What could I apply for at the Board, and what could the Board order my landlord to do?

Section 29 of the Act lists orders for which a tenant or former tenant (you have up to a year after the alleged conduct giving rise to your application) may apply to the Board. In terms of involuntary exposure to second-hand smoke, most of the tenant applications (case law) we've reviewed pertain to a breach of reasonable enjoyment (section 29 (1) 3.).

If you file a T2 form (Application About Tenant Rights) citing breach of reasonable enjoyment, you can ask the Board to order one or more things:

• The landlord must pay me a rent abatement (reduction);
• The landlord, the landlord's agent or the superintendent must stop the activity that led me to make this application;
• The landlord must pay a fine to the Board;
• The tenancy be terminated on a certain date;
• The landlord, landlord's agent or superintendent must pay me compensation for my repair or replacement costs;
• The landlord must pay me compensation for the increased rent I have had to pay or will have to pay for the one year period from the date I moved out of the rental unit;
• The landlord must pay me compensation for my expenses for moving, storage, etc.;
• The landlord must pay me compensation (for other expenses);
• Other.

In previous cases the Board has ordered landlords to make repairs to seal units to try to prevent second-hand smoke from infiltrating other units, to provide rent abatements, etc. Be sure when you make your application that you are requesting an order that the Board has the jurisdiction to make. For example, see tenant application SWT-08000. Here is a list of factors that an adjudicator may consider when deciding on the merits of your case:

1. What evidence does the tenant have that smoke is entering the unit?
2. Is the amount of smoke frequent, ongoing and a significant interference with the tenant’s use or enjoyment of the unit?
3. Is the smoke affecting the health of the tenant?
4. What steps did the tenant take to minimize the smoke entering the unit or to rectify the problem?
5. If the landlord was aware of the problem, and there was evidence of significant smoke infiltration, did the landlord take reasonable steps to correct the problem?

What is reasonable enjoyment?

In every tenant and landlord relationship there exists the covenant of the right to reasonable enjoyment, even if you have not signed a lease. Reasonable enjoyment is the right:

“to take possession, and to be protected against interference with the tenant’s use and enjoyment of the premises by the landlord or others claiming under the landlord” (Bruce Ziff, Principles of Property Law, 3rd ed., 2000).

Section 22 of the Residential Tenancies Act, 2006 states that:

A landlord shall not at any time during a tenant's occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

To be considered substantial, an interference must be so severe that you are not able to use the premises in a normal way, or in a way you expected when you rented the unit. In 1976 the Ontario Law Reform Commission established parameters to help determine if reasonable enjoyment has been breached:

1. Alleged breaches must be committed by the landlord or by someone claiming under the landlord (i.e. another tenant);
2. Alleged breaches must substantially interfere with the normal enjoyment of the premise; and
3. Alleged breaches must be more than a temporary inconvenience or a matter or personal annoyance.

There is no concrete list nor universal consensus on what constitutes a breach of reasonable enjoyment, although noise, vibrations, odours, threats, fire, withholding heat, electricity, water, gas, etc. are all common examples. Although a breach can’t be a one-time or isolated occurrence, it doesn’t necessarily have to be continuous but can be intermittent.

Does involuntary exposure to second-hand smoke count as a breach of my right to reasonable enjoyment?

It depends. In certain circumstances, involuntary exposure can definitely constitute a breach. See the case law section for examples.

Of the case law dealing with second-hand smoke that we've reviewed, applications citing a breach of reasonable enjoyment are common. However, although these cases indicate a certain level of theoretical agreement about second-hand smoke qualifying, on a practical level adjudicators have reached different conclusions. Much depends on the specific situation and how persuasively you (or your representative) can make the argument. Adjudicator hearing an application must balance rights--those of the smoker and/or landlord versus those of the person being exposed to second-hand smoke.

Simply having second-hand smoke present in your unit would likely not be enough to successfully argue a breach. To prove that second-hand smoke has caused a loss of reasonable enjoyment, evidence must be strong and compelling. The onus is on you to provide proof that the amount of smoke is frequent, on-going and significantly interfering with your use and reasonable enjoyment of the unit. This is not always easy to do, as there are no guidelines for what amount of smoke entering a home is considered significant or unreasonable. You have to demonstrate how the presence of second-hand smoke is preventing you from using your apartment in a normal way, or in a way you expected when you signed the lease. For example, you are not using one or more rooms in your unit because you have sealed them up with tape or caulk to prevent the smoke from infiltrating the whole apartment. Arguments like this can be made stronger by referencing health problems experienced due to the smoke.

In buildings where smoking is allowed, landlords should be aware that the right to smoke is not absolute. If tenants can show that second-hand smoke is infiltrating their home from a neighbouring unit or balcony on a frequent and on-going basis, and substantially interfering with their reasonable enjoyment, then landlords have a responsibility to remedy the situation.

To learn more about second-hand smoke and reasonable enjoyment (or quiet/peaceful enjoyment, as it's known in other jursidictions), download Environmental Tobacco Smoke as a Breach of the Covenant for Quiet Enjoyment by Jacob Shelley.

How do I apply?

