The landlords who filed the applications listed below all had no-smoking policies in place, either included in the lease or a verbal agreement with the tenant(s).

Ontario Landlord and Tenant Board, 2016 (File # SOL-70129-16)

D. I. I. (the ‘Landlord’) applied for an order to terminate the tenancy and evict C. C. (the ‘Tenant’) because he, another occupant of the rental unit or someone he permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant.

It is notable that C.C. was a “grandfathered” tenant who had not signed a lease with smoke-free clause.

The adjudicator decided that despite C.C. being “grandfathered”, because their smoking substantially interfered with the rights of the other tenants, there was cause for eviction.  However, the adjudicator took into account the long-standing nature of the tenancy and ordered the following:

 

1. The Tenant shall immediately cease smoking inside the residential complex or rental unit. The Tenant may smoke outside the building, at a reasonable distance therefrom.

2. If, within a six(6)-month period from the date of this order, the Tenant fails to comply with the condition in paragraph 1, the Landlord may, without notice to the Tenant, apply under section 78 of the Residential Tenancies Act, 2006 (the ‘Act’) for an order terminating the tenancy and evicting the Tenant. The Landlord must make the application within 30 days of a breach of a condition set out in paragraph 1 of this order and must be accompanied by a detailed affidavit setting out the circumstances and date of the breach.

3. The Tenant shall also pay to the Landlord $170.00 for the cost of filing the application.

4. If the Tenant does not pay the Landlord the full amount owing on or before July 4, 2016, he will start to owe interest. This will be simple interest calculated from July 5, 2016 at 2.00% annually on the balance outstanding

Read the decision

Ontario Landlord and Tenant Board, 2016 (File # NOL-23023-16)

DTSSAB (the ‘Landlord’) applied for an order to terminate the tenancy and evict YB (the ‘Tenant’) because the Tenant, another occupant of the rental unit or someone the Tenant permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant.

The adjudicator agreed with the applicant and decided that:

The Tenant’s smoking in the rental unit is contrary to the Landlord’s policy and her express agreement to not smoke. The Tenant’s behaviour substantially interferes with the reasonable enjoyment of the residential complex by the Landlord and other tenants and the Landlord’s lawful right to create and maintain a smoke free environment.

The tenancy was terminated by the Landlord and Tenant Board.

Read the decision.

Ontario Landlord and Tenant Board, 2014 (File # TNL-62490-14)

Among other things, the landlord applied for orders to:

  • terminate the tenancy and evict the tenant for substantially interfering with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex that has three or fewer units;
  • determine that the tenant had substantially interfered with the reasonable enjoyment of the residential complex by the landlord or by another tenant, or had interfered with another lawful right, privilege or interest of the landord or another tenant; and
  • determine that the tenant had seriously impaired the safety of any person.

The landlord has emphysema and lives in the same building as the tenant; the written lease indicates that the entire complex is smoke-free. The landlord alleged that the tenant was smoking cigarettes in the rental unit contrary to the lease agreement. Although the transcript mentions evidence brought forward to support the landlord’s claim, it is unclear what that evidence was.

Regardless, the adjudicator determined that the conduct substantially interfered with the landlord’s reasonable enjoyment of the residential complex, and further interfered with his lawful right to reside in a cigarette smoke-free complex, in accordance with the terms of the written lease. However, despite the landlord successfully proving, on a balance of probabilities, that symptoms related to his emphysema were triggered by his exposure to second-hand smoke, he failed to provide sufficient evidence that his safety was seriously impaired.

Nonetheless, the adjudicator sided with the landlord and determined that it was appropriate to terminate the tenancy based on breach of reasonable enjoyment and with a breach of the landlord’s lawful right to live in a smoke-free environment as per the terms of the lease. TAmong other things, the tenant was ordered to pay compensation for the use of the unit, as well as $170 for the landlord’s  cost to file the application.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File #CEL-27013-12-RV)

This case is actually a Tenant-requested review of an earlier decision in which the adjudicator determined that the Tenant had persistently failed to pay the rent on time and had substantially interfered with the reasonable enjoyment of the residential complex by another tenant or the lawful right, privilege or interest of the Landlord. This decision was based on the Tenant smoking in the rental unit contrary to the lease which stated that the premises is a non-smoking environment (said section was initialled by the Tenant). In his request for a review, the Tenant disputed the finding that he had smoked in the rental unit, although he did admit to smoking marijuana outside.

