you can provide smoke-free · pippa beck non-smokers’ rights association dec. 5, 2013 ·pm expo...

Pippa Beck Non-Smokers’ Rights

Association

Dec. 5, 2013 ·PM Expo 2013

Metro Toronto Convention Centre

You CAN Provide

Smoke-Free Rental Housing

Tobacco control Municipal

Provincial

Federal

International

www.nsra-adnf.ca

Overview of the issue

Why a no-smoking policy?

Legal issues: legislation, rights, case law

Canadian smoke-free housing trend

Rights vs. risks

Balancing rights of smokers & non-smokers

What’s the risk of prohibiting smoking? What’s the risk of doing nothing? What constitutes discrimination? What does reasonable

accommodation look like?

Second-hand smoke in multi-unit dwellings is a complex issue

Smoking prevalence in Canada, adults 15+, 1965-2011

(Data from Statistics Canada)

17%

“More than 92% of our guests prefer nonsmoking rooms and public areas”

Three-quarters of all Canadian households do not allow smoking indoors

7,000 chemicals

◦ 250 regulated toxins, 60+ carcinogens

Particulate matter (PM), organic & inorganic gases

Heterogeneous & dynamic mixture

Persistent in indoor environment

Physical/chemical properties of SHS

Short-term

Irritates eyes, nose, throat, respiratory system

Causes headache, dizziness, nausea

Exacerbates pre- existing conditions:

◦ Angina

◦ Asthma

◦ Emphysema

Long-term: ~ 800 deaths/year

(conservative est.)

Heart disease (25%-30% ↑ risk)

Lung cancer (20%-30% ↑ risk)

Breast cancer (60% - 70% ↑ risk)

Nasal sinus cancer (20% - 30% ↑ risk)

There is NO

safe level of exposure

How does air get from one unit to another?

Any way it can!

~1/3 – 1/2 of MUD residents report regular SHS exposure from neighbouring units

Public opinion surveys

Ventilation

Ventilation does not protect health

◦ But it can reduce irritation from SHS

Lobbies, elevators, hallways, laundry rooms, parking garages, etc.

Landlords/property managers must ensure that tenants/condo owners are aware of the law

Signage in common areas

Smoking prohibited in enclosed common areas of multi-unit dwellings

Clause in the lease/ declaration, bylaw or rule that defines where smoking is prohibited:

◦ Units (some or all)

◦ Patios & balconies

◦ Doorways, operable windows & air intakes

◦ Entire property

Above and beyond what is required under provincial legislation

Does NOT prohibit smokers from renting/buying accommodations

Does NOT evict current residents who smoke

Does NOT force residents to quit smoking

DOES offer choice in the marketplace

Market demand 80% Ontario MUD residents would choose

smoke-free, all other things being equal (2010)

70% in Quebec (2012)

62% of BC MUD residents would prefer to live in a 100% smoke-free building (2013)

Market demand

Reduced smoke residue on walls, ceilings, appliances…

Reduced cigarette burns

Reduced risk of fire

Decreased smell of SHS

Reduced cleaning, painting and maintenance

Reduced losses due to delays in rentals/sales

Reduced legal/admin costs

Fewer complaints

Smoking damages property

Smoking devalues property

http://www.newswire.ca/en/story/1146741/up-in-smoke-smoking-in-the-home-

can-lower-resale-value-by-tens-of-thousands

Possible reduction in insurance premiums

Legal

Enforceable

Non-discriminatory

No-smoking policies across Canada:

Legal opinion - Ontario

Perley-Robertson, Hill & McDougall LLP, 2008

Residential Tenancies Act, 2006 Section 4: “… a provision in a tenancy

agreement that is inconsistent with this Act or the regulations is void.”

RTA is silent on smoking

Details rights/responsibilities of landlords and tenants of residential premises

Provides means of settling disputes — Landlord and Tenant Board

Residential Tenancies Act, 2006 Section 38: “If a tenancy agreement for a

fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement…”

Therefore existing tenants who do not want to sign a new lease are “grandfathered” (exempted)

New tenants sign new leases with the no-smoking policy included

Buildings will gradually transition to smoke- free when the last smoking units are cleaned up and made non-smoking

