Residential tenancy relationships in BC are governed by the Residential Tenancy Act. The Act does not contain any specific provisions relating to smoking or second-hand smoke. However, the Act does allow a landlord to include a no-smoking clause in all new tenancy agreements to ban smoking in all units, balconies and the entire residential property. It is perfectly legal.

If a Tenancy Agreement does not include a no-smoking clause, tenants are allowed to smoke in their units. However, tenants do not have unfettered rights to smoke. According to Section 28 of the Act, tenants are entitled to quiet enjoyment, which includes the right to be free from unreasonable disturbances. If other tenants complain of unreasonable disturbances due to second-hand smoke infiltrating their units, a landlord has a responsibility to take steps to address the problem. (See Quiet Enjoyment)

While the law does not specifically mention second-hand smoke as grounds for a breach of quiet enjoyment, there is case law to support the argument that smoke that is causing a significant interference can be considered grounds for a loss of quiet enjoyment. (See case law)

For more information consult the Residential Tenancy Branch Guide for landlord and tenants in BC or the Residential Tenancy Act.

In most jurisdictions across Canada, including British Columbia, smoking is banned in all indoor public places and workplaces, including restaurants and bars. (The smoking ban in workplaces also applies to apartment units when workers are painting or conducting renovations). While there are no provincial laws that control smoking in private residences of multi-unit dwellings, BC recently enacted legislation to ban smoking in common areas and entrances of apartments and condominiums.

Effective March 31, 2008, the BC Tobacco Control Act in British Columbia was amended to introduce a province-wide ban on smoking in public places, including these areas of apartments and condos:

• Common areas of apartment buildings, condominiums and dormitories, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and
• Within 3 metres (buffer zones) of public entranceways to apartment buildings, open windows and air intakes.

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.

There are three situations where current bans on smoking will not apply:

1) Residents or persons in care of facilities licensed or registered under the Community Care and Assisted Living Act, and 2) patients in extended care facilities or private hospitals (refer to Section 1 and Part 2 of the Hospital Act). They will be able to smoke in designated smoking rooms if permitted in the facility, but staff and visitors will not be able to smoke there. 3) Hotel rooms will also be exempt from this ban, but not hotel common areas.

In accordance with Section 2.3(3) of the Tobacco Control Act, Landlords are responsible for enforcing the smoking ban in common areas and entrances of apartment buildings.

If the Landlord is not able to enforce the legislation, he or she should contact their local Health Authority, and ask for a representative in the tobacco control area. Tobacco Enforcement Officers through the various health authorities are charged with the day-to-day enforcement of BC tobacco control legislation.

Where municipal bylaws are stricter than provincial legislation, unresolved complaints should be made to the municipal bylaw enforcement department.

Read more about new BC tobacco laws.

Municipal governments have the authority to ban or restrict smoking in public places within their geographic limits and to create smoking bylaws that exceed BC smoke-free regulations. Many have.

With regard to multi-unit dwellings, some municipalities have enacted stronger buffer zone requirements than the province, including Vancouver, Surrey, Richmond and the Capital Regional District. Also, many BC municipalities and health authorities have more stringent restrictions in place for care facilities, and those restrictions would apply. Contact your local municipality to find out more.

It should also be noted that municipalities in BC could pass bylaws regulating smoking in apartment and condominiums, though none have done so to date. The City of St. John’s in Newfoundland and Labrador recently adopted new non-smoking rules for its non-profit housing sector. The rule means that tenants who sign tenancy agreements with the City from now on will have to agree not to smoke inside their units. The rules do not apply to existing tenants, who may continue to smoke in their units until they vacate the premises.

Health authorities in B.C. are building on the government’s 2007 Tobacco Control Act and will phase out smoking throughout health facility buildings and grounds by October 2008.

All six health authorities – Vancouver Coastal Health, Vancouver Island Health Authority, Fraser Health, Interior Health, Northern Health and the Provincial Health Services Authority will adopt smoke-free policies. But, policies will vary depending on the needs of their key populations, including palliative, addictions and mental health patients, as well as long-term care residents. Each health authority will assess the specific needs of each site and population, and then make accommodations if needed for security or safety reasons.

View the policies in each Health Authority.

The Human Rights Code is a BC statute that protects the public against various prohibited forms of discrimination, including discrimination based on a disability. In a housing context, the Human Rights Code contains two principle provisions of interest concerning smoking and no-smoking policies.

These provisions appear in Sections 8 (1) and 10 (1) of the Human Rights Code.

It is possible that a tenant could apply to the Human rights Tribunal on the basis that the landlord did not take reasonable steps to resolve a problem of second-hand smoke infiltrating the tenant’s unit from a neighbouring unit. A tenant who suffers from a disability that is exacerbated by second-hand smoke, such as asthma or allergies, could take the position that the landlord has a responsibility to limit or ban smoking in order to accommodate the tenant’s disability.

To date there have been no human rights cases that have 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. For further information see the legal opinion in this section of the website.