"This is only the most recent example of nonsmoking tenants and condo owners successfully using legal action to protect themselves from tobacco smoke from neighboring units drifting into their homes," says public interest law professor John Banzhaf, who pioneered this technique for protecting nonsmokers' rights, and helped develop many of the legal theories under which the legal actions are brought.
Ironically, Banzhaf also helped to sandbag a complaint brought before the same tribunal by a smoker who claimed that she had been discriminated against because of her “status as smoker” or “tobacco user.”
Banzhaf argued that smokers or tobacco users enjoyed no protections under Canadian human rights laws even if addicted, since their addiction was to nicotine and not to smoking, and those who claimed an addiction to nicotine could satisfy their craving without smoking by using nicotine patches, gums, sprays, etc.
The legal duty of condo and apartment owners to accommodate nonsmokers under Canadian law is spelled out in greater detail in http://www.ohrc.on.ca/
Apartment dwellers bothered by tobacco smoke drifting or recirculating into their apartment or condo can sue both the smokers and the owners/operators of the complex under a variety of legal theories, says Prof. Banzhaf.
These causes of action include trespass to land by particles, breach of the covenant of quiet enjoyment, nuisance, discrimination against persons with disabilities under the Americans With Disabilities Act [ADA] and other statutes, battery, and negligence, as well as for any violations of state or local laws, terms or agreements in leases or condo documents, etc.
Indeed, a growing number of jurisdictions have banned smoking in private apartments, notes Banzhaf. http://www.prlog.org/
In short, if a man's home were ever his castle where he could smoke whenever he wished, that principle no longer applies in the 21st century, where smoke can and does drift, and re-circulate through common venting systems, into other people's castles where, according to the Surgeon General and other federal agencies, even a minute amount can present serious health hazards, concludes Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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