Canadian Case Law on Drifting Second-hand Smokein Multi-Unit Dwellings

Read Full Article including the case law
http://www.talkstrata.com/files/Canadian_drift_smoke_case_law_March_2007.pdf

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 in MUDs 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. In addition, smoking is not the only way to feed an addiction to nicotine - there are nicotine replacement therapies like the patch or gum, as well as a variety of smokeless tobacco products.

However, there is a difference between smoking and being addicted to nicotine, and there is a body of Canadian case law on addiction and disability. Nicotine addiction hasn't worked its way through the courts yet, but it is feasible in the future that a judge could find someone's nicotine addiction to be a disability. In fact, in a 2000 arbitration case in British Columbia between Cominco smelter operator and its union, a Canadian Labour Relations Board arbitrator found that the company's no-smoking policy unfairly discriminated against its heavily-addicted smoking employees. The arbitrator determined that there was no inherent right to smoke, but required the employer to take all steps up to the point of undue hardship to accommodate the employees. And there lies the key: “reasonable accommodation up to the point of undue hardship.” In a housing situation, it is unlikely that a judge would strike down a landlord's smoke-free policy, given the known health hazards of exposure to SHS. In the event of a court case, the judge might require the landlord to reasonably accommodate the tenant's disability by providing a safe smoking area outside.

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.

source: Non-Smokers' Rights Association

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Canadian_drift_smoke_case_law_March_2007.pdf	139.98 KB

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