The applications listed below were made by landlords who had no no-smoking policies in place. Most of the applications cite interference with the reasonable enjoyment or lawful right, privilege or interest of the landlord.

Ontario Landlord and Tenant Board, 2014 (File # TSL-51247-14)

In this case the landlord applied for an order to determine that the tenant, another occupant or someone he permitted in the complex had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

The landlord claimed that he had received numerous complaints of exposure to second-hand smoke (SHS) from FYC, the neighbouring tenant. In fact, the landlord alleged that the smoke was so bad that FYC had moved out. The building is a mid-rise condominium with rental units. The building has no policy prohibiting smoking, and there are only two units on the floor where the tenant lives. The tenant has lived in the building for 22 years. The landlord brought along as witnesses FYC and the manager of the complex.

The landlord had taken a number of measures to try to stop the smoke, including blocking vents, replacing older doors, and sealing the radiators and pipes. Unfortunately, none of these measures had successfully prevented the smoke from migrating into FYC’s unit. The landlord did not attempt to re-rent or list the condo for sale after FYC moved out because of the fact that smoke continued to infiltrate the unit.

The adjudicator agreed that the SHS had substantially interfered with FYC’s reasonable enjoyment, but noted that since FYC had vacated the unit, the point was now moot. Similarly, the adjudicator also agreed that the smoke’s role in the tenant’s departure constitued interference with the landlord’s  lawful right, privilege or interest. However, because the landlord had not tried to re-rent or sell the unit, the adjudicator was not satisfied that the smoke would be a problem for the next occupant. The landlord’s application was dismissed.

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Ontario Landlord and Tenant Board, 2014 (File # TEL-46940-14)

This is a complicated case that although included smoking, exposure to second-hand smoke (SHS) and breach of fire safety, involved a number of other factors which taken together resulted in the tenant’s eviction. The landlords filed an application for an order to terminate the tenancy and evict the tenant because he, another occupant or someone he permitted in the unit:

  • wilfully or negligently caused undue damage to the premises;
  • committed an illegal act involving illegal drugs;
  • seriously impaired the safety of any person;
  • substantially interfered with the reasonable enjoyment of the residential complex by the landlords or another tenant; and
  • substantially interfered with the lawful right, privilege or interest of the landlords.

The building comprises 6 units, and the landlords reside in the building with their young children. Other families with children also live in the building. The landlords allege that the tenant was smoking in the unit, and that the smell of marijuana was pervasive throughout the building. The male landlord approached the tenant and requested that he cease smoking marijuana in the unit, to which the tenant agreed. Other tenants had complained to the landlords about the smell, and one tenant threatened to move out if the problem didn’t cease. There was no policy prohibiting smoking in the building.

However, the landlords’ issues with this tenant did not end there: the landlords alleged that the tenant was loud and disturbed them and other tenants with partying and a high level of people traffic coming and going; that the tenant was hostile and confrontational to the male landlord on an ongoing basis; and that he had damaged the rental unit by removing the smoke alarm and a firewall ceiling in the closet, among other things.

The landlords brought their contractor as a witness, and also produced emails and texts from other tenants to support their testimony. Unfortunately, the landlords stated that none of their other tenants was comfortable appearing in person to testify for fear of reprisal by the tenant in question, whom they had witnessed utter threats and behave aggressively toward the landlords.

The contractor stated that while he was attending to complaints by the tenant of damage in the unit, he found marijuana and drug paraphernalia stashed in the ceiling of the closet. The tenant denied that they were his, and accused the landlord of planting them in his unit. He also denied smoking in his unit (despite his earlier agreement not to) and blamed other tenants for the pervasive smell of marijuana smoke in the building. With respect to damage in the unit, the tenant denied removing the firewall ceiling in the closet as well as the smoke detector.

