The applications listed below were made by landlords who had no no-smoking policies in place. Most of the applications cite interference with the reasonable enjoyment or lawful right, privilege or interest of the landlord.
Ontario Landlord and Tenant Board , 2009 (File # EAL-13845)
The landlord applied for an order to terminate the tenancy and evict the tenants because they, or another occupant or guest had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a complex with three or fewer units.
The landlord claimed the tenants made too much noise and that their cigarette smoke bothered him. There was no no-smoking policy in place and the landlord provided no other evidence. The application was denied.
Ontario Landlord and Tenant Board, 2009 (File # TSL-20395)
The landlord applied for an order to terminate the tenancy and evict the tenant because:
- The tenant seriously impaired the safety of any person; and
- The tenant did not comply with the terms of their earlier mediated settlement to pay the rent owing.
The landlord alleged that in response to his request to stop smoking in the unit, the tenant uttered threats of bodily harm against the landlord and other tenants. The tenant conceded that he was upset about the smoking issue.
Because the rent was still in arrears, the adjudicator granted the landlord's request to re-open the application. The adjudicator determined that the tenant seriously impaired the safety of other persons and ordered the tenancy terminated. The adjudicator also granted compensation to the landlord for rent owing, for the use of the unit until he moves out and for the cost of filing the application. The landlord was also granted permission to file the order with the Sheriff to enforce the eviction, if necessary.
Ontario Landlord and Tenant Board, 2009 (File # SOL-18082)
It is not clear if the landlord had a no-smoking policy in place. The landlord applied for an order to terminate the tenancy and evict the tenant because she or another occupant or guest substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.
The adjudicator determined that the N5 application, Notice of Termination, did not contain sufficient details (including dates and times that the tenant was smoking in the rental unit) and was therefore void. The adjudicator referred to Ball v. Metro Capital Property (2002)--a binding case from Divisional Court. The application was dismissed.
Ontario Landlord and Tenant Board, 2008 (File # CEL-09021 & CEL-10081)
This issue was brought before the board in two separate applications, one month apart. The first application was dismissed for lack of information, so the landlord brought evidence and his agent to support his application for the second hearing.
The landlord leased his basement apartment to tenants. He applied for an order to terminate the tenancy and evict the tenants claiming interference with reasonable enjoyment. He cited the smell of cigarettes as a cause of serious health issues to him and his family, and that the tenants had damaged the unit.
At the hearing the landlord stated that the police had been called to the unit on six occasions. This claim, or the particulars of the alleged smoking such as dates and times that it had taken place, were not mentioned in the notice. The adjudicator determined that in the case of Ball vs. Metro Capital, the Court found a notice of termination deficient when it fails to provide details about the reasons for the eviction notice. As no details were provided in the notice, it was ruled defective and therefore void. The landlord did not submit evidence to indicate that second-hand smoke was causing serious health issues to his family, nor did he provide proof of damage. The landlord’s application was therefore dismissed.
A month later the landlord applied for an order to evict the tenants again. This time he brought the application forward because of non-payment of rent, damage to the premises and interference with reasonable enjoyment, among other reasons. He claimed that smoking had taken place in the unit and produced an advertisement from the newspaper describing the unit as ‘no-smoking’. He also submitted a letter from his doctor stating the deteriorating medical conditions of his family were a result of inhaling second-hand smoke from the basement apartment. The tenants did not appear at the hearing to defend the application.
The landlord’s agent addressed the concerns that arose in the previous hearing from the case law of Ball vs. Metro Capital. The adjudicator agreed with the agent’s rationale that no details with regards to date and time were possible given that smoking occurred in an area under the exclusive possession and control of the tenants.
In his decision the adjudicator found that the tenants’ conduct had substantially interfered with the landlord’s and his family’s reasonable enjoyment, and had adversely impacted upon their health. He ordered the tenancy to be terminated, and the tenant to pay the landlord rent owing, compensation plus the cost of filing the application. The adjudicator also ruled that his order was ‘non remedial’ – meaning that the notice of eviction was in effect even if the tenants paid costs and their overdue rent.
