Smoking in Multi-Residential Buildings

Robert G. Doumani

CFAA Rental Housing ConferenceJune 17, 2011

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Consider This

• Approximately two thirds of smoke from a cigarette is not inhaled by the smoker. Instead, it is left to drift.

• Drifting smoke can pass through open or poorly sealed windows and doors, ventilations systems, ceiling and floor cracks – even electrical outlets and cable jacks.

• 25 million Canadians now live in urban areas, increasingly in multi-residential buildings.

• Second-hand smoke can aggravate symptoms in people with allergies or asthma, and can cause eye, nose and throat irritations, headaches, dizziness, nausea, or coughing and wheezing in otherwise healthy people.

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Overview of Presentation

• Legislative overview, focusing on Ontario.

• Smoking as a protected freedom under the Charter.

• Landlord and Tenant Board cases.

• Options for future legislative reform.

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Smoking Legislation

• Smoke-Free Ontario Act replaced the Tobacco Control Act, 1994 on May 31, 2006.

• Imposes a prohibition on smoking in all enclosed public places and workplaces.

• “Public places” include clubs, restaurants, places of entertainment and the common area of any building, but does not include private residential dwellings.

• “Enclosed workplace” specifically excludes any building that is primarily a private dwelling.

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Smoking Legislation

• Ban on smoking in “common areas of buildings” prevents smoking in 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 tasked with ensuring compliance.

• Penalty includes fines ranging from $1000.00 for a first offence to up to $5000.00 for subsequent offences.

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Smoking Legislation

• Interesting to note that the Smoke-Free Ontario Act defers to any other Act, regulation or municipal by-law dealing with smoking where the provisions of such other Act, regulation or by-law are more restrictive of smoking.

• This leaves the door open for municipalities to pass more restrictive by-laws regulating smoking – potentially banning smoking within individual multi-residential units.

• Not aware of any municipality that has tried. Most had by-laws were more lax than the new Act.

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Smoking Legislation

• For example, in 2003 the Region of Peel (comprised of Brampton, Caledon and Mississauga) adopted a region-wide smoke-free by-law regulating the use of tobacco in public places, including building common areas.

• However, the definition of “common area” in the Region’s by-law specifically exempts dwelling units.

• This means the Region’s by-law regulates smoking up to and including a resident’s door step, but stops short of going into a resident’s unit.

• This pattern holds true for most of the by-laws the author has reviewed.

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Smoking Charter Challenge

Club Pro Adult Entertainment Inc. v. Ontario, [2006] O.J. No. 5027 (Ont. S.C.J.)

• Group of bar and club owners challenged that the Smoke-Free Ontario Act breached the following Charter rights:

• section 2(d) (freedom of association),

• section 7 (freedom of personal autonomy), and

• section 15(1) (freedom from discrimination).

• Case provides useful general principles for future cases concerning smoking, including in the landlord/tenant context.

• Motion judge’s rulings on the Charter issues were upheld at the Ontario Court of Appeal.

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Smoking Charter Challenge

Freedom of Association

• Argument: Act prevents smokers from freely associating with non-smokers in public places.

• Finding: Ability to smoke among other people in enclosed public spaces is not the kind of “associational activity” that attracts constitutional protection.

• Finding: It is not the person’s ability to associate that is targeted, but the underlying act of smoking.

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Smoking Charter Challenge

Freedom of Personal Autonomy

• Argument: Act prevents Ontarians from pursuing a lawful activity free from interference by the gov’t.

• Finding: Charter is not engaged every time a lawful activity is restricted. An individual’s dignity and independence must be negatively affected, which is not the case here.

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Smoking Charter Challenge

Freedom of Personal Autonomy

• Argument: Act is penal in character in that in contains a prohibition coupled with a penalty and the threat of prosecution.

• Finding: Act does not present the direct possibility of incarceration. The risk of imprisonment from non-payment of fines is too remote.

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Smoking Charter Challenge

Freedom of Personal Autonomy

• Argument: Act infringes the plaintiffs’ right to work and earn a livelihood. Plaintiffs operate clubs, bars and restaurants. An indoor smoking ban would drive away their customers.

• Finding: Plaintiffs’ collective interest in continuing to operate their businesses while allowing smoking is a purely economic interest that is not protected by the Charter.