The adjudicator favoured the landlords’ testimony over that of the tenant. In addition, the tenant’s aggressive behaviour toward the landlords during the hearing provided additional evidence to the adjudicator to support their claims. The adjudicator ordered the tenancy terminated and stated that the tenant must pay the landlords $170.00 for the cost of filing the application.

This was not a straightforward case, with many factors contributing to the tenant’s eviction. Interestingly, the issue of exposure to SHS and its negative impact on people’s health was not a factor. Damage to the unit and safety breaches, in particular removal of the smoke detector and the firewall ceiling, were key aspects. In addition, the adjudicator recognized marijuana as an illegal drug and was satisfied that although there was no evidence of trafficking, the use of it in the unit constituted an illegal activity.

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Ontario Landlord and Tenant Board, 2014 (File # TEL-53165-14-SA)

In this case, the landlord applied for an order to terminate the tenancy and evict the tenants because they failed to meet a condition specified in an earlier mediated settlement, the terms of which prevented the tenants, their guests and/or occupants from smoking marijuana in the rental unit or at the residential complex. There is no mention of no-smoking policy in the lease for the residential complex. Section 78 of the Residential Tenancies Act allows a landlord, without notice to the tenant, to apply to the Board (with no hearing required) for an order to terminate a tenancy if various criteria are satisfied. The landlord had secured an order using section 78, which the tenants requested be set aside, asserting that they did not violate the terms of the mediated settlement.

The landlord claimed that the tenants continued to smoke marijuana in the unit, and had present at the hearing 5 witnesses: 2 superintendents, 2 neighbouring tenants, and a former police officer knowledgeable about the use/smell of marijuana. Using the sniff test, and backed up with written notes in the case of the superintendents, all witnesses alleged that the smell of marijuana (noted on a number of occasions) originated in the tenants’ unit. The tenants denied the allegations, either claiming they were away from the unit, or that the odour was incense. On one occasion the superintendents noted the presence of a fan placed on the tenants’ window sill.

Using a balance of probabilities, the adjudicator favoured the landlord’s testimony over that of the tenants. The landlord provided credible, detailed evidence, including dates and time of day, that clearly indicated that the tenants continued to smoke marijuana in the unit, disturbing others and compromising the landlord’s lawful right, privilege and interest.

The adjudicator denied the tenants’ request to have the order set aside and ruled that they would have to vacate the unit by the end of the year. However, given that the female tenant was scheduled to have surgery in December, the adjudicator permitted the tenants to remain in the unit until a few weeks following the surgery, provided there would be no more incidents of marijuana smoking.

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Ontario Landlord and Tenant Board, 2014 (File # EAL-42430-14)

In this case, the landlord applied for a number of orders, including one 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 in a residential complex that has three or fewer units. The landlord alleged that the tenants’ smoking in the past 3.5 years has caused two sets of tenants in unit #3 to vacate, and that the landlord’s winter sublet tenant (currently in unit #3) was at risk of leaving too. The landlord resides in the basement unit and the smoking tenants reside in unit #2. The lease does not contain a no-smoking clause.

The landlord filed an N7 application, which was contested by Duty Counsel (representing the tenants) on the basis that not enough information was provided in the form for the tenants to address, defend or dispute the landlord’s allegations. It was established in the case of Ball v. Metro Capital Property, Toronto Docket No. 48 / 02 (Divisional Court) that a Notice to Terminate a Tenancy Early must contain a level of detail about the nature of the alleged offence(s) along with date(s) and time(s) that the alleged offence(s) took place so that the tenant is able to address, defend, or dispute the landlord’s allegations.

Although the adjudicator accepted that the N7 form was defective as it related to other allegations regarding excessive junk and garbage around the residential complex, he stated that sufficient detail had been included about the smoking. The tenants did not deny that they smoked in their unit.

However, two key factors worked against the landlord’s application. First, the landlord failed to prove how the smoking had substantially interfered with her own enjoyment of her unit. Instead, she focused on that fact that the smoking had bothered previous tenants, and was currently bothering the tenant in unit #3. However, she failed to provide any evidence to this effect. Moreover, the tenants in unit #2 stated that the subletting tenant was also a smoker and had no issues with their smoking–a statement which the landlord did not contest.

