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Conflict in the Air Second-hand Smoke Rulings Favour Compromise
May, 2007
By Robert G. Doumani and Patrick J. Harrington
Drifting smoke may be able to seep throughout multi-residential buildings, passing through open or poorly sealed windows and doors, ventilation systems, ceiling and floor cracks, and even electrical outlets and cable jacks. Air purifiers can dilute drifting smoke, but Health Canada advises that there is no known safe level of exposure to second-hand smoke.
Second-hand smoke can aggravate symptoms for people with allergies or asthma, and can cause eye, nose and throat irritations, headaches, dizziness, nausea or coughing and wheezing in otherwise healthy people, all of which can be exacerbated by living in close quarters in a multi-residential dwelling. Although every landlord has the right to declare an apartment building or condominium smoke-free, it is not equally clear that every tenant has the right to demand a smoke-free living space.
In 2005, the Smoke-Free Ontario Act received Royal Assent. Effective May 31, 2006, this Act replaced the former Tobacco Control Act, 1994, and imposed a prohibition on smoking in all enclosed public places and workplaces.
An enclosed public place is defined as the inside of any building or vehicle that is covered by a roof and to which the public is ordinarily invited or permitted access whether or not a fee is charged. Public places therefore include clubs, restaurants, places of entertainment and the common area of any building, but does not include private residential dwellings.
Enclosed workplaces capture smoking inside of any building or vehicle that is covered by a roof and in which employees work or frequent during the course of their employment. However, the definition of an enclosed workplace specifically excludes any building that is primarily a private dwelling.
LIMITED CONTROLS IN RESIDENTIAL BUILDINGS
The Act does control smoking in general common areas of condominiums, apartment buildings and university and college residences - including elevators, hallways, parking garages, party rooms, laundry facilities, lobbies and exercise areas. The proprietor of these common areas (likely the landlord acting through the superintendent or property manager) is charged with ensuring compliance, under penalty of fines ranging from $1,000 for a first offence to up to $5,000 for subsequent offences.
The Act also defers to any other Act, regulation or municipal by-law with provisions more restrictive of smoking. Presumably, this could leave the door open for municipalities to pass by-laws regulating smoking within multi-residential units. However, no municipality in Ontario has gone this far to date.
Under the Smoke-Free Ontario Act, no person can smoke or hold lighted tobacco in any place where private-home daycare is provided, whether or not children are present. This means that a resident operating a private-home daycare cannot smoke in his or her residence at any time, and this would apply equally to private-home daycares in multi-unit residential buildings.
Smoking in residential care facilities is limited to designated controlled smoking areas. A resident of a supportive housing residence linked to the Ministry of Health and Long-Term Care or the Ministry of Community and Social Services may not smoke in his or her own room, but must instead limit smoking to a smoking room. Similar smoking room options are provided to hotel operators, provided that the smoking room meets specific criteria listed in the Act.
The Act provides that home health care workers will be able to ask a person not to smoke in their presence. These workers are also at liberty to leave the home if the patient refuses to comply. While the legislative intent is to protect the worker from second hand smoke, the practical effect is a limitation on the patient's ability to smoke in his or her own home.
PROVISIONS IN THE RESIDENTIAL TENANCIES ACT
A landlord has the right to impose obligations or restrictions on tenants beyond the terms of a standard lease agreement, so long as such obligation or requirement does not conflict with federal or provincial laws. If a no-smoking clause is written into a lease, a breach of that prohibition and nothing more is not grounds for terminating the tenancy. A landlord may have the ability to seek penalties for non-compliance where such non-compliance falls within one of the express grounds for termination under the Residential Tenancies Act, 2006 (RTA).
Where a landlord can prove that the tenant's smoking has caused damage to the rental unit, section 62 of the RTA enables the landlord to bring an application to terminate the tenant for cause. This might include discoloured paint on walls or ceilings, cigarette burns on flooring or carpet, and/or fires caused by careless smoking.
