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 buying or renting condominiums;
• No one is being forced to quit smoking; and besides,
• Smoking is not a protected right in Canada.

There are plenty of examples of ways that condominium corporations can limit or prohibit behaviour in private spaces that have much more mundane goals than protecting people's health, such as maintaining a consistent look to the front of a building by requiring certain types of window treatments or by banning clotheslines on balconies. 

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."

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 unit owner who smokes is disabled, it does not mean that all residents who smoke, or all condo owners 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 condominiums 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.

• Emphasize the benefits of 100% clean, smoke-free air in all your advertising;
  
  • This is a unique amenity and will appeal to the vast majority of potential condo buyers;
• 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!