The adjudicator dismissed the landlord’s application, stating that on the  balance of probabilities, the tenants’ smoking did not constitute a substantial interference with the landlord’s lawful rights, privileges or interests, nor her reasonable enjoyment.

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Ontario Landlord and Tenant Board, 2014 (File # TNL-61699-14)

The landlord applied for an order to terminate the tenancy and evict the tenant for failing to meet a condition specified in order TNL-58458-14 (issued July 7, 2014). Unfortunately, the specific circumstances surrounding order TNL-58458-14 cannot be reported, as it could not be located electronically. It is unclear if the landlord had a no-smoking policy in place.

Nonetheless, the condition specified in order TNL-58458-14 is as follows: “The Tenant shall not engage in any behaviour as described in the N5 Notice to Terminate a Tenancy Early, dated May 9, 2014 with regard to smoking substances in the rental unit that would create an odour or smoke that substantially interferes with the reasonable enjoyment or lawful right privilege or interest of another tenant.” This condition arose from complaints from other tenants regarding the smell of “nefarious substances” emanating from the tenant’s unit, and discomfort and concern for their health regarding exposure to second-hand smoke.

Fearful of losing her rent-geared-to-income unit, the tenant emailed the landlord for clarification on the condition, asking in particular if smoking cigarettes in her unit was a problem. The landlord replied that smoking cigarettes was not a problem, but that smoking marijuana was illegal. The tenant then advised the landlord that she would be smoking cigarettes in her unit.

The landlord relied on evidence in the form of written notes from his superintendent who lives above the tenant and who alleged that her unit was filled with marijuana smoke on two occasions.

Recognizing long-standing animosity between the superintendent and the tenant, the adjudicator determined that the superintendent was quick to find fault with the tenant, and that the evidence provided was insufficient to prove that the smoke had originated in the tenant’s unit. The landlord’s application was dismissed and order TNL-58458-14 remains in effect.

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Ontario Landlord and Tenant Board, 2013 (File #CEL-32247-13)

The Landlord applied for an order to terminate the tenancy and evict the Tenant because the Tenant did not pay rent owing.

Among other things, the Tenant claimed that the Landlord harassed him over smoking in the rental unit. The Landlord agrees that he does not want the Tenant smoking in the rental unit because his wife is allergic to cigarette smoke. The Landlord resides on the upper level and the Tenant resides in the basement. The Landlord claimed that the smoke from the Tenant’s unit negatively affects his wife.

The adjudicator ordered that while there is no law that stops a tenant from smoking in the rental unit, the Tenant has to be mindful that the Landlord’s wife is allergic to cigarette smoke and should limit his smoking to the outside of the building.

The tenancy between the Landlord and Tenant was terminated, unless the Tenant voids the order by paying the Landlord the amount calculated in the decision.

Note that the Landlord did not provide any evidence of second-hand smoke entering his unit, nor any details regarding his wife’s health when she is exposed to SHS.

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Ontario Landlord and Tenant Board, 2013 (File #EAL-28438-12)

The Landlord applied for an order to terminate the tenancy and evict the Tenants because they caused undue damage to the premises. The Landlord also applied for an order requiring the Tenants to compensate the Landlord for the damage, and because they substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant. The Landlord also claimed compensation for each day the Tenants remained in the unit after the termination date.

The long-time Tenants claimed that they have been requesting repairs since the day they moved into the rental unit. The Landlord testified that she was trying to sell the building, and that the Tenants were interfering with her ability to show their unit.

The adjudicator was not satisfied that the Landlord had a basis on which to blame the Tenants for damages in the rental unit, with the exception of discoloration of the walls due to excessive cigarette smoke. This conduct was determined to have substantially interfered with the Landlord’s and the other tenants’ reasonable enjoyment of the residential complex.

