Most of the tenant applications listed below are for orders recognizing breach of reasonable enjoyment by the landlord.

Ontario Landlord and Tenant Board, 2014 (File # SOT-53244-14)

In this case, the tenant applied for an order to find that the landlord had substantially interfered with her reasonable enjoyment of the rental unit or residential complex. The tenant alleged that an ad for the unit read, “Is suitable for a quite, mature, non-smoking, no pets, adult (not large enough for 2 people).”

Although she did not sign a lease that indicated the building was non-smoking, she did discuss the issue with the landlord prior to moving in. Within two days of moving, she complained to the landlord that one of the other tenants was smoking indoors. The landlord replied within hours and assured her that the other tenants would be reminded to only smoke outside. A second email complaint days later from the tenant about exposure to second-hand smoke (SHS) was similarly handled. Six days after moving in, the tenant gave notice to vacate, citing SHS and an absence of heat.

The adjudicator ruled that the tenant did not give the landlord sufficient time to deal with the smoking issue, and that the landlord had taken reasonable steps to address the problem. The application was dismissed.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # TST-43421-13)

In this case the tenant applied for an order (among other things) determining that the landlord had substantially interfered by with her reasonable enjoyment of the rental unit or residential complex. This was the T2 portion of her application – an application about tenant rights.

The tenant alleged that she was unable to use her balcony from June to November 2013 because of marijuana smoke from her neighbours’ unit. She alleged that despite her complaints, the landlord did nothing about the problem. Her neighbours moved out in November. There is no mention of a no-smoking policy in this case.

The tenant requested a 20% rent abatement (reduction) for the time period in question, which the adjudicator found reasonable and granted.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # NOT-11683-13)

The Tenant applied for an order determining that the Landlords or the Landlords’ agent substantially interfered with their reasonable enjoyment of the rental unit or residential complex.

The residential complex is designated smoke-free and all tenancy agreements provide that tenants are not permitted to smoke within the complex. The Tenant testified smelling second-hand smoke in her rental unit from the commencement of her tenancy, and that it is seriously affecting her health and enjoyment of her unit. She complained to her Landlord about it, and kept a log of the times she noted the smell. The Tenant claimed to have met the downstairs tenants who told her, when she moved in, that they were smokers; the Tenant also testified observing them coming in from an outside area where they had gone to smoke. The downstairs tenants acknowledge they are smokers but deny they have ever smoked in their rental unit or in the residential complex, contrary to their lease agreement.

The Landlords testified that the tenants have co-operated with the Landlord and allowed inspections of their unit on numerous occasions for evidence of smoke or odour; the Superintendent testified she has not found any evidence of smoking. Other tenants and visitors to the building provided written statements confirming their observations of the smoking downstairs dwellers over a long period and that they have never seen them smoking in the building or smelled smoke in their units.

The adjudicator determined that the Landlord took all reasonable steps to investigate the Tenant’s complaints and to ensure that other tenants were not doing anything contrary to their lease agreements or interfering with another tenant’s reasonable enjoyment. The application was dismissed.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # TNT-40242-13)

The Tenants applied for an order determining that the Landlord or the Landlord’s superintendent harassed, obstructed, coerced, threatened or interfered with them and substantially interfered with their reasonable enjoyment of the rental unit.

The Tenants filed the application because they felt the Landlord had wrongly accused them of smoking marijuana in their unit and that the superintendent was conspiring with their neighbours to try to evict them. The Tenants claimed that they “do not smoke marijuana at all” and they that their neighbours were making false accusations against them.

The Landlord testified receiving several complaints from tenants regarding the smell of marijuana emanating from the Tenants’ unit shortly after they moved in. The Landlord asked the tenants to put their complaints in writing, and received four written complaints from the tenant of #904 and one written complaint from the tenant of #902. The superintendents stated that they investigated the complaints and found that there was indeed marijuana smell coming from the Tenants’ unit. The superintendents also testified that they had previously attended the unit to respond to a “heat complaint” where they experienced a strong marijuana smell in the unit.

The adjudicator found the Landlord’s evidence credible and determined that the Tenants did smoke marijuana in their unit, that there was strong marijuana smell coming from their unit, that the Landlord responded appropriately to address the complaints and that this did not substantially interfere with their reasonable enjoyment of the unit.

