Can the City of Burlington Ban Smoking in Private Multi-Dwelling Units?

My office recently received a letter from a resident asking if the City of Burlington could do anything to prohibit smoking in private multi-dwelling units.This is a serious health issue, and I appreciate the advocacy of any and all residents on this issue. Unfortunately, the City has no legal tool to prevent smoking in private residences at this time.Under the Smoke-Free Ontario Act, 2017, smoking is prohibited in the common areas of enclosed public spaces — that includes the common areas of private and municipally-owned multi-unit buildings. However, the Smoke-Free Ontario Act, 2017 does not apply to private self-contained living quarters in a multi-unit building.Under the Municipal Act, 2001, municipal governments have the authority to prohibit smoking in public places within their geographic limits and to create smoke-free bylaws that exceed Ontario’s smoke-free legislation. For example, on April 1, 2014, the smoking of tobacco was prohibited on all City of Burlington parks and recreation properties as per our By-law 92-2013.In addition, individual landlords have the ability to prohibit smoking in private units by including no-smoking clauses in new tenancy agreements. A legal opinion obtained by Smoke-Free Housing Ontario confirmed that a landlord cannot change an existing tenancy agreement without the approval of the tenant under the Residential Tenancies Act, 2006. This means that existing tenants are grandfathered (exempted) from the smoke-free policy unless they voluntarily sign a new tenancy agreement with a smoke-free clause.Finally, we have looked into the Waterloo’s activities, and found that municipalities involved in the ownership and/or operation of social housing have the authority to create policies that prohibit smoking in private units of those publicly-owned and operated units. For example, the Region of Waterloo Community Housing Inc. implemented a smoke-free policy for all new tenancy agreements on April 1, 2010.  This policy applied to new tenancy agreements only, in alignment with the legal opinion mentioned above.So, the tools exist to prohibit smoking in public areas, public housing, and new buildings, but there are no legal tools presently to allow a municipality to prevent exposure to second hand smoke in existing, multi-unit private apartments. (Condo boards can make their buildings smoke free).But, I do share the concerns of some residents who are subjected to second hand smoke in their own apartment that drifts into their unit through the ventilation system from other private dwellings in their building. I am advocating that the province give municipalities tools to deal with second smoking entering private units in multi dwelling buildings and have raised this issue in letters to the 3 MPPs whose ridings cover Burlington — click the link for the letter: Letter to MPPs - Smoke Free Housing Sept 30 2019) and I encourage residents to write to their respective MPP with their concerns and suggestions as well.

• Burlington MPP Jane McKenna: 905-639-7924; jane@janemckennampp.ca; Constituency Office - 472 Brock Ave., Ste. 104, Burlington, ON, L7S 1N1;
• Oakville North-Burlington MPP Effie Triantafilopoulos: 905-825-2455; effie.triantafilopoulos@pc.ola.org; Constituency Office - 2525 Old Bronte Rd., Unit 570, Oakville, ON, L6M 4J2;
• Milton MPP Parm Gill: 905-878-1729; parm.gill@pc.ola.org; Constituency Office - 400 Main St. E., Unit 206, Milton, ON, L9T 4X5.

I will also be sure to raise this issue at our next Association of Municipalities Ontario (AMO) Annual Conference next year.