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DURAND VILLAGE TENANT ASSOCIATION
Not-for-profit & Unincorporated
dvtassociation@gmail.com
Your Association with a Heart.
WITHOUT PREJUDICE
The DVTA continues to receive emails expressing genuine concern about second-hand smoke filtering into non-smokers' units. These emails express health risks caused by drifting second-hand smoke.
The DVTA respectfully advises tenants to check their lease for the non-smoking clause Section 10 in all leases 2018 forward. In leases, prior to 2018, there are clauses that prohibit 'noxious fumes'. Second-hand smoke may be classified as noxious fumes.
Further, be advised that there are a number of laws regarding the prohibition of smoking in multi-unit dwellings.
Further, be aware that a tenant that smokes may be in violation of a number of laws.
Further, be advised that with COVID 19 conditions, medical professionals recommend not smoking.
Please consider the health risks to non-smoking neighbours and possible consequences for noncompliance with leases and laws.
This document is intended to clarify the often confusing debate about smokers' versus non-smokers' rights related to drifting second-hand smoke in multi-unit dwellings (MUDs). On this issue, some would argue that tobacco control advocates who talk about smoking bans inMUDs cross the line by infringing on the rights of smokers in their own homes. We often hear that a person's home is their castle, and what they choose to do behind closed doors is no one's business but their own.
The case law included in this document should clarify the rights of smokers and those of non-smokers as interpreted by the courts. However, before turning to it, it is important to review which pieces of legislation have a bearing on this issue. The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982, and is intended to protect certain political and civil rights of people in Canada from the policies and actions of all levels of government.
The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), not to private activity such as what is contained in a landlord's lease. Contrary to the claims of various smokers' rights groups, the Canadian Charter of Rights and Freedoms does not provide protection against discrimination as a smoker. The Charter does not recognize smokers as a group suffering social, political, or legal disadvantage in our society.
Under this legislation, smoking is not considered a physical disability, and this has been demonstrated in a small handful of cases. Every province and territory in Canada has a piece of legislation governing human rights, and in most jurisdictions, it is called the Human Rights Code or Act. Each Code or Act overrides all other pieces of legislation in that jurisdiction unless a specific exemption is given.
Pertaining to specific things including housing and employment, these provincial and territorial laws protect people from discrimination on the basis of disability, race, ancestry, sexual orientation, age, gender, family status, income, etc.
Smoking is not identified anywhere as grounds for protection in these Acts, and the NSRA is not currently aware of any Canadian human rights case law where smoking was found to be so. Just because someone exercises their freedom to smoke does not mean they have an absolute right to smoke.
To sum up:
- There is no right to smoke enshrined in Canadian law
- Personal autonomy is not synonymous with unconstrained freedom
- Smokers are not a protected class nor recognized as having a disability under the Canadian Charter of Rights and Freedoms
- Non-smokers have a right to breathe clean air and children have a right to be raised in a smoke-free environment
- In a small handful of cases, Canadian courts have been sympathetic to the plight of non-smokers unwillingly exposed to drifting SHS in their own homes. Cases have been won on the premise of nuisance, as well as a breach of the covenant of quiet or peaceful enjoyment
DriftingSHS:
- BreachoftheCovenant of Quiet or Peaceful Enjoyment 1.Cartwright v. Gray, 1866 (O.J. No. 268), Upper Canada Court of Chancery A nuisance smoke case involving a neighbour erecting a carpenter's shop and running a circular saw, and burning the pine shavings and other refuse. The plaintiff complained about the smoke, noise and sparks produced by the engine. The judge said: “A man may not use his own property so as to injure his neighbour. When he sends on the property of his neighbour noxious smells, smokes, &c. [sic], then he is not doing an act on his own property only, but he is doing an act on his neighbours property also; because every man, by common law, has a right to the pure air, and to have no noxious smells or smoke sent on his land, unless, by a period of time, a man has, by what is called a prescriptive right, obtained the power of throwing a burden on his neighbour's property... Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences – injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”
WITHOUT PREJUDICE
DVTA President, Doreen
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