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Smoking Charter Challenge

Freedom of Personal Autonomy

• Argument: Act imposes duties on owners and proprietors to use force to eject patrons who violate the Act.

• Finding: No provision of the Act requires a proprietor or an employee to use force to eject patrons that are smoking.

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Smoking Charter Challenge

Freedom of Personal Autonomy

• Argument: Smoking is not a lifestyle choice. Smoking is an addiction.

• Finding: Act does not impose an outright ban. There is nothing inherent in the act of smoking that requires a smoker to use tobacco in an enclosed public space or workplace.

• Finding: If a person is truly “addicted”, their addiction can be addressed in places not covered or exempted by the Act (i.e. go home or outside).

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Smoking Charter Challenge

Freedom from Discrimination

• Argument: Smoking is a temporary physical disability. Act therefore discriminates on the basis of a disability.

• Finding: Smokers are not a group that suffers from a pre-existing disadvantage, stereotype or prejudice.

• Finding: The nature of the interest affected by the Act is the preference of smokers to smoke in indoor public places. This is not the kind of interest that engages the dignity of citizens, be it personal, economic or otherwise.

• Note: Court did not pronounce that smokers do not suffer from a disability under the Human Rights Code.

• Potentially a still a live issue.

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Landlord and Tenant Board Cases

• Reviewed in detail in the paper. Summary of the relevant principles:

• A landlord can seek to impose smoking restrictions through the terms of a tenant’s lease.

• However, smoke-free provisions in leases are not independently enforceable by eviction unless the tenant’s smoking either damages the unit (RTA s. 62) or substantially interferes with reasonable enjoyment (RTA s. 64).

• “Damage” includes smell. If a non-smoking unit is made to smell like a smoking unit, the unit has been “damaged”.

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Landlord and Tenant Board Cases

• With respect to reasonable enjoyment, the key to maintaining a successful application against a smoking tenant (or against a landlord for failing to address a smoking tenant) is proving that drifting smoke is substantially interfering with the normal use of the residential space.

• Board does take judicial notice of the fact that second-hand smoke is hazardous to a person’s health, which may make an application on ground of drifting smoke easier to maintain.

• However, the Board will not be overly harsh toward an existing smoker whose tenancy pre-dates the efforts of the landlord to create a smoke-free residential environment. An approach that balances the rights of prior smokers versus new non-smokers is to be preferred.

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What’s Next?

• A legislative ban on smoking in multi-residential buildings would be difficult.

• Court in Club Pro took comfort in the fact that people could leave an enclose public space and go smoke in their own homes.

• An outright ban may be argued to be discriminatory towards smoking tenants that cannot afford to live elsewhere other than a multi-residential building.

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What’s Next?

• Could argue that a legislative ban on smoking in multi-residential buildings is justified, given the dangers of second-hand smoke.

• More likely that a prov. legislature would impose “smoke free” requirements on landlords, such as air filters, unit upgrades and designated smoking “rooms” or “floors”.

• Can’t ban it… but can try to contain it.

• Example: conditions imposed on hotels providing smoking rooms include separate ventilation and exhaust systems, smoke sealed floor-to-slab partitions, prohibition on soft fabric coverings, etc.

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What’s Next?

• A further possibility is providing tax and/or insurance incentives to encourage rental housing providers to adopt smoke-free policies.

• Home insurance providers offer discounted rates to smoke-free homes owing to the reduced risk of fire.

• Extending such discounts to owners of multi-residential buildings provides financial incentive for landlords to get tough on smoking.

• A property tax break for smoke-free residential buildings could also benefit local politics through a reduction in the need for services (both health and emergency).

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What’s Next?

• Landlords could also offer discounts to non-smoking tenants.

• Benefits of non-smoking tenants are obvious: lower risk of fire, less physical maintenance in the rental unit, increased marketability and lower risk of associated tenant complaints.

• New tenants - include smoke-free conditions in leases.

• Existing tenants – could offer monthly rent discounts; however, two problems arise: (1) policing the tenant and (2) eroding the lawful rent

Robert G. Doumani

Aird & Berlis LLPBrookfield Place, 181 Bay StreetSuite 1800, Box 754Toronto, Ontario M5J 2T9 CanadaT 416.83.1500F 416.863.1515E rdoumani@airdberlis.com

Smoking in Multi-Residential Buildings