Most of the tenant applications listed below are for orders recognizing breach of reasonable enjoyment by the landlord.
Ontario Landlord and Tenant Board, 2009 (File # SWT-01948)
The tenants applied for an order determining that their landlord had substantially interfered with the reasonable enjoyment of their rental unit by failing to ensure a smoke-free environment. The tenants stated that because they saw no-smoking signs posted in the common areas they believed that smoking was also prohibited in the private units. Further, the tenants alleged that four months after moving into their unit, smokers moved into the unit below theirs and second-hand smoke began infiltrating their unit through the ventilation system.
The adjudicator noted that the Smoke-Free Ontario Act does not prohibit smoking in private units of a multi-unit building, and that the tenants' assumption was no fault of the landlord's. The adjudicator noted that "Without proof that the landlord has breached a specific legal obligation, the landlord cannot be held liable for allowing other tenants to do what is, at least presently, lawful in this province" and "Expecting others at the complex to stop doing what is not illegal cannot be considered 'reasonable' use or enjoyment." The application was dismissed.
Ontario Landlord and Tenant Board, 2009 (File # SOT-01937)
The tenant applied for an order determining that the landlord harassed, obstructed, coerced, threatened or interfered with him and entered his unit illegally. The tenant lived in the same unit for 8 years and pre-dates the landlord. The tenant alleges that when the new landlord took over the building, the landlord's agent repeatedly asked him to stop smoking in the unit and even collected petitions against his smoking. The tenant also alleged that the landlord entered the unit with an electrician after a fire and took photographs without permission which were subsequently used against him in an unsuccessful eviction application.
The adjudictor determined that:
- Smoking can be prohibited in a tenancy agreement, but breach of a no-smoking policy is not a ground on which a landlord can apply to terminate a tenancy - smoking has to do something more such as interfere with reasonable enjoyment or a lawful right, impair safety, constitute an illegal act or cause damage;
- Repeatedly asking the tenant to stop smoking in the unit in the absence of substantial interference constitutes harassment;
- Collecting petitions against the tenant constitutes harassment; and
- Taking photographs of the tenant's unit without notifying the tenant in advance of the photography breaches the tenant's privacy.
The adjudicator granted the tenant's application and ordered the landlord to refrain from harassing the tenant about smoking in his unit. The tenant was awarded $100 as compensation for mental distress caused by breach of privacy.
Ontario Landlord and Tenant Board, 2009 (File #TST-01938)
In this case the tenant applied for an order determining that the landlords harassed, obstructed, coerced, threatened or interfered with her and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the tenant or by a member of her household. The tenant applied for a rent abatement in the amount of one month's rent, seeing as she had hastily moved out of the unit shortly after realizing it was filled with second-hand smoke from the landlords' unit upstairs.
This case is based upon a misunderstanding over whether smoking was permitted in the building or not. The landlords alleged that the tenant asked if she could smoke in the building. The tenant alleged that she asked if the building was smoke-free. There was no mention of smoking in the lease.
Because she did not want to stay in the unit and be exposed to the smoke, the tenant stopped payment on her rent cheque, which angered the landlords. The landlords in turn threatened to change the locks if the tenant didn't move out by a certain date.
The adjudicator granted the tenant's application and agreed that the landlords had substantially interfered with her reasonable enjoyment--not for the involuntary exposure to second-hand smoke, but for threatening to lock her out of the apartment.
Ontario Landlord and Tenant Board, 2009 (File #s TST-01913 & TSL-20119)
In this case the tenant applied for an order to determine that the landlord harassed, obstructed, coerced, threatened or interfered with him and entered his unit illegally. The tenant complained about second-hand smoke in his unit and had told the landlord in writing that he would move out if the landlord could not provide a smoke-free environment. The landlord then applied for an order to terminate the tenancy and evict the tenant because the tenant did not pay the rent he owes.