The adjudicator dismissed the application.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # TNT-46631-13)

The Tenants applied for an order determining that the Landlords substantially interfered with their reasonable enjoyment of the residential unit or complex.

The Tenants responded to an advertisement for the rental unit which indicated that it was a non-smoking unit. This was important to them because the female Tenant suffers from severe headaches in the presence of cigarette smoke, and they have a 3 year old child who they do not wish to expose to second-hand smoke. The Tenants signed a lease indicating that they would not smoke in or around the premises.

About a month after moving in, the Tenants made their first of many complaints to The Landlords about second-hand smoke infiltrating their unit from the tenants upstairs. The Landlords allegedly spoke to the tenants upstairs, but took no further action. The tenants upstairs denied smoking in their unit.

In their letters of complaint, the Tenants requested that the Landlords serve the upstairs tenants with a notice of termination (N5) for interference with the enjoyment of the rental unit and residential complex by the Tenants and their family. In support of their requests, the Tenants provided the Landlords with detailed documentation of the dates, times and location of the cigarette smoke entering their unit. From the backyard of the house, they also testified seeing the upstairs tenants through the windows smoking indoors.

The adjudicator determined that by taking no effective steps to remedy the situation, the Landlords substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants or by a member of their household. The adjudicator ordered:

  • A rent abatement in the amount requested by the Tenants (amount not indicated in decision);
  • Reimbursement for the purchase of a heater (Tenants had blocked the vent to prevent smoke from entering, thereby needing a space heating); and
  • Moving costs.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File # TST-31450-12)

In this application, the Tenant applied for an order determining that the Landlord substantially interfered with her reasonable enjoyment of the rental unit or residential complex.

Both the Landlord and The Tenant agreed that the Tenant had asked the Landlord prior to entering into the tenancy about the smoking status of the downstairs tenants; the Tenant has asthma and it was important to her that the rental unit be smoke-free. The Landlord assured the Tenant that the downstairs tenants were non-smokers.

Three days after moving in, the Tenant registered her first of many complaints to the Landlord about second-hand smoke infiltrating her unit from the tenants below, both of whom were in fact smokers. The Landlord spoke to the downstairs tenants requesting that they stop smoking, but took no further action. The Tenant testified that because of the smoke in her unit, she had to rely on asthma medication and developed a sinus infection; the Tenant was finally compelled to move out to protect her health.

The adjudicator determined that the amount and persistence of the smoke infiltration had a serious and continuing adverse effect upon the Tenant’s health and substantially interfered with her reasonable enjoyment of the rental unit. The adjudicator also determined that the Landlord fundamentally breached the tenancy agreement by assuring the Tenant that the residential complex was a non-smoking environment.

The adjudicator ordered the tenancy terminated, and ordered the Landlord to compensate the Tenant:

  • 30% rent abatement from the date of the first complaint to the date the Tenant moved out;
  • moving expenses;
  • the hydro-electric connection fee at the new apartment; and
  • the cost of filing the application.

Note that the tenant did not have to objectively prove there was smoke entering her apartment.

Read the decision.

Ontario Landlord and Tenant Board, 2013 (File #TST-38271-13)

The Tenant applied for an order determining that the Landlord substantially interfered with his reasonable enjoyment of the rental unit or residential complex. At issue is the conduct of the tenant who moved into the first floor unit – specifically that the tenant smokes and has continually failed to pick up his dogs feces in the backyard. Although not allergic to cigarette smoke, the Tenant stated that he would sometime suffer from headaches because of the smoke. The Tenant sought a rent abatement (discount) for the length of time he has lived with SHS in his unit and dog feces in the backyard.

The residential complex is a two-storey house with three units: one on each floor and one in the basement. The Tenant resides on the second floor. The Tenant testified that when he moved into his unit he was informed that the building was non- smoking. The current Landlord took over the management of the rental property in 2011.

The Tenant alleged that the problems persisted despite a number of emails sent to and from the Landlord about the Landlord’s failure to address the issue of smoking in the complex and dog feces in the backyard.

The adjudicator determined that the Landlord did not take reasonable, appropriate or timely steps to address the issue of dog feces in the backyard or smoking in the complex, and ordered a 10% rent abatement for the months discussed.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File #TST-25542-12)

The tenants applied for an order determining that their landlord substantially interfered with their reasonable enjoyment because of excessive noise and second-hand smoke from the neighbour downstairs.

