when Neighbours Smoke: a teNaNt’S guIde

If second-hand smoke (SHS) respected boundaries and stayed where tobacco was smoked, exposure to SHS in multi-unit dwellings would not be an issue. Unfortunately, the problem of SHS infiltration from one unit to another is all too common—approximately one-third of Ontarians living in multi-unit dwellings report regular exposure in their own homes from neighbouring units.1 Regardless of how well a building is built or main-tained, pressure gradients between units and floors can cause air to travel through cracks, gaps, electrical outlets, phone jacks, ventilation systems, dropped ceilings, and from balconies, taking with it air pollutants such as SHS.

Despite strong public support for smoke-free housing options,2 and the fact that the vast majority (84%) of Ontarians do not smoke,3 supply is not currently meeting demand. This is mostly due to the fact that many landlords do not realize that no-smoking policies are legal, enforce-able and non-discriminatory. Dealing with the problem of exposure to SHS in your own home can be a frustrating and confusing undertaking with no clear path to a satisfy-ing outcome. Indeed, when they complain, many tenants are told by their landlords that there is nothing that can be done.

SecoNd-haNd Smoke IS more thaN a NuISaNce

Second-hand smoke is a toxic mix of 7,000 chemicals, more than sixty of them cancer-causing. There is NO safe level of exposure. Short-term exposure (30 minutes or less) irritates the eye, nose and throat and actually causes blood vessels to constrict, increasing blood pressure and making the heart work harder. Each year in Canada, long-term exposure causes more than 800 deaths in non-smokers from heart disease and lung cancer, and keeps thousands more from leading normal, healthy lives.4 Long-term exposure can also cause nasal sinus cancer and breast cancer in adults and sudden infant death syndrome, low birth weight, ear infections, asthma and bronchitis in children.

The smell of SHS is difficult, if not impossible, to remove from things like carpets and furnishings. Scientists are starting to realize that SHS residues (also known as third-hand smoke) can persist indoors for weeks, months or even years. These chemicals remain on surfaces and in dust and then later “off-gas,” i.e. are emitted back into the air. Very little is currently known about the actual or

1 Smoke-Free Housing Ontario. 80% of People Living in Apart-ments, Condos and Coops Want to Live Smoke Free. Press release based on Ipsos Reid polling, December 2010. www.newswire.ca/en/story/892061/80-of-people-living-in-apartments-condos-and-co-ops-want-to-live-smoke-free.

2 Ibid. 3 Health Canada. Canadian Tobacco Use Monitoring Survey (CTUMS)

2011. Supplementary Tables - Annual. www.hc-sc.gc.ca/hc-ps/tobac-tabac/research-recherche/stat/_ctums-esutc_2011/ann-eng.php#t2.

4 Health Canada. Second-Hand Smoke: It’s Your Health. 2012. www.hc-sc.gc.ca/hl-vs/iyh-vsv/life-vie/shs-fs-eng.php.

potential health effects of chronic exposure to third-hand smoke. However, numerous voluntary smoke-free policies by hotels and rental car companies have been triggered by complaints of the smell alone.

Many people are under the impression that problems with SHS infiltration can be solved with ventilation. While ven-tilation and related methods (air purifiers and filters) can help to clear some of the smoke from indoor air, there is no building ventilation system that can remove SHS toxins to protect human health. 

what doeS the law Say about SmokINg IN multI-uNIt dwellINgS?

Under the Smoke-Free Ontario Act, smoking is prohibited in the enclosed common areas of multi-unit dwellings, including lobbies, elevators, hallways, parking garages, etc. It is the responsibility of the landlord to post required No Smoking signs and to ensure that no one smokes in these areas. If there is a problem in your building with smok-ing in enclosed common areas, contact your local public health unit. The Smoke-Free Ontario Act does not pro-hibit smoking in private units, on balconies and patios, or around building entrances; however, a few municipalities have bylaws prohibiting smoking outside public places.

what are my rIghtS?

