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BC Laws Impacting Second-hand Smoke
Various laws impact the landlord and tenant relationship in BC. This section provides a brief description of the laws and policies that regulate smoking in apartments and rented homes in BC, including:
In most jurisdictions across Canada, including British Columbia, smoking is banned in all indoor public places and workplaces, including restaurants and bars. (The smoking ban in workplaces also applies to apartment units when workers are painting or conducting renovations). While there are no provincial laws that control smoking in private residences of multi-unit dwellings, BC recently enacted legislation to ban smoking in common areas and entrances of apartments and condominiums.
Under the Tobacco and Vapour Products Control Act, smoking is banned in certain places to which the public is ordinarily invited or permitted access, including:
- Common areas of apartment buildings, condominiums and dormitories, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and
- Within 6 metres (buffer zones) of public entranceways to apartment buildings, open windows and air intakes.
Note: This legislation does not apply to individual units or balconies in apartments or condominiums. It specifically avoids any attempt to regulate smoking in private residences.Read more about new BC tobacco laws.
Note: You may live in a community/municipality that has greater restrictions on smoke/vape use. If your community has such a bylaw, it takes precedence over the provincial requirement. Whichever requirement is more restrictive is the requirement you must follow.
There are three situations where current bans on smoking will not apply:
1) Residents or persons in care of facilities licensed or registered under the Community Care and Assisted Living Act, and 2) patients in extended care facilities or private hospitals (refer to Section 1 and Part 2 of the Hospital Act). They will be able to smoke in designated smoking rooms if permitted in the facility, but staff and visitors will not be able to smoke there. 3) Hotel rooms will also be exempt from this ban, but not hotel common areas.
Landlords are responsible for enforcing the smoking ban in common areas and entrances of apartment buildings.
If the Landlord is not able to enforce the legislation, he or she should contact their local Health Authority, and ask for a representative in the tobacco control area. Tobacco Enforcement Officers through the various health authorities are charged with the day-to-day enforcement of BC tobacco control legislation.
Where municipal bylaws are stricter than provincial legislation, unresolved complaints should be made to the municipal bylaw enforcement department.
Municipal governments have the authority to ban or restrict smoking in public places within their geographic limits and to create smoking bylaws that exceed BC smoke-free regulations. Many have.
With regard to multi-unit dwellings, some municipalities have enacted stronger buffer zone requirements than the province, including Vancouver, Surrey, Richmond and the Capital Regional District. Also, many BC municipalities and health authorities have more stringent restrictions in place for care facilities, and those restrictions would apply. Contact your local municipality to find out more.
It should also be noted that municipalities in BC could pass bylaws regulating smoking in apartment and condominiums, though none have done so to date. The City of St. John’s in Newfoundland and Labrador recently adopted new non-smoking rules for its non-profit housing sector. The rule means that tenants who sign tenancy agreements with the City from now on will have to agree not to smoke inside their units. The rules do not apply to existing tenants, who may continue to smoke in their units until they vacate the premises.
Residential tenancy relationships in BC are governed by the Residential Tenancy Act. The Act does not contain any specific provisions relating to smoking or second-hand smoke. However, the Act does allow a landlord to include a no-smoking clause in all new tenancy agreements to ban smoking in all units, balconies and the entire residential property. It is perfectly legal.
If a Tenancy Agreement does not include a no-smoking clause, tenants are allowed to smoke in their units. However, tenants do not have unfettered rights to smoke. According to Section 28 of the Act, tenants are entitled to quiet enjoyment, which includes the right to be free from unreasonable disturbances. If other tenants complain of unreasonable disturbances due to second-hand smoke infiltrating their units, a landlord has a responsibility to take steps to address the problem. (See Quiet Enjoyment)
While the law does not specifically mention second-hand smoke as grounds for a breach of quiet enjoyment, there is case law to support the argument that smoke that is causing a significant interference can be considered grounds for a loss of quiet enjoyment. (See case law examples)
For more information consult the Residential Tenancy Branch Guide for landlord and tenants in BC or the Residential Tenancy Act.
The Human Rights Code is a BC statute that protects the public against various prohibited forms of discrimination, including discrimination based on a disability. In a housing context, the Human Rights Code contains two principle provisions of interest concerning smoking and no-smoking policies.
These provisions appear in the following Sections of the Human Rights Code:
8 (1) Discrimination in accommodation, service and facility; and
10 (1) Discrimination in tenancy premises
It is possible that a tenant could apply to the Human rights Tribunal on the basis that the landlord did not take reasonable steps to resolve a problem of second-hand smoke infiltrating the tenant’s unit from a neighbouring unit. A tenant who suffers from a disability that is exacerbated by second-hand smoke, such as asthma or allergies, could take the position that the landlord has a responsibility to limit or ban smoking in order to accommodate the tenant’s disability. To date there have been no human rights cases that have issued a decision on whether sensitivity to second-hand smoke constitutes a disability.
On the flip side, smoking is not identified in the Code as a ground for protection.
This issue of smoking as a disability 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.
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.
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the
Constitution of Canada. It forms the first part of the Constitution Act, 1982, and is intended to
protect certain political and civil rights of people in Canada from the policies and actions of all levels of government. Examples of such rights and freedoms include:
- The right to life, liberty and security (section 7);
- The right to not be subjected to any cruel and unusual treatment or punishment (section 12);
- The right to equality before and under the law (section 15);
- Freedom of thought, belief, opinion and expression, including freedom of religion (section 2a).
The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), not to private activity such as what is contained in a landlord's lease. Contrary to the claims of various smokers' rights groups, the Charter does not provide protection against discrimination as a smoker.
The rights and freedoms listed above were chosen as examples because various Canadian smoke-free laws and policies have been challenged under these sections of the Charter. Judges presiding over these cases have consistently ruled that the Charter does not recognize smokers as a group suffering social, political, or legal disadvantage in our society. Under this legislation, smoking is not considered a physical disability, and this has been demonstrated in a handful of cases.
For more information, view this document created by the Non-Smokers' Rights Association.