In the review, the adjudicator determined, on the balance of probabilities, that the Tenant continued to smoke after being served the first notice after the initial 7-day voiding period and this seriously interfered with other tenants’ reasonable enjoyment. This determination was based on emails from the Tenant, submitted by the Landlord as evidence. One stated, “… and its not my issue that you rented out upstairs as a non smoking unit when downstairs is a smoking unit… you cant evict for your mistakes.”

The adjudicator concluded that the Tenant did not honour the rental agreement to keep the unit smoke-free, and that this conduct substantially interfered with other tenants’ enjoyment of their rental units and the Landlord’s lawful right.

Note that the Landlord had obviously grandfathered his existing tenants, and that the smoke-free rule applied to this new Tenant, who did not understand the situation. The conflict could have perhaps been avoided had the Landlord clearly explained to his new Tenant that the building was in transition, and that as per the RTA, existing tenants were exempt from the new smoke-free rule.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File #NOL-10401-12)

This case was heard over 2 days, the Tenant not being present on the second day. The Landlord applied for an order to terminate the tenancy and evict the Tenant because he, another occupant of the rental unit or someone he permitted in the residential complex wilfully or negligently caused undue damage to the premises and because the Tenant has been persistently late paying the rent. The Landlord also applied for an order requiring the Tenant to compensate the Landlord for the damage.

The tenancy agreement indicates that there be no smoking in the rental unit. The Landlord and his assistant inspected the unit on two separate ocassions and both noted the smell of smoke, either tobacco or marijuana, along with various indications of damage to the ceiling, walls, bathroom window and fridge. Although not confirmed in the decision, it appears that the Landlord submitted photos as evidence.

The adjudicator determined that the Tenant was smoking and/or allowing his guests to smoke (cigarettes and/or marijuana) in the rental unit, and that the smoke had damaged the walls and ceilings of the unit, requiring it to be professional cleaned and repainted. The Landlord submitted estimates of $774 for the cleaning and $550 for the painting which the adjudicator accepted.

The adjudicator concluded that the Tenant wilfully or negligently caused undue damage to the rental unit, and noted that Section 33 of the Act provides that a tenant is responsible for ordinary cleanliness of the rental unit, and Section 34 provides a tenant is responsible for the repair of undue damage caused by wilful or negligent conduct.

The Tenant was ordered to pay the Landlord for the damage, and the tenancy was terminated.

Note that the adjudicator did NOT consider the brown second-hand smoke stains on the walls and ceilings as normal wear and tear.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File #NOL-11802-13)

The Landlord applied for an order to terminate the tenancy and evict the Tenant because he, another occupant of the rental unit or someone he permitted in the residential complex substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant and the building has three or fewer units.

Both parties acknowledged that the building is smoke free; the Landlord alleged the Tenant started smoking in the rental unit within one day of taking occupation. The Tenant testified that he and his son, both smokers, initially went outside to smoke but after incidents with the Landlord have been smoking in the rental unit. The Landlord, a non-smoker, has just completed chemotherapy treatment for prostate cancer and does not wish any exposure to second-hand smoke.

The adjudicator determined that the behaviour seriously interfered with the Landlord’s reasonable enjoyment and ordered termination of the tenancy – something both the Landlord and Tenant consented to.

Interesting to note: the Landlord provided no testimony or evidence that second-hand smoke was infiltrating his unit; the adjudicator determined that the behaviour of smoking in a non-smoking building was alone enough to constitute a breach of his reasonable enjoyment.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # TEL-34032-13)

The Landlords applied for an order to terminate the tenancy and evict the Tenants because they, another occupant of the rental unit or someone they permitted in the residential complex had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlords or another tenant.