Ontario Landlord and Tenant Board, 2007 (File # TEL-00016)
The landlord applied for an order to terminate the tenancy and evict the tenant because he, another occupant of the rental unit or a person the tenant permitted in the complex has seriously impaired the safety of any person.
The landlord alleged that the tenant, who lives upstairs, smokes occasionally which poses a health hazard for her family. The landlord testified that her husband's health is vulnerable due to medical complications, and that the tenant leaves his window open exposing her family to cold drafts. The landlord also alleged aggressive behaviour on the part of the tenant.
The tenant did not deny smoking in the unit and testified that he has complied with her warnings and requests to shut the window. The adjudicator was not satisfied that the tenant's behaviour constituted serious impairment of the landlord's safety and therefore dismissed the application.
Ontario Rental Housing Tribunal, 2003 (File # TSL-52189)
The landlord, who had recently bought a house with a pre-existing basement tenant who smoked, claimed that her tenant’s second-hand smoke was substantially interfering with her reasonable enjoyment of the house. There was no written lease and no oral agreement that addressed the issue of smoking.
The adjudicator ruled that, despite the tenant having a prima facie right to smoke owing to the lack of a no-smoking rule, the landlord’s reasonable enjoyment of the house had indeed been interfered with and that she had a right to be free of the risks of smoking in her unit. The adjudicator ordered that the landlord would be able to obtain an eviction order for non-compliance.
Read the decision.
Ontario Rental Housing Tribunal, 1999 (File # TEL-04742)
The landlord applied to evict the tenant from her basement apartment claiming that rent payments were in arrears, and that the tenant had seriously impaired her safety and/or had interfered with her reasonable enjoyment by smoking. The tenancy agreement was oral and there was no reference to a ban on smoking. The landlord gave evidence that she had allergies, and her adult daughter stated that the smoke caused the landlord some skin dryness and discolouration, sleeplessness and anxiety. No medical evidence was provided to support this claim.
In his determinations the adjudicator stated that a serious allergic reaction suffered by the landlord in these circumstances may justify termination, but that in this case there was an absence of evidence (no medical report or letter from a doctor). He further commented that the symptoms described are not generally known to the public as a consequence of exposure to second-hand smoke. He also noted that:
- The Act provides for termination where an animal causes a serious allergic reaction, which is a limitation on the right of a tenant to otherwise keep a pet; and
- By analogy, it is arguable that a landlord should be able to terminate for smoking even when the tenant otherwise has a right to smoke in his unit, if it causes a serious allergic reaction.
The adjudicator ruled that the tenancy be terminated unless the tenant paid the landlord back rent and costs for filing the application. If the tenant paid the costs as described within the time-frame stated, the order for eviction would be void and the tenant could remain.
Read the decision.
Ontario Rental Housing Tribunal 1998 (File # TEL-01084 & 2000 File # TEL-14875)
The landlord made 2 applications to terminate a tenancy and evict the tenants over a two-year period. In 1998 the landlord applied for an order to terminate the tenancy and evict the tenant because second-hand smoke from the tenant’s rental unit traveled into the landlord’s living quarters and impaired the safety of her daughter. Her daughter suffers from an undisputed medical condition and is highly sensitive to smoke.
This application had been re-opened because the tenant failed to meet the terms of a mediated settlement. It was now ordered that smoking be strictly prohibited in the rental unit, and that any non-compliance would result in the landlord being at liberty to apply to the Tribunal, without notice to the tenant, to terminate the tenancy and evict the tenant.
In 2000 the landlord applied for an order to evict the tenants because they had failed to meet the condition issued in the above ruling that stated ‘smoking in the rental unit is strictly prohibited.’ The landlord failed to present evidence that the tenants had breached the condition and that the smell of smoke came from their apartment, not from where the landlord allowed smoking on the front and back porches. The adjudicator dismissed the landlord’s application.
Read the decision.