Based on the Landlord’s testimony, the adjudicator determined that the Tenants interfered with her ability to properly show the unit, and that this conduct also substantially interfered with the lawful right, privilege or interest of the Landlord.

The adjudicator ordered the Tenants to refrain from interfering with the Landlord’s or the Landlord’s agent showing the rental unit in order to sell it. The Tenants were also ordered to wash and clean the walls and ceilings of the unit to remove the discolouration and grease caused by excessive smoking, in preparation for painting by the Landlord.

The remainder of the Landlord’s application was dismissed.

Note that without any discussion as to how many cigarettes were being smoked in the unit per day, the adjudicator determined that the smoking was “excessive.” Also note that in the absence of complaints of SHS infiltration from other tenants, the adjudicator determined that the smoke stains on the ceilings and walls constituted both undue damage AND interference with the Landlord’s and the other tenants’ reasonable enjoyment of the residential complex.

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Ontario Landlord and Tenant Board, 2013 (File #TNL-44510-13)

The Landlord applied for an order to terminate the tenancy and evict the Tenant because she or another occupant of the rental unit committed an illegal act or carried out, or permitted someone to carry out an illegal trade, business or occupation in the rental unit or the residential complex. The Landlord also claimed compensation for each day the Tenant remained in the unit after the termination date.

The Landlord testified receiving numerous complaints about marijuana odour emanating from the rental unit in question. The Landlord’s staff have also observed individuals, who have been permitted in the rental unit by the Tenant, smoking marijuana cigarettes in the rental unit.

The adjudicator noted that unless prescribed for medical purposes, possession of marijuana in Canada is illegal under the Controlled Drugs and Substances Act (S.C. 1996, c.19). Accepting the Landlord’s testimony, the adjudicator ordered the tenancy terminated and also awarded costs to the Landlord, including $170 for filing the application.

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Ontario Landlord and Tenant Board, 2013 (File #TNL-46256-13)

In this case, the Landlord applied for an order to terminate the tenancy and evict the Tenant because the Tenant had wilfully or negligently damaged the rental unit and because he substantially interfered with the reasonable enjoyment of the residential complex by other tenants and the Landlord. The Landlord also claimed compensation for each day the Tenant remained in the unit after the termination date.

The decision does not indicate if the unit was designated as smoke-free, and it does not appear that the landlord submitted evidence to substantiate his claims (such as complaints from other tenants about second-hand smoke infiltration into their units). There was no description of the nature of the damage being alleged.

The adjudicator ordered that the tenancy be terminated, and ordered daily compensation to the Landlord if the Tenant does not move out of the unit on the appointed date. Starting on the day of the hearing and continuing up to the day the Tenant moves out of the unit, the Tenant shall not smoke marijuana inside the residential complex; he must also clean up after his dogs.

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Ontario Landlord and Tenant Board, 2011 (File # SWL-20829-11)

The landlord applied for an order to terminate the tenancy and evict the tenant based on breach of reasonable enjoyment of another tenant living upstairs, who said that smoke was entering her unit.

Citing a lack of a provision in the lease prohibiting smoking in the rental unit, and that the upstairs tenant was never promised a smoke-free environment, the adjudicator ruled that smoking could not be considered unreasonable conduct that substantially interfered with the other tenant’s reasonable enjoyment. The application was dismissed.

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Ontario Landlord and Tenant Board, 2010 (File # TEL-03334-10)

The landlord applied for an order to terminate the tenancy and evict the tenant due to failure to pay rent (L1) as well as substantial interference with reasonable enjoyment or lawful right, privilege or interest of the landlord in a residential complex with three or fewer units (L2).

The landlord and her spouse live in the upstairs unit of a house and rent the basement. The landlord alleged the tenant and her guests smoke in the unit which affects her health. The landlord has had 5 heart by-pass surgeries and has been advised by her doctor to avoid exposure. Despite multiple requests to the tenant to stop smoking, the smoke persists.