There is no evidence that the landlord had a no-smoking policy, or that the building was smoke-free. The tenant testified that second-hand smoke was coming into his unit through the ventilation system from another tenant's apartment. The tenant entered into evidence a letter signed by a third party attesting to the smell of smoke in the apartment. The adjudicator determined that because the author of the letter was not present at the hearing and could not be cross-examined, the evidence was hearsay and held little weight. The tenant also produced a letter from his doctor stating that he has allergic sinusitis caused by exposure to airborne chemical irritants.
The adjudicator determined that because the tenant had told the landlord when he moved in that he didn't smoke, he was under the impression that the building was smoke-free. It was not.
The adjudicator determined that:
- The landlord substantially interfered with the tenant's reasonable enjoyment for failing to respond to his complaints about second-hand smoke;
- The landlord illegally entered the tenant's unit for repair work;
- The tenant owed rent.
The adjudicator ordered that the tenancy be terminated and that the tenant move out by a certain date. She also ordered that the tenant pay the rent owing and the landlord's cost of filing the application, minus a rent abatement of 10% for the substantial interference of reasonable enjoyment as well as for the illegal entries.
Ontario Landlord and Tenant Board, 2008 (File # SWT-01191)
The tenant applied for an order determining that his landlords, among other things, substantially interfered with his reasonable enjoyment of the rental unit or residential complex. The tenant alleged that the smell of second-hand smoke from the downstairs unit was infiltrating his unit to the point that he was feeling ill and could not stay in the unit during the day. The tenant produced into evidence a letter from his family doctor documenting his complaints of headache and sore throat.
The landlords communicated to the tenant, in writing, that the unit has its own furnace and venting system, and that they cannot control any other aspect of air contamination. Further, the landlord's letter stated that the other tenant denies smoking in the unit and the matter is considered closed. However, despite the letter, the landlords purchased smoke filters for the ventilation systems of both rental units and inspected the tenant's rental unit.
The adjudicator determind that:
- The tenant bears the burden of proving the claims of his application on a balance of probabilities--and that the tenant did not have an inspection done by a municipal authority or other agency, did not provide independent evidence of the conditions of his unit and the letter from his physician did not definitively link his health problems to the presence of second-hand smoke in his apartment; and
- The landlords responded reasonably to the tenant's complaints.
The application was dismissed.
Ontario Landlord and Tenant Board, 2008 (File # TST-02042)
The tenant applied for an order that the landlord had substantially interfered with the reasonable enjoyment of the rental unit. The tenant also applied for a rent abatement, termination of the lease before the end of the term and moving expenses.
The tenant, severely allergic to second-hand smoke, claimed to have moved into the unit based on the fact that the building was non-smoking. The tenant signed a lease with a no-smoking clause. The tenant claimed he is continuously exposed to second-hand smoke from the unit below which affects his breathing. He alleges to have asked the landlord repeatedly to enforce the no-smoking policy.
The adjudicator agreed that involuntary exposure to second-hand smoke substantially interferes with the tenant's reasonble enjoyment of the unit, and that the landlord did not do enough to fix the problem.
The adjudicator granted the tenant a lump sum rent abatement, as well as a 20% rent abatement commencing approximately one month later until such time as the tenant's involuntary exposure to the smoke ends. The adjudicator also ordered that if the landlord does not stop the tenants in the unit below from smoking, the tenant may apply to the Board to break his lease.
Ontario Landlord and Tenant Board, 2008 (File #s CEL-04002-RV-RV, CET-00274-RV-RV, & CET-00278-RV-RV)
This dispute took place over a year, and involved claims, counter claims from both the landlord and the tenant, and a request for a review and the subsequent cancellation of two prior Board rulings that were replaced by a final decision.
The landlord applied for an order to evict the tenant for the purpose of residential occupation, and the tenant claimed the apartment was in disrepair and that the landlord had substantially interfered with her reasonable enjoyment by not making repairs to damaged windows, screens, heating and plumbing (among other things), and by failing to ensure that second-hand smoke did not enter her apartment.
