Frequently Asked Questions
Is a smoke-free policy legal for cooperatives?
Yes. It is perfectly legal for cooperatives to make their buildings smoke-free. Nothing in the Cooperatives Act prevents a cooperative from prohibiting smoking as part of its bylaws. In fact, housing cooperatives have power to develop and enact broad bylaws. The exact procedure for amending bylaws may vary from cooperative to cooperative because individual cooperatives have the authority to create amending rules. The first step for any co-op member interested in proposing a new bylaw is to check for any amending process written into their cooperative bylaws.
Legal information provided on this site is based on a professional legal opinion available here.
If smoking is legal, how can cooperatives ban smoking in private residences?
A cooperative has the ability to develop bylaws that protect the health and safety of residents, and protect their property, as long as the policy does not conflict with federal or provincial laws. Adopting a smoke-free policy is similar to adopting other policies, such as a no-pets or no-barbecues policy.
Legal information provided on this site is based on a professional legal opinion available here.
Are there any existing smoke-free laws in Alberta that would already apply to cooperatives?
Yes. The Alberta Tobacco and Smoking Reduction Act prohibits smoking in any structure or other enclosed common area of a multi-unit residential facility to which members of the public have access. This includes common patios, pools, other recreation areas, and enclosed parking garages.
The Act also prohibits smoking within five metres of a doorway, air intake or window that can be opened. Some municipalities may have established larger smoke-free buffer zones around windows and doorways, and may also include buffer zones around public parks and trails.
It is the responsibility of the cooperative to enforce provincial tobacco laws affecting its property. When implementing a smoke-free policy, be sure that any designated smoking areas do not infringe upon spaces designated as smoke-free under provincial or municipal law.
Legal information provided on this site is based on a professional legal opinion available here.
Is smoking a disability that cooperatives with a smoke-free policy would have to accommodate under the Canadian Charter of Rights and Freedoms or the Alberta Human Rights Act?
This issue has been considered numerous times throughout the years, and Canadian courts have consistently ruled – with one exception – that addiction to nicotine is not a disability. The one exception was a British Columbia labour-arbitration decision in an employment context. Cominco had banned smoking on the plant site, and while the labour-arbitration board found that heavily addicted smokers were disabled, it also recognized that the employer’s smoke-free policy was reasonable and adopted to protect staff from a known hazard. The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers. Cominco’s smoking ban remains in effect today.
In a residential situation, even if people who smoke were found to be a protected group on the basis of their addiction, they would be under a duty to co-operate with alternative solutions for their addiction that do not expose neighbours and bystanders to harmful second-hand smoke. This could include smoking outside or obtaining nicotine through alternative means that do not emit second-hand smoke, such as nicotine gum, nicotine lozenges or nicotine inhalers.
There is no legal precedent to repeal a smoke-free policy to accommodate a resident with a nicotine addiction.
Legal information provided on this site is based on a professional legal opinion available here.
Is the ceremonial use of tobacco a religious right for indigenous peoples that co-operative with a smoke-free policy would have to accommodate under the Canadian Charter of Rights and Freedoms or the Alberta Human Rights Act?
Yes, the way the law reads it seems clear that accommodation is required, however, the issue has never been tried in an Alberta court.
Indigenous people have been using traditional or sacred tobacco for thousands of years. Traditional or sacred tobacco differs from commercial tobacco in that it is used in a variety of ways including ceremonial or sacred rituals for healing and purifying and in social customs where it is given or
exchanged as a sign of respect. Traditional or sacred tobacco is grown and dried without additives. For more information on traditional tobacco please visit tobaccowise.com.
The ceremonial use of tobacco is not exempt from smoke-free policies in multi-unit housing unless explicitly stated. However, under human rights legislation all Albertans are under a duty to accommodate the religious beliefs and practices of others. The duty to accommodate goes both ways, as such any resident(s) using tobacco for ceremonial purposes should ensure they are not causing other residents undo harm. Tips for supporting the ceremonial use of tobacco include:
- Engaging the resident(s) to understand their ceremonial use of tobacco.
- Learning the duration and frequency of intended ceremonial tobacco use.
- Finding ways to accommodate ceremonial tobacco use that does not expose other residents to secondhand smoke exposure. For example, if possible recommend outdoor use and remove any barriers that might inhibit the ceremony from taking place outdoors.
- If the ceremonial use of tobacco is to be used indoors, establish a communication system to inform other residents about the ceremonial use of tobacco in order to avoid complaints and bridge any religious or cultural misunderstandings.
Legal information provided on this site is based on a professional legal opinion available here.
What would the penalties be for non-compliance with a smoke-free policy?
Enforcement of a smoking prohibition in a housing cooperative would generally take the form of terminating the membership of those who persistently smoke or permit smoking where it has been prohibited. The two different types of housing cooperatives (continuing-housing cooperatives and home-ownership cooperatives) each have slightly different rules for terminating a membership, but both require repeated offences, a vote on the termination, a notice period for the member in question and a three-quarter supermajority of the votes cast.
The bylaws of the housing cooperative may modify or add steps to procedures for terminating a membership, and all are required to develop dispute settling procedures that would include a mediation process. In every case it would be important to consult the cooperative bylaws.
Legal information provided on this site is based on a professional legal opinion available here.
Where can I find more information about smoke-free housing?
This website is full of information about smoke-free policies, including the benefits of a smoke-free environment and how to go about creating a policy for your building. There are also many tools and resources to help you throughout the process.
For more detailed information, download our comprehensive guidebook on smoke-free policies for housing cooperatives or contact us to order a print copy.