The Landlords do not permit smoking in the building, and stated that they had received multiple complaints from their second floor tenants about smoke and excessive noise and music. The Tenants admitted that they used to regularly smoke inside the unit contrary to the terms of their lease, but don’t anymore. The Landlords submitted copies of the email complaints as evidence, but the complainant tenants opted not to appear before the LTB to provide oral testimony.

The adjudicator determined (without any objective evidence presented) that the smoke had entered the other tenants’ unit and had substantially interfered with their reasonable enjoyment. However, the adjudicator also determined that the email complaints, without a person present to undergo cross-examination, were hearsay evidence.

The adjudicator ordered the Tenants to smoke outside as per their written tenancy agreement, and that they must exercise care so as to prevent smoke from entering the residential complex. If this condition is breached, the Landlord may apply for an order to terminate the tenancy and evict the Tenants without notice. The Tenants were also ordered to pay the Landlords $170.00 for the cost of filing the application.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File #TSL-41574-13)

The Landlord applied for an order to:

    • terminate the tenancy and evict the Tenant because he, another occupant of the rental unit or someone he permitted in the residential complex had wilfully or negligently caused undue damage to the premises and had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord in a residential complex that has three or fewer residential units; and

 

  • require the Tenant to compensate the Landlord for the damage.

The Landlord alleged that the Tenant smoked in the rental unit despite an agreement that he would not do so, and supported his claim with photographic evidence. The Tenant denied the claim.

The Landlord alleged that the smoke travelled through the air vents into the upper floors, which is the Landlord’s home, seeping into carpets and upholstered furniture, and requiring the unit to be repainted. The Landlord claimed that steam cleaning and painting the unit cost $300.

The adjudicator accepted the Landlord’s testimony and ordered the Tenant to pay the Landlord a total of $470: $300 to cover the cleaning and painting costs and $170 to cover the cost of filing the application.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File #TSL-23092-11-RV)

This application is actually a review requested by the tenant of an application filed by her landlord in 2011. The landlord had applied for an order determining that the tenant had wilfully caused undue damage to the rental unit and had also seriously impaired the safety of another person. The tenant had signed a lease with a no-smoking clause, and the landlord had received complaints about second-hand smoke from other tenants.

With regard to the allegation of wilfull damage (section 63), the adjudicator determined that the landlord did not have sufficient evidence. However, the adjudicator pointed out that had the landlord cited section 62 of the Act that deals with negligence causing undue damage, or substantial interference, the outcome may have been different.

The adjudicator determined that the landlord did not have sufficient evidence to justify the tenant’s eviction (based on what was cited in the application) and dismissed the case.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File # NOL-07219-12)

The landlord applied for an order to terminate the tenancy and evict the tenant because of substantial interference with reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant. The landlord alleged that the tenant was smoking in the rental unit contrary to the terms of the lease.

The tenant testified that he was not aware that the unit was non-smoking and would not have rented it had he known. The adjudicator determined that the tenant’s smoking constituted substantial interference with other tenants’ reasonable enjoyment and with the landlord’s lawful right, privilege or interest.

The adjudicator ordered the tenant to cease smoking in his unit, and to pay the landlord the cost of filing the application. The landlord was also given a “fast track” option for eviction if the tenant fails to follow the order.

Read the decision.

Ontario Landlord and Tenant Board, 2011 (File # TEL-11819-11)

The landlord applied for an order to terminate the tenancy and evict the tenants for failing to pay the rent, and for breach of reasonable enjoyment due to smoking contrary to the lease.

The adjudicator ordered the tenant to pay the rent owing, and to ensure there is no smoking in the unit. If the tenant fails to comply with the order, the landlord can file the order with the Sheriff.

Read the decision.

Ontario Landlord and Tenant Board, 2010 (File # EAL-03261-09)

The landlords applied for an order to terminate the tenancy and evict the tenant due to substantial interference with reasonable enjoyment or lawful right, privilege or interest of the landlords or other tenants.

The landlords own a 7-unit rooming house that is advertised and operated as a non-smoking building. The tenant signed a lease with a no-smoking clause. Despite neither the landlords nor a third-party tenant personally witnessing the tenant smoking, the adjudicator accepted their evidence of smoking activity and determined that it substantially interfered with reasonable enjoyment. The tenancy agreement was terminated.