While notice of such termination would be effective 20 days after notice is given, the tenant is given 7 days in which to repair or pay for the damage he or she has caused to the unit. Such repair or payment by the tenant voids the notice of termination (subsection 62(3)). Accordingly, there are two primary obstacles to evicting a smoking tenant on account of damage to the unit: (1) proving that the damage caused to the unit directly resulted from the tenant's smoking within the unit; and (2) the tenant's ability to void such notice by repairing or paying for the repair of such damage.
The precedents of two decisions at the Ontario Rental Housing Tribunal indicate that existing tenants who do not have smoke-free clauses in their leases have a prima facie right to smoke in their units. However, such rights are limited by the effects of such smoking on the reasonable enjoyment of adjacent tenants.
Where a tenant (or the landlord) can show that drifting smoke is substantially interfering with the reasonable enjoyment of the residential complex, a landlord can apply for relief under section 64 of the RTA. The Landlord and Tenant Board can order that reasonable steps be taken to address the problem.
This may include the use of filters or air purifiers, repairs to insulate the smoker's unit, or moving the smoker to another unit. Where the substantial interference cannot be solved by conventional means, the smoking tenant will likely be required to cease his or her smoking habits under penalty of future eviction.
Smoke-free provisions in leases are not enforceable by way of eviction unless the tenant's smoking either damages the unit or substantially interferes with the reasonable enjoyment of either another tenant's unit or the residential complex in general. The Board can take judicial notice of the fact that second-hand smoke is hazardous to a person's health, which may make an application on grounds of drifting smoke easier to maintain, but the Board likely will not be overly harsh toward an existing smoker whose tenancy predates the efforts of the landlord to create a smoke-free residential environment.
BALANCING RIGHTS
A Court may find that a ban on smoking within multi-residential units may be unfairly discriminatory toward people who can only afford to live in such units. It may also be an unlawful interference with the right to personal autonomy.
An argument could be made that such a limitation on autonomy is justifiable, given the dangers of second-hand smoke.
Whether such limitation is justifiable in the case of all multi-residential units (for instance, in units fitted with air purifying systems or self-contained HVAC systems) is highly debatable, particularly if hotels and other institutions are permitted to operate "smoking" guest rooms.
Providing tax and/or insurance incentives to encourage rental housing providers and condominium corporations to implement smoke-free environments might be another government policy option. Currently, some home insurance providers offer discounted rates to homeowners with smoke-free homes owing to the reduced risk of fire. Extending such discounts to owners of multi-residential buildings may provide the necessary financial incentive for landlords to get tough on smoking tenants.
A property tax break for smoke-free residential buildings could also benefit local governments through a reduction in the need for services (both health and emergency). As discussed above, municipalities are empowered under the Smoke-free Ontario Act to go beyond the Act's minimum requirements in an effort to reduce the harmful effects of smoking.
Going hand-in-hand with insurance and tax incentives for housing providers is a policy of rent discounts for tenants who do not smoke. The benefits of non-smoking tenants for landlords are obvious: lower risk of fire, less physical maintenance in the rental unit, increased marketability and lower risk of associated tenant complaints.
Landlords can ensure that new tenants refrain from smoking in their units by including smoke-free conditions in their leases. To get existing tenants to butt out, landlords may offer monthly rent discounts. However, two problems would arise: (1) policing the policy and (2) eroding the lawful rent.
If the goal is the elimination of smoking in all multi-residential buildings, such a movement should concentrate on preventing drifting smoke's impact on others rather than targeting the smoker's behaviour in his or her own home. This ensures a more balanced approach between the existing rights of smokers and the emerging rights of their neighbours to be free from such smoke.
The preceding is an excerpt from a paper presented in March 2007 to the National Forum on Drifting Second-hand Smoke in Multi-unit Dwellings. Robert G. Doumani is a partner with Aird & Berlis LLP and a member of the firm's Executive Committee and Municipal & Land Use Planning Group. Patrick J. Harrington is an associate with Aird & Berlis LLP's Municipal and Land Use Planning Group. For more information, see the web site at www.airdberlis.com.
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