The articles of incorporation for a housing co-operative 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 inside individual units or on its property. The first directors of a housing co-op could also pass a no-smoking bylaw to establish it as a smoke-free environment from the outset.
There is demand for smoke-free accommodation in Ontario, and a no-smoking policy will help a housing co-op avoid the problems, costs, and fire risks of maintaining a building where smoking is permitted.
Moreover, the popularity of "green" construction is on the rise with more and more buildings becoming LEED- (Leadership in Energy and Environmental Design) certified. A 100% smoke-free environment is perhaps the easiest and least expensive way to improve the quality of indoor air in a building. Check out our success stories section to read about an example of a 100% smoke-free "green" condominium in British Columbia.
a. Consider the type and scope of a no-smoking policy
A no-smoking policy can include many variations, so it is important to clearly stipulate which areas will be designated as non-smoking. 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;
- On outdoor common areas such as patios, swimming pools, gardens, etc.;
- On the entire property up to the property line.
The option also exists 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 co-operative 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.
b. Consider potential legal challenges
Those opposed to smoke-free multi-unit dwellings sometimes claim that no-smoking policies 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 co-op members and occupying member units;
- 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.
This issue 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 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 housing co-op member who smokes is disabled, it does not mean that all members of that co-op who smoke, or all housing co-operative members in Ontario who smoke would also be recognized as 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.
c. Write the no-smoking policy
- See a sample no-smoking policy;
- Seek legal advice;
- Complete the required paperwork.
d. Promote your smoke-free housing co-op
- Emphasize the benefits of 100% clean, smoke-free air in any advertising;
- This is a unique amenity and will appeal to the vast majority of potential co-op members;
- Communicate the policy to relevant stakeholders, such as those who maintain waiting lists (if applicable);
- Post “no-smoking” signage in appropriate locations on the property. Contact your local public health unit for assistance;
- Contact us and share your good news!