 9 m) from doorways, operable windows and air intakes;
• Outdoor common areas such as patios, swimming pools, gardens, etc.;
• On the entire property up to the property line.

You also have the choice to provide a designated outdoor smoking area if the size of the property allows it. Ideally, such an area would have a roof, somewhere to sit, somewhere to dispose of cigarette butts safely, and would be situated well away from outdoor common areas like pathways, patios, etc. In choosing the appropriate policy for the complex, it is important to keep in mind the nature and layout of the complex, and ensure the policy is connected to protecting the health of the co-op's members.

Regardless of the scope of the policy chosen, it must comply with relevant legislation including the Co-operative Corporations Act and the Ontario Human Rights Code.

Check out our sample no-smoking policy in the tools section.

Consider "grandfathering" issues

In Ontario there is no legal requirement for a housing co-operative to grandfather (exempt) current members who are not supportive of a no-smoking policy. 

A grandfather provision could be for a specified length of time (i.e. smoking will continue to be permitted for 6 months or one year), or for the duration of co-op membership the occupation of the unit.

If there are no members in the building who smoke, there may not be much opposition to a complete prohibition without a grandfather clause. On the other hand, there may be co-op members in your building who would be in favour of a no-smoking policy only if it included a grandfather provision. It may be quite difficult to get a no-smoking bylaw passed if the policy is inflexible and offers no adjustment period for people who smoke.  At the same time, a policy that grandfathers members indefinitely will likely offer no relief to those members who are currently suffering from involuntary second-hand smoke exposure.

Consider potential legal challenges

Those opposed to no-smoking policies for multi-unit dwellings sometimes claim that they are discriminatory and abuse human rights. It is critically important for people to understand that:

• A smoke-free environment is not a smoker-free environment, and smokers are not prevented from becoming housing co-op members and living in housing co-ops; 
• No one is being forced to quit smoking; and besides,
• Smoking is not a protected right in Canada.

In 2007 the Ontario Human Rights Commission held a series of public hearings to examine the issue of human rights and rental housing. It subsequently published a report entitled Right at home: Report on the consultation on human rights and rental housing in Ontario. On the issue of smoking, the report 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."

Further, 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 indentified 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.

The 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 because they could possibly lose their jobs because of it, 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 back to the parties to resolve how to accommodate the heavily addicted smokers and Cominco's smoking ban remains in effect today. More on Cominco...

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 to have someone 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 regardless of the health or well-being of their neighbours.

With regard to smoking as a disability, the key issue is nicotine withdrawal. Even if in the future an adjudicator or judge ruled someone's smoking as a disability, the focus then becomes one of reasonable accommodation by the corporation 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 very individual. If an adjudicator were to rule that a unit owner who smokes is disabled, it does not mean that all residents in the same building who smoke, or all condo owners in Ontario who smoke would also be recognized as being disabled.

Download the Ontario Human Rights Code.

Download the Guide to Your Rights and Responsibilities Under the Human Rights Code.

Download more information on smoking and human rights case law.

However, the concept of no-smoking policies for housing co-ops is new and there is not a lot of specific case law to guide us on this issue. See our legal opinion section for more information.

Promote your no-smoking policy

• Post “no-smoking” signage in appropriate locations on the property. Contact your local public health unit for assistance;
• If your housing co-op has a newsletter or website, share information about the new policy and about second-hand smoke;
• Contact us and share your good news.