Visit the Landlord and Tenant Board online to download an application form, contact the Board by phone, or drop by any of the Board's office locations. 

Do I need evidence that there is second-hand smoke coming into my apartment?

Many people suffering from involuntary exposure to second-hand smoke in their own homes want concrete evidence regarding its presence. Second-hand smoke is composed of over 4,000 different chemicals and compounds, each with their own chemical and physical properties. In order to measure second-hand smoke, you actually have to choose a "tracer" as a representative, as well as have appropriate sampling and analytical methods. Scientists at the Center for Energy and Environment in Minnesota have identified key criteria required for successful measurement of second-hand smoke in multi-unit dwellings:

• The tracer must be unique to second-hand smoke, or have as few other sources as possible (so that your sample can't be confused with ambient outdoor air pollution, or the remnants of someone's burnt toast, etc.);
• The air sampling method must collect a sufficient quantity of the tracer over the sampling period of interest to allow it to be detected and measured;
• The analytical method must be sufficiently sensitive that it can measure the tracer with acceptable accuracy; and
• The air sampling and analytical methods must be sufficiently cost-effective for them to be commercially available to the general public.

Unfortunately, at present there is no such thing that meets all these criteria. If you are nonetheless interested in pursuing indoor air quality testing for your apartment, search the yellow pages for an indoor air quality testing service in your area. You can also contact the Canada Mortgage and Housing Corporation, which runs a training program for Indoor Air Quality Investigators. Call toll-free 1.800.668.2642.

Document how often the smoke seeps into your unit:

• Is the amount and frequency enough to qualify as “unreasonable” to an ordinary and reasonable person?
• Is the amount of smoke causing significant interference with the use and enjoyment of your home? In other words, has the smoke had such a negative effect that it has made some or all of your home, including the balcony, uninhabitable?
• Is the smoke so bad that you have to leave your apartment for specific periods of time?
• Is there evidence of the impact of the smoke on your health or the health of your family?
• Do you have witnesses who can testify regarding the amount and frequency of smoke infiltrating your home?
• Do you have supporting letters or affidavits from friends, family and neighbours who are  willing to testify?

How much does it cost?

The cost of filing varies with the type of application made. At present, there is no charge for a tenant to file a T2 (Application About Tenant Rights) form. See the Landlord and Tenant Board fee schedule for more information.

Do I need a lawyer?

No. You are not required to have a lawyer or agent with you at a Board hearing--you can present your own case to the adjudicator. However, if you think that your case is difficult, or you would feel more comfortable if a lawyer or agent presents your case, you can hire one.  This is a decision that you have to make. If you have an agent, they must have written permission from you, which says that you want them to represent you at the hearing (or in mediation).

How can I prepare for my hearing?

The following checklist can help you prepare: 

1. What was included in the terms of your tenancy agreement?

• Does your tenancy agreement include a no-smoking clause or is it silent on smoking?
• Is smoking permitted in the unit where you think the smoke is coming from?
• Did you ask about a no-smoking policy when you first rented your unit?
• Did the landlord advertise or otherwise communicate to you that the building was smoke-free?
• How long has the problem been occurring? Is this a new problem, or has it been going on since your tenancy began?

2.  What effect is the smoke having on your health?

• What health problems are you or your family experiencing due to involuntary exposure to the second-hand smoke?
• Does the smoke aggravate a pre-existing health condition, such as asthma, heart disease or high blood pressure?
• Do you have a letter from your physician to verify the effect of the smoke on your health?

3. What steps have you taken to try to resolve the problem before applying to the Board for
    adjudication?

• Did you take all reasonable steps to reduce the smoke entering your unit?
• Did you try to negotiate a solution with the landlord or smoking tenant?
• Did you turn down any compromise solutions offered by the landlord, such as moving to another unit in the building or another complex owned by the landlord? Or a negotiation to limit the times the smoker smokes in the unit? If so, explain why the solution was not acceptable to you.

4. What steps did the landlord take to address the problem once you notified him/her?

• Did you notify the landlord that there was a problem, and provide sufficient time for him/her to address it?
• Did the landlord take reasonable steps to correct the problem? What was the outcome?
• Did the landlord offer a compromised solution? What was the outcome?
• Did the landlord try to seal the source of the smoke? What was the outcome?
• Did the landlord talk to the smoking tenant? What was the outcome?
• Did the landlord attempt to broker a compromised solution with all parties? What was the outcome?

What are my chances of winning?

It depends. Quite frankly, you will have much more of an uphill battle if your neighbour denies smoking in his or her unit.

It is not possible to speak in broad terms about which applications are treated more favourably by adjudicators, given that every case is considered individually and on its own merit. Indeed, there are a number of factors taken into consideration that contribute to an adjudicator’s final judgment, including how you present yourself and how credible you are perceived to be, what kinds of evidence you introduce, what you did prior to making the application to try and solve the problem amicably, whether lawyers were involved, etc. Much also depends on which arbitrator presides over your case, including his or her own personal biases and attitudes.

Read through some of the tenant applications in the case law section to get a feel for how previous cases dealing with second-hand smoke have been adjudicated.