Read the decision.

Ontario Landlord and Tenant Board, 2010 (File # NOL-00930-10 and NOL-01030-10)

This decision was featured on the LTB website to help interpret or explain an area of law and/or to raise a new or interesting issue regarding reasonable enjoyment.

The landlord applied for an order to terminate the tenancy and evict the tenant due to substantial interference with reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant. The landlord also alleged the tenant committed an illegal act.

The tenant admitted to smoking in the rental unit contrary to the lease containing a no-smoking clause, even after receiving an N5 from the landlord. A witness provided testimony regarding the impact on her health because of her involuntary exposure to second-hand smoke.

The adjudicator noted that all units of the complex share a forced air heating system which facilitates the spread of smoke throughout the building. The adjudicator determined that the tenant’s smoking substantially interfered with the reasonable enjoyment of the other tenants and terminated the tenant’s tenancy. The portion of the application dealing with an illegal act was dismissed because of insufficient evidence.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File #NOL-05945-AM and NOL-06045-AM)

The landlord applied for an order to terminate the tenancy and evict the tenants because they, another occupant of the rental unit or someone they permitted in the residential complex have willfully caused undue damage to the premises and because they, another occupant of the rental unit or a person the tenants permitted in the residential complex have seriously impaired the safety of any person. The landlord also claimed compensation for damage and for each day the tenants remained in the unit after the termination date.

The rental agreement prohibited smoking in the unit. Among a list of other allegations, the landlord claimed the tenants had disconnected the smoke detector in their rental unit, and had neglected to properly handle cigarettes which had resulted in multiple burns to the carpet, flooring and bathroom vanity. The landlord also provided “compelling” video evidence demonstrating, among other things, “significant smoke damage” to the walls and ceiling.

The adjudicator granted the landlord’s application and ordered the tenancy terminated, along with compensation.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File # TEL-19367)

In this case the landlord applied for an order to terminate the tenancy and evict the tenant because she, another occupant of the unit or someone she permitted in the complex substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex with three or fewer units.

The tenant signed a lease that clearly stated the unit was smoke-free. Within two hours of moving in the tenant was in violation of the landlord’s no-smoking policy. The landlord testified that his family was being made ill by the smoke infiltrating their unit via the ventilation system. The tenant notified the landlord in writing that she would move out of the unit by Dec. 23, 2008.

The adjudicator determined that the tenant was in violation of the lease agreement, and that this conduct substantially interfered with the lawful right, privilege or interest of the landlord. The adjudicator ordered the tenancy terminated and the tenant evicted with compensation for each day the tenant remains in the unit, plus the cost of filing the application.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File # CEL-15596)

The landlord applied for an order to terminate the tenancy and evict the tenant because:

  • The tenant or another occupant or guest had wilfully caused undue damage to the unit;
  • The tenant or another occupant or guest had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex that has three or fewer units; and
  • The tenant or another occupant or guest had serioulsy impaired the safety of any person.

The landlord also claimed compensation for the damage and for each day the tenant remained in the unit after the termination date.

The landlord testified that the tenant smokes inside the unit contrary to the lease agreement. Despite the tenant denying this statement, the adjudicator accepted as evidence a photograph showing cigarette butts in the rental unit. The landlord claimed that the smoke goes through the ventilation system causing him and his family headaches and sleep loss. The landlord provided no other evidence regarding these claims.

The adjudicator denied the portions of the application regarding damage and safety, but accepted that the second-hand smoke interferes with the landlord’s reasonable enjoyment of the complex and also substantially interferes with a lawful right, privilege or interest of the landlord. The adjudicator ordered the tenancy terminated and compensation for the landlord.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File # NOL-05897)

This application involved a landlord applying to the Board to terminate the tenancy and evict three tenants (living in the same unit) because they:

  • substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant; and
  • failed to pay the rent.

The landlord’s representative, who attended the hearing, reported that the landlord had been receiving complaints from other tenants about a strong smell of second-hand smoke coming from the tenant’s unit. Further, their smoking breached an injunction against smoking in the unit which had been ordered by the Board the week before.