The Residential Tenancies Act, 2006, balances the rights and responsibilities of landlords and tenants and provides the opportunity for dispute resolution at the Landlord and Tenant Board. Under the law, tenants have a right to reasonable enjoyment, which is the right to use and enjoy their unit and to be protected against interference by the landlord or other tenants. In some cases, adjudica-tors at the Landlord and Tenant Board have determined that exposure to SHS constituted a breach of reasonable enjoyment.5

The Ontario Human Rights Code, which applies to areas under provincial jurisdiction such as housing, protects people from discrimination on 14 grounds, including dis-ability. Tenants with health conditions made worse by exposure to SHS, such as asthma, are starting to exercise their human rights in their quest for clean indoor air. There are a handful of cases from British Columbia where resi-dents have accused their landlord or condo corporation of discriminating against them by failing to protect them from exposure to SHS.6

5 Smoke-Free Housing Ontario. Case Law Summaries. www.smoke-freehousingon.ca/sfho/tenants-case-law-summaries.html.

6 Smoke-Free Housing Ontario. Laws: Ontario Human Rights Code. www.smokefreehousingon.ca/sfho/tenants-laws.html.

7 Speak to a customer service representative at 1-888-332-3234 from outside Toronto or 416-645-8080 from within the Toronto calling area, or visit the Board online at www.ltb.gov.on.ca.

8 www.equalityrights.org. 9 www.smokefreehousingon.ca/sfho/directory.html.

Helping increase options for smoke-free living

what Should I do?

1. Write a letter of complaint to your landlord. Written complaints will be taken more seriously than verbal ones, and will also provide a paper trail if you end up taking your landlord to the Landlord and Tenant Board for dispute resolution.

2. Try to block the smoke entering your unit by sealing up cracks and gaps. Ask the landlord to check the ventilation system (if there is one) to make sure that it is operating properly.

a sample letter is available from Smoke-Free Housing Ontario: www.smokefreehousingon.ca/cms/file/files/

sample_complaint_letter.pdf

Smoke-Free Housing Ontario has information and sugges-tions to reduce SHS infiltration: www.smokefreehousingon.ca/

sfho/tenants-minimize-the-problem.html

3. Consider also getting a letter from your doctor stating the importance of avoiding exposure to SHS. If you have a health condition made worse by exposure, your doctor can emphasize your particular need for smoke-free air.

4. Carefully document the problem. Keep a diary with dates and times detailing every time smoke enters your unit, where it seems to come in, how it affects you, and everything that you do to try to address the problem. This is vital—without sufficient documenta-tion/evidence, it can be challenging to prove that the SHS infiltrating your home is an “unreasonable” disturbance that has resulted in a loss of your reason-able enjoyment.

a sample letter is available from Smoke-Free Housing Ontario: www.smokefreehousingon.ca/cms/file/files/

sample_physician_letter.pdf

SHOuld I StaY Or SHOuld I MOve Out?

In writing, ask the landlord to break your lease without penalty.

If the landlord agrees

smoke-free hous-ing ontario has lists of landlords with no-smoking policies.9 or look for an apartment online using search terms like “smoke-free” or “no smoking.” ask lots of questions before you sign the lease. You could still be exposed to smoke even if a unit is advertised as smoke-free, because landlords must exempt current tenants when they adopt no-smoking policies.

If the landlord dIsagrees

You will need to file a t2 form (Applica-tion About Tenant Rights) at the land-lord and tenant Board, requesting that the tenancy be terminated because of “serious interfer-ence with reason-able enjoyment.”

If you feel that the landlord has not reasonably responded to your complaints and you’ve run out of op-tions, file an application at the land-lord and tenant Board, citing breach of reasonable enjoyment. You can call the Board or visit it online for more information.7

If your landlord and tenant Board application is dismissed and you have a health condition that is made worse by exposure, consider filing a human rights complaint at the hu-man rights tribunal of ontario, cit-ing discrimination based on disabil-ity. Contact the Centre for equality rights in accommodation for more information about human rights.8

I’m goIng to staY I’m goIng to move out

1. Write a letter of complaint to your landlord. make sure you date it and keep a copy.

2. ask the landlord to try to block the smoke from coming in, or try to do it yourself. If applicable, ask the landlord to also check the corridor ventilation system as well as individual kitchen and bath-room fans. You could also check into the possibility of pressurizing your unit with fresh air to create a smoke-free air bubble inside your apartment. You’ll need to consult a ventilation expert for this.