Landlord application to LTB, Thunder Bay, Feb. 2012

LTB, File # NOL-07219-12

Social norms are changing

Vast majority of residents will simply follow the rules

Enforcement of no-smoking policies is mostly complaint-driven

Residential Tenancies Act, 2006 Section 37: “A tenancy may be terminated

only in accordance with this Act.” Breach of a no-smoking policy is not

considered “material” Enforcement must be based on: ◦ Breach of reasonable enjoyment ◦ Substantial interference with another

lawful right, interest or privilege of the landlord

◦ Damage – willful or negligent ◦ Safety issues

Landlord application to LTB, Ottawa, May 2010

File # EAL-03261-09

Landlord application to LTB, Sudbury, Jan. 2013

File # NOL-10401-12

What sort of evidence is needed? Collect formal complaints about the

source, extent, frequency and impact of the problem ◦ With specific dates and times

◦ Corroborate complaints between tenants

Where possible, document the damage

Ontario Landlord & Tenant Board Cases from LTB posted online:

◦ Landlord applications (with a policy)

◦ Landlord applications (without a policy)

◦ Tenant applications

www.smokefreehousingon.ca/sfho/ landlords-case-law-summaries.html

Also: Canadian Legal Information Institute (CanLII) excellent source of case law

Failure to pay rent

Safety issues — tampering with smoke detectors

Noise violations with police visits

Rudeness & violence

Irresponsible pet ownership, etc.

Smoking in violation of a no-smoking policy often involves other issues…

Condominium Act, 1998 Legal to adopt a no-smoking policy

Can be done 1 of 3 ways…

1. Via the declaration New builds 100%

smoke-free from outset ◦ Developer includes

policy in declaration ◦ i.e. Domicile

Developments in Ottawa

Existing condos require 80% support

◦ i.e. Lakeview Condos, Kenora & Heritage Way Condos, Lindsay

2. Via a bylaw Section 56: Bylaws. The board may, by

resolution, make, amend or repeal bylaws, not contrary to this Act or… declaration,

(j) to govern the maintenance of the units and common elements;

(l) to govern the management of the property

◦ Requires approval by majority of owners

3. Via a rule Section 58: Rules. The board may make,

amend or repeal rules respecting the use of common elements and units to

(a) promote the safety, security or welfare of the owners and of the property and assets…

(b) prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets…

Compliance and enforcement Section 17(3): The corporation has a duty to

take all reasonable steps to ensure that the owners… comply with this Act, the declaration, the bylaws and the rules.”

Section 119(1): “… an owner, an occupier of a unit… shall comply with this Act, the declaration, the bylaws and the rules.”

Section 117: Dangerous Activities “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.”

Condominium Act, 1998

Handling disputes The law provides a remedy: Section 132(1) requires (a) mediation & (b)

arbitration section 134(1) "an owner, an occupier of a

proposed unit, a corporation, a declarant... of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of the Act, the declaration, the bylaws, the rules..."

Interim injunction granted prohibiting the residents of a unit in a Toronto condo from smoking cigars on the condo property

Granted in context of s. 117, & condo’s general nuisance rule

“irreparable harm to the health of other residents if not granted”

York Condo Corp No. 529 vs. Prupas, Prupas & Burkart (2013), Ontario Superior Court of Justice

Human Rights Codes/Acts Provide protection from discrimination on

basis of — race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, disability, age, marital status, family status, being a recipient of public assistance and record of offences

Everyone has the right to equal treatment in accommodation …

Policy on Human Rights and Rental Housing, 2009

Ontario Human Rights Commission

No smoking policy ≠ no smokers

Addiction ≠ disability ◦ Addiction to nicotine can be satisfied in a

number of ways that don’t pollute the air

There is no “right to smoke” enshrined in Canadian law

Discrimination cuts both ways:

Emerging trend: residents of multi-unit dwellings with chronic health conditions are starting to cite discrimination based on exposure to second-hand smoke

For landlords/property managers:

Legal to have a lease/declaration, bylaw or rule that prohibits smoking

No-smoking policy is not discriminatory

Right to protect investment & interests

For tenants/condo owners:

Right to reasonable enjoyment or to be free from nuisance

Human rights

www.smokefreehousingon.ca/hsfo/file/files/ Community_Housing_Jan_2013.pdf

Region of Waterloo

Centretown Citizens Ottawa Corporation

Southern Ontario

“Ottawa’s only smoke-free new condominium”

Domicile Developments, Ottawa

www.smokefreehousingbc.ca

Alberta - Greater Edmonton Foundation Housing for Seniors

Yukon Housing Corp

100% smoke-free Jan. 1st, 2012

No grandfathering

579 units

www.smokefreehousing.ca

Thank You!

Pippa Beck pbeck@nsra-adnf.ca

613.230.4211 X1