The adjudicator ordered the tenant to pay the rent owing, and terminated the tenancy, confirming involuntary exposure to second-hand smoke as a substantial interference of reasonable enjoyment as well as a health hazard.

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Ontario Landlord and Tenant Board, 2009 (File # TSL-22848)

The landlord applied for an order to terminate the tenancy and evict the tenant because he, among other allegations, substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant and because of safety concerns.

The landlord alleged that the tenant smoked cigarettes and marijuana in his room and constantly removed batteries from the smoke detector and carbon monoxide detector. The landlord confirmed that permission had been granted to the tenant to smoke in the building until the weather warmed up. The parties disagreed as to when the weather warmed up, and also where smoking was permitted.

The adjudicator concluded that there was no evidence to support either allegations and dismissed the application.

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Ontario Landlord and Tenant Board, 2009 (File #TEL-23495, TEL-22459)

The landlord applied for an order to terminate the tenancy and evict the tenant because in addition to failure to pay the rent, the landlord claimed the tenant had wilfully or negligently caused damage to the premises as well as having substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant. With respect to the issue of smoking, the landlord claimed that the tenant’s smoking made other tenants sick.

The adjudicator noted that the landlord had no evidence to support the assertion of other tenants being made sick by the smoke, and concluded that the smoking did not constitute substantial interference with the other tenants’ reasonable enjoyment. Although the landlord’s application for termination of the tenancy was granted based on other facts, and various compensation was awarded, the smoking issue was dismissed.

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Ontario Landlord and Tenant Board, 2009 (File # EAL-18661)

The landlords applied for an order, among a lengthy list of orders, to terminate the tenancy and evict the tenant because he wilfully or negligently caused undue damage to the premises, among other reasons. The landlord claimed part of the damage was due to cigarette smoke.

The adjudicator asserted that the tenancy agreement contained “unenforceable covenants” such as the words ‘no smoking.” The tenant argued the rule was added after the tenancy agreement was signed. The adjudicator noted that the words were crowded in the margin and unintelligible.

The adjudicator concluded, on the balance of probabilities, theat the words were added after the fact, but continued by noting, “this is a moot point since the RTA does not prohibit smoking unless the facility is shared with someone who has allegies to smoke or other ailments such as asthma that would be exacerbated by cigarette smoke.”

No award for smoke damage was granted, with the adjudicator noting that it was not proven.

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Ontario Landlord and Tenant Board , 2009 (File # EAL-13845)

The landlord applied for an order to terminate the tenancy and evict the tenants because they, or another occupant or guest had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord in a complex with three or fewer units.

The landlord claimed the tenants made too much noise and that their cigarette smoke bothered him. There was no no-smoking policy in place and the landlord provided no other evidence. The application was denied.

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Ontario Landlord and Tenant Board, 2009 (File # TSL-20395)

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

  • The tenant seriously impaired the safety of any person; and
  • The tenant did not comply with the terms of their earlier mediated settlement to pay the rent owing.

The landlord alleged that in response to his request to stop smoking in the unit, the tenant uttered threats of bodily harm against the landlord and other tenants. The tenant conceded that he was upset about the smoking issue.

Because the rent was still in arrears, the adjudicator granted the landlord’s request to re-open the application. The adjudicator determined that the tenant seriously impaired the safety of other persons and ordered the tenancy terminated. The adjudicator also granted compensation to the landlord for rent owing, for the use of the unit until he moves out and for the cost of filing the application. The landlord was also granted permission to file the order with the Sheriff to enforce the eviction, if necessary.

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Ontario Landlord and Tenant Board, 2009 (File # NOL-07000)

The landlord applied for an order to terminate the tenancy and evict the tenant because the tenant substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

The adjudicator determined, among other things:

  • The tenant smokes in her unit;
  • The landlord and tenant did not discuss the issue of smoking prior to the tenant moving in;
  • The tenant purchased an air filter to reduce the smoke.