The adjudicator determined that by smoking in the rental unit, the tenants had breached a condition of their rental agreement and that the ongoing presence of second-hand smoke substantially interfered with the landlord’s and other tenants’ reasonable enjoyment.

The adjudicator ordered the tenancy terminated and granted eviction. The landlord was ordered to refund the last month rent deposit plus interest, minus the rent arrears still owed by the tenants.

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Ontario Rental Housing Tribunal, 2000 (File # TEL-14875)

The landlord filed this application to terminante the tenancy and evict the tenants because they had failed to meet the conditions of order # TEL-01084: “Smoking in the rental unit is strictly prohibited.”

The landlord submitted as evidence two undated photographs showing cigarette butts in the sink and an ashtray inside the tenants’ unit. The landlord had gained lawful entry without notice to the unit for an unrelated emergency repair.

The adjudicator determined that taking photos was not the purpose of the entry, and that because of this the landlord had substantially interfered with the reasonable enjoyment of the tenants by infringing on their privacy. Moreoever, it was determined that there had been a delay of more than 9 months between the taking of the photos and the landlords’ application. Finally, the adjudicator determined that the landlords did not prove that the smell of second-hand smoke was originating from inside the tenants’ unit. The application was dismissed.

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Ontario Landlord and Tenant Board, 2008 (File # NOL-03868)

In this case the landlord applied for an order to terminate the tenancy and the evict the tenant because the tenant had:

  • willfully caused undue damage to the unit;
  • substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex of three or fewer units; and
  • seriously impaired the safety of others in the building.

The landlord also claimed compensation for each day the tenant remained in the unit after the termination date. The tenant did not attend the hearing.

The landlord had a no-smoking policy in the lease which the tenant chose to ignore. The landlord claimed that his daughter is asthmatic and has to take medication that was never required prior to the tenant smoking in her unit. In addition, the tenant allegedly tampered with the smoke detectors, and had been physically abusive towards the landlord and the property itself, including allowing her dog to urinate and defecate inside the complex.

The adjudicator accepted the landlord’s application on all points and awarded monetary compensation in addition to ordering eviction proceedings.

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Ontario Landlord and Tenant Board, 2008 (File # TEL-18980)

The landlord applied for an order to terminate the tenancy and evict the tenant because she, another occupant of the unit or someone she permitted in the residential complex substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant, and because she, another occupant of the unit or someone she permitted in the residential complex seriously impaired the safety of any person.

The landlord had a no-smoking policy in place, which was clearly included in the lease. On the same day the tenancy began, the tenant’s guest answered the door with a lit cigarette. The landlord also testified that the tenant had tampered with the smoke detector in the unit several times. The tenant maintained that the detector was going off whenever she cooked, which is why she took the batteries out. In addition, the police had visited the tenant’s unit three times in three weeks because of loud music, and the tenant was ticketed on the third visit.

The adjudicator agreed that the tenant’s behaviour had substantially interfered with the landlord’s lawful right, privilege or interest, and that tampering with the smoke detector seriously impairs the safety of others.

The adjudictor ordered the tenancy terminated, ordered the tenant to pay the landlord the cost of filing the application and permitted the landlord to file the application with the Sheriff if the unit is not vacated on the noted day.

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Ontario Landlord and Tenant Board, 2008 (File # CEL-10081)

The landlord applied for an order to terminate the tenancy and evict the tenants because:

  • They did not pay their rent;
  • They, another occupant of the unit or someone they permitted in the residential complex wilfully caused undue damage to the premises; and
  • They substantially interfered with the reasonable enjoyment of lawful right, privilege or interest of the landlord in a residential complex that has three or fewer units.

The landlord also applied for compensation for the damage and for each day the tenants remained in the unit after the termination date.

The landlord submitted an ad from the newspaper indicating that his unit was advertised as a no-smoking unit. The landlord alleged that the tenants smoked in the unit; the tenants did not attend the hearing. The landlord also submitted a letter from his doctor stating that his health and the health of his family had deteriorated because of involuntary exposure to second-hand smoke from the basement apartment.

