Smoking: Frequently Asked Questions
1. Are landlords legally allowed to ban smoking in private rental units and balconies?
Yes, your landlord has the legal right to make their building completely smoking free. Landlords also have the right to make parts of buildings smoke-free, this includes individual units, your balcony and also the entire property. Although 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.
2. Do the municipal and provincial governments have smoke-free laws that are applied to residential buildings?
Yes, these smoke-free laws, called the Tobacco Control Act in British Columbia, was made effective on March 31, 2008. This was amended in order to introduce a province-wide ban on smoking in public areas, this includes:
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, these are called buffer zones, they are the places like the public entrance ways 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.
3. Are landlords allowed to disallow/ban smoking in units where the existing tenancy agreement does not include a no-smoking clause?
No, in British Columbia landlords cannot make a pre-existing tenant comply with a no-smoking band where the landlords existing tenancy agreement does not contain any non-smoking clauses. 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.
4. If there is a reasonable notice period, would a landlord be able to ban smoking in existing units.
No, due to the same policy that prevents landlords from suddenly changing their smoking clause in their tenancy agreement, a landlord cannot make pre-existing tenants to comply with their new no-smoking policies in their rental unit, even if the landlord provides a reasonable notice period for implementing the policy.
5. Why do landlords have the privilege of banning smoking in private residences if smoking is legal?
Landlords have the power in order to create policies and set restrictions in order to protect the health and safety of the Landlord’s residents. They also make these in order to protect their property. This means as long as their policies do not conflict with the federal and or provincial laws, adopting a non-smoking policy is very similar to making other policies, such as a 'no pets' or 'no barbeques' policy
6. In buildings where smoking is allowed, can second-hand smoke constitute a breach of Quiet Enjoyment under the Residential Tenancy Act?
Yes, however only in certain circumstances, second-hand smoking is able to constitute a breach of quiet enjoyment. The right of quiet enjoyment, in British Columbia, quiet enjoyment is part of statutory and common law. This is made sure to be implied in every tenancy. This means that every tenant is entitled to quiet enjoyment, this includes their freedom from disturbances that are deemed unreasonable from the other tenants. In a building where smoking is allowed, landlords should always make sure to be aware that the ability to smoke is not absolute. If a tenant has the proof that second-hand smoke is infiltrating their home, from a neighbouring unit or a neighbouring balcony frequently, and interfering with their quiet enjoyment, then the landlords will have the 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. However if the landlord wants to evict the tenant they must have proof that the smoke is server enough in order to cause an unreasonable disturbance. As in if the problem is more of a discomfort or inconvenience the landlord does not have reason to evict the smoking tenant.
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.
7. Can a landlord evict for cause if a tenant breaches a “no-smoking” policy?
Yes, when a tenant breaches the landlord’s no-smoking policy, the landlord does have cause to evict. The landlord can clearly just show that tenant has broken an important material term of the tenancy agreement (in this case it would be the no-smoking policy); and that the tenant failed to comply with it after receiving written notice of the breach.
8. Is Sensitivity to second-hand smoke a disability that landlords without a no-smoking policy have to accommodate under the BC Human Rights Code?
Only in certain cases, the sensitivity to second-hand smoking like medical conditions such as asthma, allergies or respiratory illness. Could 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.
Even now, there has not been a human rights case that has 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.
9. Is smoking a disability that landlords with a “no-smoking” policy would have to accommodate under the BC Human Rights Code?
Not only has the issue been considered numerous times over the years, the Canadian courts have non-stop ruled, with one exception, that the addiction to nicotine is not a disability. This singular exception was the decision of the BC Labour Relations board in an employment context. Although the Board found that heavily addicted smokers were disabled, they also recognized that the employer’s no-smoking policy was reasonable and adopted to protect non-smokers from a well-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.
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