The tenants provided evidence of the noise complaints (police visited the basement neighbour 4 times and laid charges) yet offered no evidence to support their allegations of exposure to second-hand smoke.

The adjudicator determined that their reasonable enjoyment had been breached because of excessive noise, but dismissed the portion of their application dealing with smoke.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File #TST-25266-12)

The tenants applied for an order determining that, among other things, their landlord substantially interfered with their reasonable enjoyment. The tenants allege that when they moved into the unit they informed their landlord of their need for a smoke-free unit, and the landlord confirmed the apartment was non-smoking. However, the tenants allege that they were constantly exposed in their unit to second-hand smoke that seeped in from the basement unit.

The landlord confirmed at the hearing that the basement tenant did not have a no-smoking clause in his lease – something that was not communicated to the tenants when they moved in. In response to complaints from the tenants about the smoke, the landlord requested the basement tenant to smoke outside – something he claimed to have done consistently. However, the adjudicator determined that the basement tenant was not, on the balance of probabilty, telling the whole truth.

The adjudicator determined that because the landlord failed to serve any formal notice to the basement tenant in response to the tenants’ complaints of constant exposure to second-hand smoke, and because the landlord’s testimony lacked credibility, the tenants’ reasonable enjoyment had been breached.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File #SOT-26923-12)

The tenant applied for an order determining that the landlords harassed, obstructed, coerced, threatened or interfered with him for sitting and smoking on the front porch of the residential complex.

The landlords admitted to telling the tenants not to sit on the porch because it blocks access to the building for the other tenants. The landlords submitted a photo to support their assertion. The landlords also submitted that the tenant’s smoke drifts into their unit and affects their health: their son has asthma and the wife is a cancer and tuberculosis survivor.

The landlords provided a copy of the rental agreement, which indicates that the residential complex is smoke-free. The adjudicator determined that the landlords have a right to enforce the non-smoking provisions set out in the rental agreement and dismissed the application.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File # TST-20785-11)

The tenants applied for an order determining that their landlord substantially interfered with their reasonable enjoyment for a list of reasons, including exposure to second-hand smoke from the common areas. The tenants alleged that people smoke in the stairwell daily.

The adjudicator determined that the tenants failed to meet the tribunal’s burden of proof and dismissed this portion of their application.

Read the decision.

Ontario Landlord and Tenant Board, 2012 (File # SWT-33315-12 & SWT-32243-12)

The tenant applied for an order, among other things, determining that the landlord had substantially interfered with her reasonable enjoyment due to second-hand smoke infiltrating her unit through the ventilation system and the plumbing. The building was not held out to the tenant as a smoke-free property.

The adjudicator stated that at present there is no statute, regulation or bylaw prohibiting tenants from consuming tobacco in their own units. Further, it was determined that tenants smoking in their units does not amount to unlawful or illegitimate activity that would oblige the landlord to investigate or remedy.

The adjudicator determined that the landlord had more than adequately responded to the tenant’s complaints of smoke, and that the tenant had not provided sufficient evidence to demonstrate smoke infiltration. The application was dismissed.

Read the decision.

Ontario Landlord and Tenant Board, 2011 (File # TST-14498-11)

The tenants applied for an order determining that their landlord had substantially interfered with their reasonable enjoyment due to second-hand smoke infiltrating their unit from the stairwell. One of the tenants suffers from lupus which is made worse by exposure to SHS. It does not appear that the tenants signed a no-smoking lease.

The tenants testified that despite being assured by the landlord that the environment was smoke-free, SHS infiltrated their unit 4-6 times per day. The tenants provided a log book detailing the extent of their exposure, along with the complaints they had submitted to their landlord, the administrative office staff and security personnel. The landlord and property manager testified that they were unaware of the tenants’ complaints prior to the application being filed with the LTB.

The adjudicator determined that the landlord’s failure to respond to the tenants’ complaints seriously interfered with their reasonable enjoyment of the unit. The tenants had requested a 50% rent abatement for 3 months; the adjudicator granted a lump sum rent abatement of $500.

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Ontario Landlord and Tenant Board, 2011 (File # CET-11536-11)

The tenant applied for an order determining that the landlord had substantially interfered with the reasonable enjoyment of the rental unit because of SHS and toxic chemicals permeating the unit.

