In Ontario smoke-free policies can be enforced citing breach of reasonable enjoyment, substantial interference with another lawful right, privilege or interest of the landlord, damage, safety, etc.
However, 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. 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 adjudicator presides over your case, including his or her own personal biases and attitudes.
Be sure to carefully document any and all violations, and if possible, get witnesses who would be willing and able to testify about incidents of smoking.
There are several purposes for requiring a landlord to provide the reasons and details for serving an N5 form. The tenant needs to know the specific allegations against him or her in order:
- To be in a position to know the case that must be met;
- To decide whether to dispute the allegations made against him or her before the Board; or
- To consider whether to stop the conduct or activity or correct the omission within 7 days and thereby void the notice.
An N5 form by a landlord also acts as a “notice to the tenant to comply” and must therefore include specific details to make it meaningful. Particulars should include dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant.
In past Landlord and Tenant Board cases adjudicators have accepted evidence in the form of log books detailing the dates and times that second-hand smoke infiltrated another apartment, in addition to testimony from third parties confirming the smell of second-hand smoke and its impact on health and well-being.
If you have already sent the tenant a warning letter to two, and are still not satisfied that this has corrected the problem, you can start legal proceedings with a notice of termination.
N5 Form: Use an N5 form, “Notice to Terminate a Tenancy Early,” if the tenant, the tenant’s guest or another occupant of the rental unit willfully or negligently damaged the rental unit or the residential complex. You can also use this form if the tenant, the tenant’s guest or another occupant of the rental unit substantially interfered with the reasonable enjoyment of the residential complex by the landlord or another tenant, or substantially interfered with another lawful right, privilege or interest of the landlord or another tenant.
You can give this notice to the tenant in a variety of ways, including handing it directly to them, leaving it in their mailbox, sending it, faxing or couriering it. However, you cannot post it on their door. If this is the tenant’s first N5 within the last 6 months, the tenant has an opportunity to correct the problem and void the notice. In other words, the notice is remedial.
If the N5 is the tenant’s second notice within the last 6 months, there is no opportunity for them to correct the problem and void the notice. In other words, the notice is non-remedial.
N7 Form: Use an N7 form, “10-Day Notice to Terminate a Tenancy Early,” if you believe that the tenant is willfully damaging the unit or complex. You can also use this form if you live in the building too (and it is not more than three units) and the tenant, the tenant’s guest or another occupant of the rental unit substantially interfered with the reasonable enjoyment of the building by the landlord, or substantially interfered with another lawful right, privilege or interest of the landlord.
L2 Form: You can submit an L2 form, “Application to Terminate a Tenancy and Evict a Tenant” to the Board if:
- You gave your tenant their first N5 form within the last 6 months and they did not correct the problem within 7 days of receiving the notice;
- You gave your tenant their second N5 form within the last 6 months; or
- You gave your tenant an N7 form.
You can use an L2 form to apply for compensation as well as eviction.
When filling out your paperwork, make sure to not only be as specific as possible regarding dates and times and parties involved, but be sure you are applying for something that the Board has jurisdiction to order.
Visit the case law section and read other landlords’ applications to enforce their no-smoking policies. You will see that successful applications almost always cite other issues in addition to breach of a no-smoking policy, such as breach of reasonable enjoyment, damage, failure to pay rent, etc.
Consult the Landlord and Tenant Board online to download these forms, as well as for helpful instructions on how to proceed.
Smoking is prohibited in the enclosed common areas of public places in Ontario, which includes your building: lobbies, stairwells, elevators, corridors, laundry rooms, etc. Enforcement of the Smoke-Free Ontario Act is the responsibility of your local public health unit, where complaints of any violations can be made.
However, owners and managers of apartment buildings have a legal responsibility to prevent people from smoking in enclosed common areas. They are not held responsible if it can be demonstrated that reasonable steps have been taken to prevent smoking from occurring. Tips for ensuring smoke-free areas include posting signs and notifying residents.
To obtain signage, ask your local public health unit. For more information on the Smoke-Free Ontario Act, visit Smoke-Free Ontario.
Some municipalities have passed bylaws which prohibit smoking outdoors within a certain distance from public places, which might include your building. For more information, contact your municipality, or check out the smoke-free bylaw compendium put together by the Non-Smokers’ Rights Association.
If your building is converting to smoke-free status, it is still important to address complaints of second-hand smoke migrating from ‘grandfathered’ units into non-smoking units.
- Clarify with staff that while grandfathered tenants may be allowed to smoke in their units, complaints of second-hand smoke must still be addressed.
- In the absence of a no-smoking clause in a tenancy agreement, if a landlord receives complaints that smoke from a neighbouring unit is significantly bothering other tenants, the second-hand smoke can constitute a breach of reasonable enjoyment.
- If warranted, a landlord can issue an N5 form (Notice to Terminate a Tenancy Early) if it can be proven that the smoke is infiltrating the homes of other tenants, and there is evidence that the smoke infiltration is severe enough to cause an unreasonable disturbance. Note–it must be more than a temporary discomfort or inconvenience. This is especially important if a landlord is seeking to evict a tenant.
Here are some suggestions for reducing smoke transfer between units. Keep in mind these are only interim measures and will not eliminate the problem:
- Install weather-stripping around doors and windows;
- Fill or patch cracks in walls, ceiling, and inside of cabinets on common walls;
- Insulate the air spaces around plumbing pipes;
- Insulate and place covers over electrical outlets and phone jacks;
- Check the structure of your residence as sometimes structural weaknesses will allow second-hand smoke to travel between units;
- Ensure the building ventilation system is working efficiently by:
- Cleaning, changing or installing new filters;
- Adding more fresh air intake into the ventilation system (this might involve adjusting the timer, if applicable);
- Restricting the amount of air exhausted through the ventilation system from the units of tenants who smoke.
Visit the Canada Mortgage and Housing Corporation online for useful tips on addressing indoor air quality issues in multi-unit dwellings. There is also useful indoor air quality information available from an American company called Indoor Environmental Engineering.