Fighting for the right to breathe clean air in your own apartment can be a confusing undertaking with no clear path to success. The Laws and Legal Issues section aims to simplify and clarify the issues related to smoke-free multi-unit housing by presenting information on:
- the laws that have a bearing on the problem of second-hand smoke infiltration in multi-unit dwellings in Ontario;
- a legal opinion on the prevention of smoking in multi-unit dwellings in Ontario that was commissioned by the former Ontario Tobacco-free Network, a provincial interagency network consisting of the Canadian Cancer Society, Ontario Division, the Heart and Stroke Foundation of Ontario and the Lung Association, with input from the Non-Smokers’ Rights Association; and
- relevant case law from the Ontario Landlord and Tenant Board.
- Smoking, Second-Hand Smoke and the Landlord and Tenant Board: Observations from 2010 – 2014
Tenants and landlords who cannot resolve their differences amicably can file applications for adjudication at the Ontario Landlord and Tenant Board.
The Board is a quasi-judicial dispute resolution mechanism with exclusive authority to rule on residential tenancy matters as set out under the Residential Tenancies Act, 2006. Adjudicators are appointed. Although adjudicators prefer to be consistent, their decisions are not bound by precedent and do not necessarily reflect official Board positions. Decisions are made using the “balance of probabilities” standard of proof, which essentially comes down to a question of credibility-adjudicators must decide whose side of the story is more likely to be truthful.
Relatively uncommon just 5 years ago, it appears that Ontarians are increasingly willing to take their second-hand smoke issues to the Board for adjudication. We have a modest collection of such decisions, which includes both tenant applications seeking relief from second-hand smoke as well as landlord applications enforcing their no-smoking policies.
It is not possible to speak in broad terms about which applications are treated more favourably by adjudicators, given that every case is considered individually and on its own merit. Indeed, there are a number of factors taken into consideration that contribute to an adjudicator’s final judgment, including how the complainant presented himself and how credible he is perceived to be, what kind of evidence was introduced, what the parties did prior to making the complaint to try and solve the problem amicably, whether lawyers were involved, etc. Much also depends on who presides over the case, including his or her own personal biases and attitudes.