The adjudicator agreed that the second-hand smoke substantially interfered with the landlord’s and his family’s reasonable enjoyment of their home and adversely impacted their health. The adjudicator granted the application and ordered the tenancy terminated. The landlord was also granted compensation for rent owing, for use of the unit until the tenants move out and for filing the application. The landlord is also entitled to file the order with the Sheriff to enforce eviction.

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Ontario Landlord and Tenant Board, 2008 (File # NOL-04946)

In this case the landlord applied for an order to terminate the tenancy and evict the tenant because the tenant:

  • did not pay rent owing; and
  • substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

The landlord testified that she had verbally informed the tenant of the no-smoking policy when he moved into the unit. She claimed that she could smell second-hand smoke and had observed ashtrays with cigarette butts in the tenant’s apartment. The tenant’s representative agreed that the tenant was a smoker but claimed that he did not smoke in the unit, and that the smell was of burning incense.

The adjudicator accepted the landlord’s testimony regarding the smoking and determined that the tenant had breached the verbal conditions of the tenancy agreement. Further, it was determined that the smoking substantially interfered with the reasonable enjoyment of the landlord (no health evidence was submitted).

The adjudicator ordered an injunction preventing the tenant from smoking any substance in the unit, as well as burning incense. If the tenant failed to meet these conditions, the landlord was granted permission to apply for eviction without notice to the tenant. Finally, the tenant was ordered to pay rent owing—and if the rent was not paid by a certain date, the tenancy would be automatically terminated.

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Ontario Landlord and Tenant Board, 2008 (File # NOL-04252)

In this case the landlords applied for an order to terminate the tenancy and evict the tenant because she:

  • didn’t pay rent owing;
  • substantially interfered with the reasonable enjoyment or  lawful right, privilege or interest of the landlord in a residential complex that has three or fewer units; and
  • because the landlords required possession of the unit for residential accommodation.

The landlords submitted evidence (not described in the case) of their health problems which were being made worse by exposure to second-hand smoke. They also claimed compensation for each day the tenant remained in the unit after the termination date. The tenant did not attend the hearing.

The adjudicator determined that because the tenant had ignored the landlords’ ongoing requests to stop smoking in the unit, she had substantially interfered with their reasonable enjoyment. It was also determined that the tenant owed rent.

The adjudicator accepted the landlords’ application, ordered the tenant to pay the rent owing as well as the cost of filing the application, and terminated the tenancy.

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Ontario Landlord and Tenant Board, 2008 (File # SWL-10698)

The landlord applied for an order to evict the tenant because of substantial interference with the reasonable enjoyment of others–the landlord claimed the tenant was smoking in his unit.  The landlord had prohibited smoking in the apartment building and adjacent long-term care facility the previous year by adding a schedule to the building’s “Rules and Regulations”, and a few days later the tenant had been advised of the policy and was asked to stop smoking.

The other complainant for the landlord was an elderly woman citing numerous health problems resulting from second-hand smoke permeating her apartment and hallways from the tenant below. The landlord had attempted to isolate the tenant’s rental unit and upgrade the ventilation system with no success. Despite repeated requests to the tenant to stop smoking and the landlord re-locating the elderly woman to another apartment, problems persisted.  The tenant who smokes suffers himself from heart disease and diabetes among other illnesses, but testified that he could not quit smoking at this time as it would negatively affect his health.

The adjudicator granted the landlord’s application and ordered the tenant be evicted, and pay the costs for filing the application. In his analysis he noted that the tenant had significantly interfered with the elderly woman’s reasonable enjoyment, and that there was ample evidence of the negative effect of second-hand smoke on her health and others exposed to second-hand smoke in the hallways. He further added that the effect of second-hand smoke was no less intrusive than loud music and yelling, which have also previously been held to satisfy the burden of establishing substantial interference.

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Ontario Landlord and Tenant Board, 2007 (File #s TSL –01010, TST- 00092 & TST-00096)

This case involves three files brought before the Board over a five-month period. Both the landlord and the tenant applied for orders against each other and claimed financial compensation.

