What Tenants Need to Know

Second-hand smoke can travel from one residence to another through cracks in walls, doorways, plumbing and electrical systems, heating and air conditioning ducts and outdoor patios and balconies. It is a major problem for many residents living in multi-unit dwellings (MUDs), especially those who suffer from chronic health conditions such as heart disease, asthma, allergies, diabetes, and respiratory illnesses.

Though there are smoke-free laws in most provinces and territories that ban smoking in public places and workplaces, there are currently no laws that prohibit a person from smoking in private residences. Apartment owners and condo corporations are free however to set restrictions in rental agreements, leases and bylaws, including making individual apartment units, wings, or entire buildings smoke free (although condo bylaws differ from jurisdiction to jurisdiction).

It is important to note that there is no right to smoke enshrined in Canadian law. Although smoking is a legal activity, people do not have the right to smoke in any manner they choose. The courts have recognized this fact in upholding numerous smoking restrictions across the country, including smoking bans in all public places and workplaces in most jurisdictions in Canada.

Legal rights

The right not to be exposed to second-hand smoke is not absolute, and the law with respect to private spaces has not caught up to the protection afforded to people in workplaces and public places. However, under provincial/territorial tenancy laws, people are entitled to "quiet enjoyment" of their home, which includes the right to be free from unreasonable disturbances by other tenants or their guests. It is possible that a residential tenancy official/tribunal could rule that second-hand smoke infiltrating your home constitutes an unreasonable disturbance and thus order some form of remedy. The remedy might include repairs to the building to minimize the drifting smoke, permission to break your lease, or some other solution.

For more information, check out the document created by the Non-Smokers' Rights Association that addresses the often confusing debate about smokers' versus nonsmokers' rights related to second-hand smoke in multi-unit dwellings - Canadian Case Law on Drifting Second-hand Smoke in Multi-unit Dwellings.

What can be done if smoke is entering your home

1. Identify how the smoke is entering your home. Request that your landlord make all reasonable repairs to correct the problem, including sealing cracks and upgrading or cleaning filters in ventilation systems.
2. Try to figure out if the problem relates to the central ventilation system or your local kitchen or bathroom fan.
• The central ventilation system may not be working properly, or perhaps the system is operating intermittently on a timer and the schedule needs to be adjusted. Ask your landlord or superintendent to check into it.
• If you suspect your kitchen or bathroom fan, try the tissue test. Hold a tissue to the grille: the fan should be able to hold it firmly in place. If it blows instead of sucks, talk to your landlord about getting it cleaned, repaired or replaced.
3. Check to see whether smoking is already banned in the common areas of your building:
• Check the law governing smoking in public places in your province/territory.
• Check whether there is a local bylaw banning smoking in public places.
• Check your lease agreement or the declaration/bylaws of your condominium. If there is a policy or law banning smoking in common areas, the problem may stem from lack of awareness or enforcement. To increase awareness, no-smoking signs should be posted and visible wherever smoking is not permitted.
4. If smoking is banned in your lease, contact your landlord. If this does not solve the problem, document all incidents (who, when, where) and file a complaint with the provincial residential tenancy office (contact information available in the NSRA Backgrounder document When Neighbours Smoke). If smoking is banned under your condominium's declaration or rules, you will need to inform the board of directors about the problem and request that appropriate disciplinary action be taken.
5. If smoking is allowed in your building, here are some other options:
• Talk to your neighbours first and try to negotiate an amicable solution. Let your neighbour know that you are having problems with the drifting smoke, that you are concerned about your health, and that you want to work out a mutually satisfying solution.
• If the problem continues, write a letter to your landlord about the behaviour that is disturbing you and request assistance in resolving the problem. Your landlord has a responsibility to act on all reasonable complaints. Landlords have the authority to restrict or ban activities that unreasonably interfere with the "quiet enjoyment" of other residents in the building.
• Get a note from your doctor to support your complaint if you have a chronic illness or condition made worse by exposure to second-hand smoke, such as asthma, allergies or heart disease.
6. If all else fails and the problem continues after you have taken all reasonable steps to negotiate a solution, or your landlord refuses to assist in resolving the problem, contact your provincial residential tenancy office to discuss your options, including the possibility of applying for arbitration on the basis of breach of "quiet enjoyment". While there is limited case law to protect tenants from exposure to second-hand smoke in private dwellings, others have gone this route and been successful. The Non-Smokers' Rights Association has prepared a short document on Canadian case law pertaining to second-hand smoke. Click here for a report on Canadian Case Law on Drifting Second-hand Smoke in Multi-unit Dwellings.

**Some of the information in this section was taken from documents created by the Non-Smokers Rights Association - When Neighbours Smoke.