Smoking and the Human Rights Code

From a human rights perspective, smoking in apartment buildings can be very challenging.

Ideally, the fact that a resident smokes in his/her unit should not have any bearing on the health and quality of life of another resident. But it does. Buildings and apartments leak, ventilation systems don’t work as well as they should, and second-hand smoke regularly moves from one apartment to another. CERA has many clients with asthma, environmental sensitivities and other conditions who are being made ill because of smoke coming from other apartments.

Where a resident has a health condition that is being made worse by second-hand smoke, landlords and/or property managers will have to take steps address the problem. These can include ensuring that corridors are properly pressurized so that smell and fumes from apartments do not enter hallways, sealing any openings in the resident’s unit (such as openings from plumbing, electrical outlets, fans, etc.), and ensuring that kitchen and bathroom exhaust fans are working properly. Unfortunately, this is often not enough.

If steps to eliminate the transfer of second-hand smoke fail, can a landlord request that the resident stop smoking in his/her unit? What are the smoker’s rights?

In all likelihood, smokers’ rights are protected to some degree under the Human Rights Code. Strong arguments can be made that addiction to nicotine is a disability protected by the Code and, as the Ontario Human Rights Commission states in its Policy on Human Rights in Rental Housing, some people smoke to control the symptoms of other medical conditions. The Commission’s policy also notes that people with mental illness are disproportionately likely to be smokers.

However, even if smoking is considered a disability and associated with other Code-protected characteristics, such as mental illness, landlords are only obligated to accommodate smokers if it is safe to do so. If a resident who is smoking is making other tenants ill, the landlord could argue it would be an unreasonable health risk to permit the resident to continue smoking in his/her unit (assuming the landlord has already taken appropriate steps to minimize the transfer of second-hand smoke between units).

What about smoke-free apartment buildings? This is more problematic. In our view, an all-out smoking ban – which could significantly limit the housing options of people with this addiction – would have serious human rights implications. And unlike the example above, it would be difficult for a landlord to demonstrate that it is an unreasonable health or safety risk to permit residents to smoke anywhere in the building.

Is there a way to balance the rights of smoking and non-smoking tenants other than on an individual, case-by-case basis? One option worth considering would be to have a separately ventilated common-room for people who smoke. This could address the problem of second-hand smoke migrating from unit to unit, while maintaining the housing options of individuals who smoke.

Balancing the sometimes competing rights of individuals can be challenging – but it’s not impossible.

Further Reading:

  • Consideration must be given to the difference between “smoke” from cigarettes in such a concentration to be considered harmful to others, and simply “odour” of cigarettes. In many cases this is not being differentiated. Just because the odour of cigarettes can be detected does not mean that a concentration of second-hand smoke exists at levels that can be harmful.

  • I am slowly becoming debilitated by my neighbor smoking on his patio constantly from 14 hours plus per day. It is coming through my living room and bedroom windows. I suffer from chronic asthma, radiation fibrosis which has left me with 30% reduction in breathing capacity and a history of pulmony embolisms.
    Since he moved in approximately 4 months ago, I know that my breathing has become more impaired, at times during the day, I cannot speak, or have difficulty doing so. I have ear aches, sneezing and a tightness in the chest, as well as pain.
    I would like to know how to go about solving this problem legally and with support as the neighbor refuses to smoke inside his own apartment and our management will not take me seriously unless I have legal or some form of support.
    Thank you
    Deborah Draper

  • hi i leave in an apartment and i smoke but not 24/7 what i mean is am not a regular smoker but what happens i have been harassed by my landlord n even been called names but i don’t understand why she has to pick on me only coz my neighbors are smokers to but the manager try’s to show me that she is superior or she can do anything she wants to me …am so raged about this please if there is any justice @ all please help am not the only colored person who have been treated like this by this manager there are others as well who can come up forward too …my question is wt should i do where should i go can you investigate this woman please ….we feel we no longer in the 20th century any more coz discrimination is happening openly with this manager…help asap