  • The landlord claimed that the tenant had willfully or negligently caused undue damage resulting from allowing smoking in his apartment after agreeing to a no-smoking clause in the lease, and for substantially interfering with the reasonable enjoyment, privilege or interest of the landlord; and
  • The tenant alleged that the landlord had substantially interfered with his reasonable enjoyment by threatening him with eviction if she did not receive his rent cheque on its due date and for disputes over the cleaning services.

The adjudicator ruled that the smell of cigarette smoke changed the character of the rental unit from its prior state, so it could no longer be marketed as a non-smoking furnished luxury accommodation. In this context, the persistent smell of smoke in the unit constituted damage, and costs would be incurred for the landlord to clean, repair and replace soft furnishings and bedding and to clean and repaint the walls to restore the unit to its previous state.

He further agreed that it was lawful to include a no smoking clause in a rental agreement and ruled in favour of the landlord. The tenant’s T2 and T3 applications were dismissed.  The tenant was ordered to pay the landlord the costs of filing the application plus the Board’s maximum monetary jurisdictional allowance of $10,000 in compensation, while stating that the itemized amount of total compensation due exceeded the amount allowable under this jurisdiction.  The adjudicator also ordered the tenant to pay an additional per diem cost for use of the unit until the premise was vacated, and determined a timeline before further costs including interest were incurred and the Sheriff’s Office involved.

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Ontario Landlord and Tenant Board, 2007 (TNL-00798)

The landlord applied for an order to terminate the tenancy and evict the tenants because they substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord and other tenants in the residential complex.

The tenants live in the basement unit of a split-level house; the landlord lives on the main floor and other tenants live on the upper floor. The tenants in question had a verbal agreement with the landlord to not smoke in the house, and one of the tenants conceded that he smoked “only once” in the house.

The landlord submitted into evidence sworn affidavits from the other tenants in the house, as well as from his babysitter, that they could smell second-hand smoke on specific dates. The tenant in question was not able to satisfactorily refute the evidence.

The adjudicator determined that the tenant in question had smoked in the house which violated the verbal agreement and substantially interfered with reasonable enjoyment of the residential complex. The tenancy was ordered terminated and the tenants evicted. The landlord was also granted permission to file the order with the Sheriff to enforce eviction if necessary.

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Ontario Landlord and Tenant Board, 2007 (File # SWL-00438)

The landlords applied for an order to terminate the tenancy and evict the tenant because:

  • The tenant did not pay the rent owed to the landlords; and
  • The tenant, another occupant of the unit or someone he permitted in the residential complex substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlords or another tenant.

The tenant lived in the basement apartment below the landlords and had signed a lease containing a no-smoking clause. The tenant had also been told verbally that the landlords’ daughter was allergic to tobacco smoke. The landlords submitted a lengthy log second-hand smoke incidents, as well as a letter from a third party describing her difficulty in sleeping because of the smoke.

The adjudicator determined that the tenant’s conduct substantially interfered with the reasonable enjoyment of the landlords and their family and ordered that the tenancy be terminated. The adjudicator also granted compensation for rent owing, for the use of the unit until the tenant moves out and for the cost of filing the application. Finally, the landlord was granted permission to file the order with the Sheriff if necessary to enforce the eviction.

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Ontario Landlord and Tenant Board, 2007 (File # NOL-00301)

The landlord applied for an order to terminate the tenancy and evict the tenant because the tenant, another occupant of the unit or someone he permitted in the residential complex substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex with three or fewer units.

The tenant smoked in the unit contrary to the wishes and requests of the landlord who lived below. It is not clear if the landlord had a no-smoking policy in place prior to the tenant moving in. The landlord also alleged that the tenant did not move his garbage from the unit and that both the smell of second-hand smoke and garbage were infiltrating his unit.

The adjudicator agreed that the conduct of the tenant had substantially interfered with the reasonable enjoyment of the landlord. The tenant was ordered to immediately refrain from smoking in the unit and the tenancy was terminated with permission for the landlord to file the order with the Sheriff to enforce eviction.

