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