The adjudicator ruled that the tenant was entitled to a rebate rent from the landlord, plus filing fees. Among other findings, he stated that the landlord could have been more proactive in dealing with the second set of tenants living below the tenant initiating the claim. Both the new tenants smoked and were not amenable to the landlord’s request that they smoke outside, as the previous tenant had done. Therefore the enjoyment of the rental unit was substantially interfered with due to exposure to second-hand smoke, and the tenant was entitled to a rent rebate.
Ontario Landlord and Tenant Board, 2007 (File # EAL-00666 & EAT-08083)
In this situation, two applications were considered at the same time. The tenant applied for an order determining that the landlords had substantially interfered with her and her daughter’s reasonable enjoyment by failing to prevent second-hand smoke from infiltrating her rental unit. Coincidentally, the landlords applied for an order to terminate the tenancy at the same time, citing they needed the unit for their parents.
Although the adjudicator accepted that second-hand smoke is harmful to health, he questioned the tenant’s credibility and concluded that there had been no breach of the covenant of reasonable enjoyment. Finding the landlords’ application had been made in good faith, the adjudicator terminated the tenancy, allowing the tenant to remain until the end of the school year.
Ontario Landlord and Tenant Board, 2007 (File # TET-00205)
The tenants applied for an order determining that their landlord had substantially interfered with their reasonable enjoyment because they were unable to enjoy their balcony due to second-hand smoke from their downstairs neighbour. The landlord did not have a no-smoking policy in place.
The adjudicator determined that the tenants failed to demonstrate that their involuntary exposure to second-hand smoke on their balcony constituted substantial interference with reasonable enjoyment. Although the adjudicator sympathized that the tenants were displeased about the smoke, he noted that smoking is still permitted in outdoor public places. The case was dismissed.
Ontario Landlord and Tenant Board, 2007 (File #SOT-00739)
The tenants applied for an order determining that the landlord had substantially interfered with their reasonable enjoyment of the rental unit because of second-hand smoke entering their unit from the unit above. The tenants have a young son who suffers from asthma and a heart murmur, and because of the smoke he no longer sleeps in his own room. There is no no-smoking policy at this building.
The City of Hamilton Property Standards Office, when contacted, recommended an air quality study to confirm the presence of second-hand smoke. The estimated cost was $300, which the tenants found too expensive and therefore never followed through on.
The landlord offered the tenants the option of moving to another unit within the complex or to another complex owned by the landlord, but it was the tenants' position that a move would not guarantee a smoke-free environment.
The adjudicator determined that the tenants did not provide enough evidence to support that the landlord had substantially interfered with their reasonable enjoyment of the unit. Noting that the tenants neither followed through with the air quality test nor opted to move, the adjudicator concluded that there was insufficient evidence to support the claim of second-hand smoke in the unit and dismissed the case.
Ontario Rental Housing Tribunal, 2006 (File # SWL-79098)
This application was filed by a tenant who smoked in his unit which was located in a smoke-free building. He had been served two eviction notices issued several months prior to this application. He was now applying to have his eviction order dismissed without a hearing, with his agent claiming that the notice failed to contain specific details describing his alleged offensive conduct. His agent cited Divisional Court’s decision Ball vs. Metro Capital Property stating that particulars should include dates, times and other details of the alleged conduct engaged in by the tenant so that they would know the case they had to meet.
The adjudicator mentioned that the two prior notices to evict the tenant for smoking in his rental unit in a smoke-free building and substantially interfering with the reasonable enjoyment of other tenants in the complex had been issued several months prior to this hearing. He was not prepared to dismiss the application based upon Ball vs. Metro Property due to a lack of details, as the particulars were set out in the endorsement finding that reasonable enjoyment and harassing building staff had occurred. He cited Divisional Court’s decision Kuyzk vs. SK Properties (2001) O.J. No. 5260 where the tenant was not mislead regarding the allegation against him given he admitted smoking in his unit, and was aware of the effects upon his neighbours.