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Ontario Landlord and Tenant Board, 2007 (File NOL-18596)

The landlord applied for an order to terminate the tenancy and evict the tenants because the tenants’ rent was in arrears and because they had substantially interfered with the reasonable enjoyment of other tenants in the building. Both tenants reside on the main floor of a three-story smoke-free building with units above and below them, and admit to smoking in their unit.

The tenants allege they did not know the building was smoke-free when they moved in despite the landlord submitting a document they had signed acknowledging the no-smoking policy. They claim they signed it several weeks after they moved in even though they themselves admit they dated the document earlier in the month.

On the issue of reasonable enjoyment, the adjudicator determined that the tenants had breached their rental contract by smoking in a non-smoking building. He ordered that the tenancy be terminated and that rent payments in arrears be made, plus compensation and application costs. If the timeframe outlined was not met the Sheriff would enforce the order.

He also ruled that should the tenants wish to stay, they should pay all monies to the landlord as ordered and must cease smoking in their unit and on the rental property. Should any breach to these terms be made within 30 days, the landlord may apply to the board to evict the tenants without further notice.

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Ontario Rental Housing Tribunal 2004 (File # TSL-64629)

The landlord applied to terminate the tenancy due to interference with reasonable enjoyment. He presented uncontested evidence that he had asked the tenant to stop smoking in her unit three times because the smoke was transmitted to other units, including the unit above where another tenant lived with her asthmatic son. In the past, other smoking tenants had smoked outside in consideration of her son’s health.

Measures taken by the landlord to attempt to control the smoke included blocking the ducts and turning off the air conditioning in the summer. However, those steps were ineffectual and it was now necessary to unblock them so that all tenants could get heat for the winter.  There were additional allegations about loud music and propping open a side door causing other tenants to fear for their safety should anyone gain entry to the building.

The adjudicator limited his findings to the fact that the tenant had repeatedly failed to comply with house rules regarding smoking, and that this conduct had substantially interfered with other tenants’ reasonable enjoyment and lawful rights in regards to their health. He ordered the tenancy terminated and enforced by the Sheriff if the unit wasn’t vacated within the specified timeframe.

It should be noted that the adjudicator was satisfied with the verbal testimony provided by the tenant with the asthmatic son regarding health effects of exposure to second-hand smoke and its effect on asthma. No other evidence was requested.

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Ontario Rental Housing Tribunal, 2000 (File # TEL-14875)

The landlord filed this application to terminante the tenancy and evict the tenants because they had failed to meet the conditions of order # TEL-01084: “Smoking in the rental unit is strictly prohibited.”

The landlord submitted as evidence two undated photographs showing cigarette butts in the sink and an ashtray inside the tenants’ unit. The landlord had gained lawful entry without notice to the unit for an unrelated emergency repair.

The adjudicator determined that taking photos was not the purpose of the entry, and that because of this the landlord had substantially interfered with the reasonable enjoyment of the tenants by infringing on their privacy. Moreoever, it was determined that there had been a delay of more than 9 months between the taking of the photos and the landlords’ application. Finally, the adjudicator determined that the landlords did not prove that the smell of second-hand smoke was originating from inside the tenants’ unit. The application was dismissed.

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Ontario Rental Housing Tribunal, 1999 (File # TEL-05320)

This application for eviction due to interference with reasonable enjoyment was brought to the Board by the landlord, an elderly woman suffering from heart disease.  She also applied for an order that the tenant provide keys to the unit.

The landlord rented out her basement apartment to a tenant who had signed a no-smoking agreement, but nonetheless smoked in the apartment.  The tenant had also changed the lock to her apartment and not provided the landlord with a key. Second-hand smoke permeated the landlord’s unit causing her chest pain and increased use of her puffer, which resulted in serious headaches.

The adjudicator ruled that the tenancy was terminated and ordered the tenant to supply the landlord with keys to the apartment as well as pay compensation. He stated that the ‘Agreement to Rent’ given into evidence was not a lease as there was no term and no signature of the landlord. However, it coupled with the tenant’s original promise not to smoke was reason enough to rule that smoking constituted serious interference with reasonable enjoyment and was cause for termination. Should the tenant not vacate the unit as ordered, the landlord was granted permission to obtain an eviction notice enforced by the Sheriff.

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