Is addiction to nicotine a disability? If so, do Strata Corporations have to make accommodations for smokers when adopting a non-smoking bylaw?
The Charter of Rights and Freedoms does not recognize addiction to nicotine as a disability, and there is legislative support to enact and enforce Smoking Prohibition Bylaws. However, there is also case law to challenge them, and this case law should be considered when drafting such a bylaw. This section is not exhaustive, and only deals with section 8 of the Human Rights Code (discrimination in accommodation, service and facility). It is recommended that the legal opinion be reviewed in its entirety for a complete analysis of the challenges.
Courts, Tribunals and Arbitrators have adopted a broad approach to what constitutes a physical disability under the Human Rights Code. It was broadened even further with respect to nicotine-addicted individuals following a Labour Relations Board case in BC between Cominco smelter operator and its union in 2000.
At issue in Cominco was a smoking policy that banned the use and possession of tobacco on company property, and didn’t allow sufficient time for staff to leave the property on breaks to smoke. The Union argued that nicotine addiction constituted a disability under the Human Rights Code. They contended the policy discriminated against smokers because if they could not control their addiction, they would lose their jobs. The Union argued that addicted smokers must be accommodated in ways that would permit them to continue to work, and permit them to smoke in an outside area, while taking steps to ensure that the smoke didn’t contaminate the environment of others.
The Arbitrator acknowledged that the Courts have not found nicotine addiction to be a disability as a ground for protection under the Charter, but he held it was within the meaning of physical disability under the Human Rights Code. The Arbitrator determined that there was no inherent right to smoke, but referred the matter back to the parties for further discussion on accommodating the heavily addicted smokers up to the point of undue hardship. Cominco’s smoking ban remains in effect today.
It should be noted that the Arbitrator recognized that the increase in public smoking policies was meant to protect others from the harmful effects of second-hand smoke. Further, the trend toward establishing smoking policies is consistent with the position that while smoking is a legal activity, it should not be carried out in places where the smoke might harm others.
Regarding Smoking Prohibition Bylaws in strata complexes, smoking should only be banned in areas where non-smokers are put at risk, and this means that each strata council needs to examine what provisions will offer appropriate protection based on the layout of the complex and the residents. A Smoking Prohibition Bylaw can include provisions that allow for accommodation of residents who are addicted to nicotine. Depending on the situation, accommodation can take a variety of forms, such as providing a covered area outdoors where smoking would be allowed