SMOKE-FREE HOUSING ONTARIO http://www.smokefreehousingon.ca
Tenants: Legal Opinion

The information that follows comes from a legal opinion prepared by David H. Hill, C.M., Q.C of Perley-Robertson, Hill & McDougall.

It 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. 

As this section represents our interpretation of the legal opinion, and does not address all of the issues raised in the opinion, it should be used for informational purposes only.

Download the legal opinion.

Is it legal for a landlord to adopt a no-smoking policy for private rental units and balconies?

Yes. It is absolutely legal for landlords to adopt no-smoking policies. Neither the Residential Tenancies Act, 2006 nor the Social Housing Reform Act, 2000, or any other Ontario legislation prohibits a landlord from instituting a no-smoking policy that prohibits tenants or guests of tenants or anyone else from smoking inside a leased residential unit. Landlords have the right to impose additional obligations or restrictions on tenants beyond the standard lease agreement, as long as these requirements do not conflict with the Residential Tenancies Act, the Human Rights Code or any other federal law. Landlords have the right to protect their investment and designate all or part of a building as no-smoking, including individual units, balconies or the entire property.

However, by law, such a policy would only apply to new tenants signing new leases. Section 38 (1) of the Residential Tenancies Act, 2006 provides:

If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act.

In other words, landlords must ‘grandfather’ (exempt) existing tenants during the length of their tenancies, unless they consent in writing to the new policy.

In the case of a building gradually becoming smoke-free through attrition, how long do existing tenants have to be grandfathered?

Existing tenants who choose not to sign a new lease containing the no-smoking policy are grandfathered (exempted) for as long as they choose to live there. In other words, it is illegal for a landlord to give all tenants a notice period and then bring in a no-smoking policy that applies to everyone.

Can a landlord evict a tenant for breaching a no-smoking policy?

Yes, but smoking in violation of a no-smoking policy is not by itself considered a material breach of the lease. Section 62 of the Residential Tenancies Act, 2006 provides:

"A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex."

Section 63 also deals with damage, but permits a landlord to give a tenant a shorter notice period if the damage is deemed to be wilful. Section 64 can also be used:

"A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant."

Section 65 permits a landlord who resides in a building containing not more than three residential units to give a tenant notice of termination for the same reasons noted in section 64.

However, it is necessary for a landlord attempting to terminate a tenancy and evict a tenant on these terms to demonstrate that the breach "substantially interferes" with either the landlord's "lawful right, privilege or interest" or reasonable enjoyment of the landlord or another tenant.

Is a no-smoking policy discriminatory?

No. Neither the Canadian Charter of Rights and Freedoms nor the Ontario Human Rights Code explicitly protects smokers as a class. Smoking is not a human right.

Neither of these laws prevents government at any level or a private person (including a corporation) imposing restrictions on smokers as tenants prohibiting them from smoking within a rented apartment.

A no-smoking policy is not a no-smoker policy that prevents smokers from renting accommodation. Just as smokers step outside public places and workplaces for a cigarette, so too would they for a no-smoking residential building.

Could smoking be considered a disability?

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 tenants 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 others in the building.

The key issue is nicotine withdrawal. Even if in the future an adjudicator or judge ruled a tenant's smoking as a disability, the focus then becomes one of reasonable accommodation by the landlord 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 a judge were to rule that a smoking tenant was disabled, it does not mean that all smokers in Ontario 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.

How would waiting lists for social housing be handled with a no-smoking policy?

A social housing unit is treated somewhat differently under the Residential Tenancies Act, 2006 and is subject to the Social Housing Reform Act, 2000. Section 7 (1) of the RTA sets out a series of sections that do not apply to social housing, but none of these sections relate to the issue of smoking in multi-unit dwellings.

The Social Housing Reform Act, 2000 proposes to provide efficient and effective administration of housing programs. Pursuant to sections 4 (1) and (2) of the Act, the Minister of Municipal Affairs and Housing designates, by Regulation, service managers who manage the waiting lists for social housing (not the landlords). In many cases a municipality or municipal organization is designated as service manager.

Service managers must establish and administrate waiting lists for both rent-geared-to-income (RGI) units pursuant to section 68 of the Act and special needs units pursuant to section 74 of the Act. Those on the special needs list rank in priority to those on the RGI list. A centralized waiting list must be established by the service manager, in accordance with section 35 of Ontario Regulation 298-01 made pursuant to the Social Housing Reform Act, 2000. Additionally, a subsidiary list is maintained for every RGI housing project for households having indicated a preference for a particular housing project (section 36 (2) of Regulation 298-01). However, it is optional for those on the RGI waiting list to express a preference for a housing project and be placed on a subsidiary list.

Those who have priority for a unit are, first, those longest on the special needs list that match the size of the unit available for their requirements (section 45 (3.2) of Regulation 298-01), then those longest on the RGI list that match the size of the unit available for their requirements (section 41 (2) of Regulation 298-01).

If those on the special needs list refuse a unit when it is offered, they maintain their position on the special needs list (unless, for other reasons, they become ineligible or request to be removed from the special needs list). If those on the RGI list refuse a unit when it is offered, they maintain their position but if they have indicated a preference for a particular housing project, are on a subsidiary list and refuse a unit that matches the preference list three times they cease to be eligible for RGI housing units (section 39 (1) of Regulation 298-01).

If the social housing unit that becomes available is designated as no-smoking, it must be offered to those on the waiting list with the most priority whether or not they are smokers and, for those on the RGI list, regardless of an expressed preference. If a smoker with waiting list priority is offered and accepts a no-smoking unit, that smoker must adhere to the no-smoking requirements. If the smoker with waiting list priority is offered a no-smoking unit and refuses, the waiting list is maintained as required by Regulation 298-01.

It is, therefore, quite possible that a smoker with waiting list priority will be offered a no-smoking social housing unit. However, this does not mean that smoker, should he or she accept the no-smoking unit, can disregard the policy. Any refusal to adhere to a no-smoking policy can be dealt with as with any other tenant under the Residential Tenancies Act, 2006.