He therefore denied the tenant’s request to not hear the application.
However, the adjudicator dismissed the application and deliberated that to grant an eviction and rule in favour of the landlord, he would have to reach positive findings of fact under section 67 of the Tenant Protection Act that the landlord had not followed. He noted that the tenant admitted that the smoking never stopped, but the landlord did not make application within 30 days of the date specified in the notice (see section 44 of the Tenant Protection Act).
Ontario Rental Housing Tribunal, 2006 (File #SWT-08000)
The tenants filed an application stating that their landlord had interfered with their reasonable enjoyment of their apartment by failing to control the cigarette smoke that was entering their unit from a neighbour’s unit. The tenants, one of whom had serious allergies and asthma, had selected the building to live in based on a newspaper advertisement stating that the building was “smoke-free and pet-free.” The tenants wanted orders to force the landlord to:
- Close off the duct work from the air exchange system and remove the pipes from the apartment where the second-hand smoke originated;
- Install wall-mounted units for air exchange and humidity; and
- Restore the status of the building as “smoke free” and “pet free.”
The tenants’ application was dismissed. Although the adjudicator accepted that second-hand smoke could constitute a breach of the covenant of reasonable enjoyment, he concluded that the evidence did not support it in this case (the tenant in the other unit claimed that she had quit smoking). The adjudicator stated it would be inappropriate to make the building smoke-free without adding the other tenants to the application. He further stated that the no-smoking requirement in their lease was not applicable to the other leases and that there was no universal smoke-free standard to uphold.
Ontario Rental Housing Tribunal, 2002 (File # TST-04468)
This case was heard three times over five months. The tenant had applied for an order that the landlords failed to meet their maintenance obligations or comply with health, safety, housing or maintenance standards and interfered with her reasonable enjoyment. Second-hand smoke penetrating the tenant’s apartment from another tenant was one of many other complaints such as a poorly working fridge, a blown electrical fuse, and excessive noise from a furnace requiring that a switch be turned off.
The adjudicator dismissed the application without costs as he determined that neither of the leases signed by the tenant described the complex as no-smoking, and there was no emergency, no history of serious breach and no ongoing serious breach.
Ontario Rental Housing Tribunal, 2002 (File # TST-04047)
In this case the tenant complained, among other things, that the landlords had failed to meet their maintenance obligations and take reasonable steps to prevent tobacco smoke and noise from entering her apartment from the barber shop below. The adjudicator agreed that both the smoke and the noise substantially interfered with the tenant’s reasonable enjoyment of the rental unit and ordered the landlords to repair the floor.
The adjudicator awarded the tenant a rent abatement as well as financial compensation for the cost of filing the application. The adjudicator further stated that if the problem resumed, the landlords must take whatever steps are reasonably necessary to ensure that second-hand smoke does not enter the tenant’s apartment.
Ontario Rental Housing Tribunal, 2003 (File # TNT-03370)
Following the case above, the same tenant returned to the Tribunal to apply for an order determining that the landlords had substantially interfered with her reasonable enjoyment by failing to take adequate steps to prevent noise and tobacco smoke from entering her apartment. Despite the fact that a renovation of her floor had been completed, the tenant maintained that smoke was still coming into her unit.
The adjudicator stated that the tenant was not allergic to tobacco smoke and that she had failed to produce reliable, objective medical evidence to substantiate her claim that her dust allergy was worsened by second-hand smoke. In addition, the adjudicator stated that the tenant had offered no evidence about the quantity of second-hand smoke in her unit or whether the presence of the smell of second-hand smoke indicated the presence of potentially dangerous substances. The application was dismissed with the adjudicator emphasizing how the tenant had failed to provide objective evidence to substantiate her claims.