The adjudicator dismissed the application, noting that the landlord had acted reasonably and taken steps to address the tenant’s concerns by asking other tenants to stop smoking inside the rental complex. The landlord had also installed a seal around the tenant’s door and around the door of another unit.

The adjudicator noted that “a reasonable person who moves into a multi-tenanted building would find it acceptable and expect a reasonable level of intrusion of odours. A standard of absolute non-permeation of odours in a multi-tenanted building cannot be expected nor is it reasonable to expect.”

Read the decision.

Ontario Landlord and Tenant Board, 2010 (File # TET-09767-10)

The tenants applied for an order determining that their landlords substantially interfered with their reasonable enjoyment because of cigarette and marijuana smoke seeping into their unit from the unit next door. The tenants stated that the smoke poses a health risk to their family, especially their 9 month-old infant. There was no no-smoking clause in the lease.

The adjudicator determined that ongoing exposure to second-hand smoke “undoubedly constitutes substantial interference with the tenants’ enjoyment of the rental unit.” Further, it was determined that although the landlord did speak with the offending neighbours, it was not enough. The landlord did not give the offending tenants an N5 Notice of Termination.

The adjudicator ordered that upon receiving another complaint about the smoke, the landlord shall take timely, effective steps to prevent continued exposure, including but not limited to issuing an N5 notice. If the landlord fails to comply with the order, the tenants are entitled to a 25% rent discount until the conditions are met.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File #NOT-01128)

The tenants applied for an order determining that their landlords harassed, obstructed coerced, threatened or interfered with them and substantially interfered with their reasonable enjoyment of the unit. The tenants alleged that the superintendent continually confronted and harassed them about second-hand smoke escaping from their unit into neighbouring units.

The adjudicator determined the tenants’ testimony to be inconsistent and self-contradicting, and preferred the testimony of the witnesses appearing for the landlords. The tenants’ application was dismissed because of a lack of documentary evidence to support their allegations.

Read the decision.

Ontario Landlord and Tenant Board, 2010 (File # SOT-02485-10-RO)

The tenant filed a request to re-open the case because the landlord did not comply with the terms of their mediated settlement 3 months prior. The tenant had complained about second-hand smoke entering his unit from another tenant’s unit. There was no no-smoking policy in place.

Conditional upon the landlord “taking legal steps to correct the smoking problem,” the tenant had withdrawn the claim. However, the tenant alleged that because second-hand smoke continued to infiltrate his unit after the mediation, the landlord had breached the settlement agreement.

However, the landlord had served the other tenant an N5 (Notice to Terminate a Tenancy Early), which was a legal step to correct the problem. An N5 becomes void if the behaviour ceases. Even though the tenant continued to smoke in her unit, the complainant did not further notify the landlord of the smoke. Because no further complaints were received by the landlord, the N5 was voided.

The tenant had misunderstood the terms of the settlement and the application was dismissed.

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Ontario Landlord and Tenant Board, 2009 (File #TST-02227)

The tenants applied for an order determining, among other things, that the landlords substantially interfered with their reasonable enjoyment of the unit. The tenants alleged that second-hand smoke was infiltrating their unit from the neighbouring unit and was negatively impacting the health of their 9 year old daughter.

The adjudicator noted that the landlord had bought the building two years earlier, and had created a no-smoking clause for new tenants signing new leases. However, the landlord had inherited a few tenants who smoked, including the complainants’ neighbour. The adjudicator also noted that the landlord had responded to the smoke complaints, including talking to the smoking tenant to figure out a way to minimize the infiltration as well as installing a vent.

The adjudicator determined that the landlord had not substantially interfered with the tenants’ reasonable enjoyment of the property, and dismissed that portion of the application.

Read the decision.

Ontario Landlord and Tenant Board, 2009 (File #NOT-01128)

The tenants applied for an order determining that their landlords harassed, obstructed coerced, threatened or interfered with them and substantially interfered with their reasonable enjoyment of the unit. The tenants alleged that the superintendent continually confronted and harassed them about second-hand smoke escaping from their unit into neighbouring units.

The adjudicator determined the tenants’ testimony to be inconsistent and self-contradicting, and preferred the testimony of the witnesses appearing for the landlords. The tenants’ application was dismissed because of a lack of documentary evidence to support their allegations.

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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.

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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.

Read the decision.

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.

Read the decision.

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.

Read the decision.

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.

Read the decision.

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.

Read the decision.

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.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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