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The following are highlights of the legal opinion we commissioned to provide easy reference for landlords and tenants who are dealing with second-hand smoke issues.
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.
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A Legal Opinion: Highlights
Yes. It is perfectly legal for landlords to make their buildings smoke-free. Landlords have the right to designate all or part of a building as smoke-free, including individual units, balconies and the entire property. While all new tenancy agreements can include a ‘no smoking’ clause, landlords must ‘grandfather’ (exempt) existing tenants during the length of their tenancy, or unless they consent in writing to the new policy.
Suggested legal wording for a no-smoking clause in tenancy agreements in BC:
"It is a material term of this tenancy agreement that smoking of any combustible material in the rental unit or on the residential property is prohibited."
In 2006 one of the largest landlords in Western Canada, Globe General Agencies, began phasing in ‘no-smoking’ policies in all new tenancies for their 60 buildings in Manitoba. A tenant subsequently appealed this policy to the Manitoba Residential Tenancy Branch, and the Tribunal upheld the policy. They found that Globe General Agency’s province-wide non-smoking policy was reasonable and legal.
It should be noted that while existing tenants must be exempted from a no-smoking policy, the ability to smoke is not absolute for the grandfathered tenants. If it can be shown that the second-hand smoke from grandfathered units is infiltrating neighbouring units on a frequent and on-going basis, and substantially interfering with their quiet enjoyment, then landlords have a responsibility to remedy the situation. (See Tenant rights)
Effective March 31, 2008, the Tobacco Control Act in British Columbia was amended to introduce a province-wide ban on smoking in public places, including:
- Common areas of apartment buildings, condominiums and dormitories, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and
- Within 3 metres (buffer zones) of public entranceways to apartment buildings, open windows and air intakes that open into these common areas.
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.
Additionally, municipalities have the authority to pass smoke-free bylaws that exceed the new provincial smoke-free laws and many have done so. For instance, Vancouver, Surrey and Richmond have enacted stricter buffer zone requirements than the province. Contact your municipality to find out more.
No. A landlord in British Columbia cannot require that a pre-existing tenant comply with a no-smoking ban where the existing tenancy agreement does not contain a no-smoking clause. Banning smoking under these circumstances would be considered a material change to the existing tenancy agreement, and thus cannot be done unless the tenant agrees.
If the tenant is in agreement with the no-smoking policy however, pursuant to s.14 (2) of the Residential Tenancy Act, “a tenancy agreement may be amended to add, remove or change a term, other than a standard term, only if both the landlord and tenant agree to the amendment.” It should be noted that any change to the tenancy agreement must be agreed to in writing and signed by both the landlord and the tenant.
No. Due to the strict wording of s.14(2) of the Residential Tenancy Act, a landlord cannot require pre-existing tenants to comply with no-smoking policies in their rental unit, even if the landlord provides a reasonable notice period for implementing the policy.
Landlords have the ability to set policies or make restrictions to protect the health and safety of their residents, and protect their property, so long as the policy does not conflict with federal or provincial laws. Adopting a no-smoking policy is similar to adopting other policies, such as a 'no pets' or 'no barbeques' policy
Yes, in certain circumstances, second-hand smoke can constitute a breach of quiet enjoyment. The right of quiet enjoyment is part of statutory and common law in British Columbia, and is an implied part of every tenancy. All tenants are entitled to quiet enjoyment, including freedom from unreasonable disturbance from other tenants. In buildings where smoking is allowed, landlords should be aware that the ability to smoke is not absolute. If tenants can show that second-hand smoke is infiltrating their home from a neighbouring unit or balcony on a frequent and on-going basis, and substantially interfering with their quiet enjoyment, then landlords have a responsibility to remedy the situation.
A landlord who is notified of a breach of quiet enjoyment due to second-hand smoke must take reasonable steps to ensure that the breach does not continue. Reasonable steps will vary with each case, and can include measures such as: providing alternate accommodation; and evicting the smoking tenant. Based on previous cases before the BC Residential Tenancy Branch, the evidence must indicate that the smoke is severe enough to cause an unreasonable disturbance, and is not a mere temporary discomfort or inconvenience. This is especially important if a landlord is seeking to evict a smoking tenant for cause.
Landlords should be aware, that where a tenant can show that the landlord has failed to take reasonable steps to address an ongoing problem of second-hand smoke travelling between units, such tenant may apply to the Residential Tenancy Branch for compensation. (See Last Resort Remedies)
Yes. A landlord can evict a tenant for cause if: the tenant breaches a no-smoking policy; the landlord can show that the tenant has broken a material term of the tenancy agreement (the no-smoking policy); and the tenant failed to comply after receiving written notice of the breach.
In certain cases, sensitivity to second-hand smoke (including medical conditions such as asthma, allergies or respiratory illness) may constitute a disability pursuant to the Human Rights Code (the “Code”) in a housing context. While the term ‘disability’ is not defined in the Code, Courts, Tribunals and Arbitrators have adopted a broad approach to what constitutes a physical disability under the Code.
To date there have been no human rights cases that have issued a decision on whether sensitivity to second-hand smoke constitutes a disability. However a case considering the issue of whether sensitivity to second-hand smoke constitutes a disability in a non-profit housing context is currently before the BC Human Rights Tribunal.
This issue has been considered numerous 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 BC Labour Relations Board decision in an employment context. Cominco had banned smoking on the plant site, and while the Board found that heavily addicted smokers were disabled, it also recognized that the employer’s no-smoking policy was reasonable and 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; Cominco's smoking ban remains in effect today.
It is emphasized that this decision applied to an employment situation. In a housing situation, it is highly likely that a no-smoking policy would be found to be justified to protect the health of other tenants.