Smoking and second-hand smoke – Ontario housing law basics

Generally, unless a rental agreement includes a term stating that smoking is not permitted in the unit or building, the Residential Tenancies Act (RTA) allows a tenant to smoke in their unit as long as the second-hand smoke does not interfere with the landlord’s or another tenant’s reasonable enjoyment of the rental unit and complex. Even if a rental agreement permits smoking, the Landlord and Tenant Board (LTB) can order a tenant to stop smoking indoors if the LTB determines that smoking has interfered with another tenant’s, or the landlord’s, reasonable enjoyment of the rental unit and complex. 

Non-smoking terms in rental agreements are generally valid. If the tenancy agreement or lease specifies that it is a non-smoking unit, then smoking is not allowed in that unit. Smoking in a non-smoking unit may result in the tenant receiving an eviction notice from the landlord.  

A landlord may designate specific areas at the residential complex where smoking can occur, but the landlord is not required to do this. The Smoke Free Ontario Act prohibits people from smoking in common areas of their apartment buildings, including in areas like parking garages. 

Removing a smoke detector creates a fire hazard. This can put both the tenant and other occupants in danger. A landlord may start eviction proceedings if a tenant removes or tampers with any smoke detector. The LTB may issue an eviction order in these circumstances. 

Neither landlords nor tenants are allowed to change the terms of a tenancy without the agreement of the other party.  If a rental agreement does not prohibit smoking, the landlord is not allowed to impose a no smoking policy inside rental units. Similarly, if a rental agreement prohibits smoking tobacco, but not cannabis, then the landlord cannot later impose a ban on smoking cannabis. However, even if a lease may allow some forms of smoking, a tenant may still face eviction if their smoking interferes with another tenant’s reasonable enjoyment in the building or causes damage to the rental unit and complex. 

Second-hand smoke in a tenant’s unit may be found to be an interference with a tenant’s reasonable enjoyment under Ontario’s Residential Tenancies Act. Your landlord has a responsibility to provide you with reasonable enjoyment in your unit. If smoke from outside or other units substantially interferes with your enjoyment of your unit, then your landlord has a responsibility to take steps to resolve this. To do that, your landlord may need information about what you are experiencing. 

To prepare the information to send to your landlord, write down detailed notes that describe the issues you are experiencing, including these key details:  

• When and where you see or smell the smoke. 
• The dates, times, names of other people who were there, and any other relevant information. 

• The steps you took to alleviate the smoke, and whether or not those steps helped. 

• For example, write down if you opened windows, turned on a fan, or used an air purifier. 

• If you spoke with a medical professional about how your health has been affected by second-hand smoke in your unit or common areas. 

Once you have prepared the information about the issues you are facing, communicate in writing to your landlord outlining the problem and asking them to correct it. If your landlord does not respond to you in a reasonable time, send them a reminder. Keep copies of all your correspondence with the landlord. 

When a landlord receives a complaint about smoke in their building, the first thing they should do is investigate the problem. If the landlord establishes that a tenant has been impacted by second-hand smoke, the landlord should take reasonable and timely steps to resolve the issue.  

Some examples of what a landlord can do include:  

• Sealing cracks or vents which may be letting in the smoke.  
• Installing reliable air filters or air purifiers in the unit to clean the air.  
• Creating negative pressure in the unit of someone who smokes to move the smoke outside. 

If smoke is coming from outside through windows or vents, a landlord may ask the tenant not to smoke within a specified distance from the building.  

A landlord may start eviction proceedings against the tenant causing the second-hand smoke. Sometimes the tenant who smokes may not be evicted. Instead, they may be ordered to stop smoking where they had been smoking before.   

If your landlord tells you that they have been unable to stop the smoking, you may wish to write to the landlord and request they provide the details of the steps they have taken to address your complaint.  