3. Consider also getting a letter from your doctor stating your need to avoid shs exposure. any health conditions made worse by exposure should be emphasized.

4. Carefully document the problem.

regardless of whether you decide to stay or move out, your landlord needs to know that no-smoking policies are legal, enforceable and non-discriminatory. smoke-free housing ontario has tools and

resources geared to landlords to help with policy development.

Should I Stay or Should I move out?

If you feel that your best efforts to resolve the problem have failed and that your landlord has not responded reasonably to your com-plaints, it’s time to decide whether you are going to stay or move out.

Staying will involve filing an application for adjudication at the Landlord and Tenant Board, citing breach of reasonable enjoyment. There is no charge to file a T2 form (Application About Tenant Rights) and you are not required to have a lawyer or agent with you at your hearing. In terms of remedies, you could ask the Landlord and Tenant Board to order your landlord to undertake specific repairs or modifi-cations to the unit or building. Another remedy that has been ordered by the Board is a rent reduction until the landlord is able to effectively prevent continued exposure; this could even include the landlord issu-ing an N5 form (Notice to Terminate a Tenancy Early) to the offending tenant. However, be aware that:

» Your landlord might bring a lawyer;

» You will likely be asked to participate in mediation prior to a hear-ing. You will need to be prepared to negotiate a settlement; and

» If mediation fails and your application is dismissed at the hearing, you could be ordered to pay for your landlord’s expenses.

Simply having SHS present in your unit is likely not enough to suc-cessfully argue a breach of reasonable enjoyment. You must provide a compelling argument that the problem is happening frequently and that the amount of SHS is interfering with your normal use and enjoyment of your apartment. Examples include not being able to open windows or use your balcony, or having to sleep in another room because the air quality in the bedroom is so poor. Arguments like this can be made stronger by referencing health problems experienced due to the smoke.

Depending on what happens at the Landlord and Tenant Board, and whether you qualify for protection under the Code, you might also consider filing an application at the Human Rights Tribunal of Ontario citing discrimination based on disability.

If you decide to cut your losses and move out, you can either give your landlord 60 days notice as required by law, or you can request in writing to break your lease without penalty. If your landlord denies your request, you have the option of filing a T2 form (Application About Tenant Rights) citing breach of reasonable enjoyment and re-questing termination of the tenancy on the date of your choice. A T2 can also be submitted after you have already moved out, requesting compensation for moving costs. When searching for a new apartment, make sure you ask lots of questions about possible exposure to SHS before you sign the lease, and try to get something in writing from the landlord to confirm your understanding.

Spread the word

Regardless of how you resolve your problem, your landlord needs to know that no-smoking policies are legal, enforceable and non-discrim-inatory. Landlords have the right to impose additional obligations or restrictions on tenants beyond the standard lease agreement, as long as these requirements do not conflict with the Residential Tenancies Act, 2006, the Ontario Human Rights Code, or any federal law.

When Neighbours Smoke: A Tenant’s Guide is a publication of the Non-Smokers’ rights association (NSra) and the Smoking and health action Foundation (ShaF). the NSra is a national non-profit health organization with a mission to promote public health by reducing illness and death caused by tobacco, including second-hand smoke. ShaF is the research arm of the NSra.

Smoke-Free housing ontario helps to increase options for smoke-free living. our goal is to make smoke-free multi-unit housing the norm in ontario—where supply meets demand. the Smoke-Free housing ontario website was created by the Non-Smokers’ rights association/Smoking and health action Foundation.

march 2013

Ottawa

130 albert St. Ste. 1903 Ottawa, ON K1P 5G4 613.230.4211 ottawa@nsra-adnf.ca

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720 Spadina ave. Ste. 221 toronto, ON M5S 2t9 416.928.2900 toronto@nsra-adnf.ca

Smoke-Free Housing Ontario has lots of tools and resources available for landlords to help with the adoption of no-smoking

policies: www.smokefreehousingon.ca/sfho/landlords.html

You can read more about human rights on Smoke-Free Housing Ontario: www.smokefreehousingon.ca/sfho/

tenants-human-rights-tribunal.html

a checklist to help you prepare for your hearing is available from Smoke-Free Housing Ontario: www.smokefreehousingon.ca/

sfho/tenants-landlord-and-tenant-board.html