Many landlords tell us that they would love to be able to implement a no-smoking policy, but don't want to include anything in the lease that they can't enforce. Others are under the impression that no-smoking policies are illegal or discriminatory. The good news is that no-smoking policies are legal, non-discriminatory AND enforceable.
This section aims to simplify and clarify the issue by presenting information on:
- the laws that have a bearing on the problem of second-hand smoke infiltration in multi-unit dwellings in Ontario;
- a legal opinion on the prevention of smoking in multi-unit dwellings in Ontario that was commissioned by the former Ontario Tobacco-free Network, a provincial interagency network consisting of the Canadian Cancer Society, Ontario Division, the Heart and Stroke Foundation of Ontario and the Lung Association, with input from the Non-Smokers' Rights Association; and
- relevant case law from the Ontario Landlord and Tenant Board.
Landlords and tenants who cannot resolve their differences amicably can file applications for adjudication at the Ontario Landlord and Tenant Board.
The Board is a quasi-judicial dispute resolution mechanism with exclusive authority to rule on residential tenancy matters as set out under the Residential Tenancies Act, 2006. Adjudicators are appointed. Although adjudicators prefer to be consistent, their decisions are not bound by precedent and do not necessarily reflect official Board positions. Decisions are made using the "balance of probabilities" standard of proof, which essentially comes down to a question of credibility--adjudicators must decide whose side of the story is more likely to be truthful.
Relatively uncommon just 5 years ago, it appears that Ontario landlords are increasingly willing to take their second-hand smoke issues to the Board for adjudication. We have a modest collection of such decisions, including some recent applications involving landlords successfully enforcing their no-smoking policies.