Yes, provided your tenancy is protected under the Residential Tenancies Act. However, a landlord should be given a reasonable amount of time to remedy the situation as described in the section above on second-hand smoke exposure. Tenants cannot file applications against other tenants at the Landlord and Tenant Board (LTB) but they may file an application against a landlord if the landlord does not take timely and reasonable steps to come up with a solution. As an applicant, you will have to provide evidence that shows: 

• That there is smoke in your unit or in common areas. 
• That it substantially interferes with your reasonable enjoyment. 
• That the landlord has not taken adequate steps to reduce or eliminate the smoke from your unit.  

The LTB will rely on the best and most credible evidence that is presented, which in some cases is simply the spoken testimony of the tenant who is experiencing the second-hand smoke. Other evidence that a tenant can produce to help the LTB make a decision includes notes they have written that describe what they have experienced and how they have tried to remedy the issues, or photos they have taken that show what has happened.  

Although it can be helpful, it is not always necessary to have scientific evidence of second-hand smoke. Air quality, hair, and urine sample tests may show exposure to second-hand smoke, but the LTB may require this type of evidence to be interpreted by an expert or the professional who conducted the test. It is not certain that a tenant will be compensated for the costs of these types of tests. It is important to seek legal advice before filing an application at the LTB. 

Through the course of a hearing, the LTB will first hear evidence and arguments from each side,  then determine whether the tenant who complained about second-hand smoke has experienced substantial interference with their reasonable enjoyment of the rental unit or the complex, and finally grant appropriate remedies. Depending on the circumstances of each case, these remedies may include:  

• A rent rebate for the tenant who complained about second-hand smoke. 
• Allowing the tenant who has complained about second-hand smoke to end their lease early if they wish. 
• The landlord being obligated to install air filters/purifiers. 
• The landlord being obligated to make certain repairs. 
• The landlord being obligated to conduct air quality testing. 
• The landlord serving the offending tenant with an eviction notice.
• The landlord implementing a rule that a tenant must not smoke within a specified distance from a window, vent, in common areas or outside the building(s). 

A landlord is required to balance conflicting rights between tenants, when an accommodation granted to one tenant impacts the rights of another tenant. In doing this, the landlord must address the degree of harm caused to another person by the accommodation provided. For example, a person with a tobacco addiction may be harmed if they are not allowed to smoke, and a person with a smoke allergy may be harmed if they are exposed to second-hand smoke.  In this scenario, a landlord must consider the degree of harm endured by both of these tenants and decide who will experience the greatest degree of harm as a result of any remedies the landlord takes to resolve the issue.  

If you are experiencing a situation where your rights conflict with someone else’s, it is important to seek legal advice and to work with your landlord to find a solution. This may include the landlord making changes to the building to make it more inclusive or allowing a tenant to smoke while also protecting the person being harmed by the second-hand smoke. Alternatively, it may involve relocating one of the tenants or ending the tenancy of the tenant interfering with the reasonable enjoyment of the other. 

For more information about conflicting rights, please see the Ontario Human Rights Commission’s Policy on Human Rights and Rental Housing and Policy on ableism and discrimination based on disability.  

City of Toronto – Smoke-free Apartments, Condos and Co-ops: https://www.toronto.ca/community-people/health-wellness-care/health-programs-advice/live-tobacco-free/second-hand-smoke-and-the-law/smoke-free-apartments-condos-and-co-ops/ 

Smoke Free Housing Ontario:  https://smokefreehousingon.ca/taking-action/ 

Canadian Lung Association: https://www.lung.ca/lung-health/smoking-and-tobacco/second-hand-smoke-also-dangerous 

Some information about testing from Canadian Centre for Occupational Health and Safety: https://www.ccohs.ca/oshanswers/psychosocial/ets_health.html. Link on “Can Exposure to ETS be measured?” https://www.ccohs.ca/oshanswers/psychosocial/ets_health.html 

TEL-87743-18 (Re), 2018 CanLII 42920 (ON LTB), <https://canlii.ca/t/hs1d5>, retrieved on 2022-09-22 

EAL-65791-17 (Re), 2017 CanLII 60551 (ON LTB), <https://canlii.ca/t/h5xz3>, retrieved on 2022-09-20 

TET-09767-10 (Re), 2010 CanLII 79604 (ON LTB), <https://canlii.ca/t/2f8fv>, retrieved on 2022-09-19