The adjudicator ruled that the application is dismissed, concluding that the smoking does not constitute substantial interference with reasonable enjoyment.

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Ontario Landlord and Tenant Board, 2009 (File # SOL-18082)

It is not clear if the landlord had a no-smoking policy in place. The landlord applied for an order to terminate the tenancy and evict the tenant because she or another occupant or guest substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.

The adjudicator determined that the N5 application, Notice of Termination, did not contain sufficient details (including dates and times that the tenant was smoking in the rental unit) and was therefore void. The adjudicator referred to Ball v. Metro Capital Property (2002)–a binding case from Divisional Court. The application was dismissed.

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Ontario Landlord and Tenant Board, 2008 (File # CEL-09021 & CEL-10081)

This issue was brought before the board in two separate applications, one month apart.  The first application was dismissed for lack of information, so the landlord brought evidence and his agent to support his application for the second hearing.

The landlord leased his basement apartment to tenants. He applied for an order to terminate the tenancy and evict the tenants claiming interference with reasonable enjoyment. He cited the smell of cigarettes as a cause of serious health issues to him and his family, and that the tenants had damaged the unit.

At the hearing the landlord stated that the police had been called to the unit on six occasions. This claim, or the particulars of the alleged smoking such as dates and times that it had taken place, were not mentioned in the notice.  The adjudicator determined that in the case of Ball vs. Metro Capital, the Court found a notice of termination deficient when it fails to provide details about the reasons for the eviction notice. As no details were provided in the notice, it was ruled defective and therefore void. The landlord did not submit evidence to indicate that second-hand smoke was causing serious health issues to his family, nor did he provide proof of damage. The landlord’s application was therefore dismissed.

A month later the landlord applied for an order to evict the tenants again. This time he brought the application forward because of non-payment of rent, damage to the premises and interference with reasonable enjoyment, among other reasons. He claimed that smoking had taken place in the unit and produced an advertisement from the newspaper describing the unit as ‘no-smoking’. He also submitted a letter from his doctor stating the deteriorating medical conditions of his family were a result of inhaling second-hand smoke from the basement apartment. The tenants did not appear at the hearing to defend the application.

The landlord’s agent addressed the concerns that arose in the previous hearing from the case law of Ball vs. Metro Capital. The adjudicator agreed with the agent’s rationale that no details with regards to date and time were possible given that smoking occurred in an area under the exclusive possession and control of the tenants.

In his decision the adjudicator found that the tenants’ conduct had substantially interfered with the landlord’s and his family’s reasonable enjoyment, and had adversely impacted upon their health. He ordered the tenancy to be terminated, and the tenant to pay the landlord rent owing, compensation plus the cost of filing the application. The adjudicator also ruled that his order was ‘non remedial’ – meaning that the notice of eviction was in effect even if the tenants paid costs and their overdue rent.

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Ontario Landlord and Tenant Board, 2007 (File # TEL-00016)

The landlord applied for an order to terminate the tenancy and evict the tenant because he, another occupant of the rental unit or a person the tenant permitted in the complex has seriously impaired the safety of any person.

The landlord alleged that the tenant, who lives upstairs, smokes occasionally which poses a health hazard for her family. The landlord testified that her husband’s health is vulnerable due to medical complications, and that the tenant leaves his window open exposing her family to cold drafts. The landlord also alleged aggressive behaviour on the part of the tenant.

The tenant did not deny smoking in the unit and testified that he has complied with her warnings and requests to shut the window. The adjudicator was not satisfied that the tenant’s behaviour constituted serious impairment of the landlord’s safety and therefore dismissed the application.

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Ontario Rental Housing Tribunal, 2006 (File # SWL-87015)

The landlord applied for an order to terminate the tenancy and evict the tenants because they had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord who also lived in the building. The landlord stated that the tenants’ smoking was the cause.

The landlord testified that there is another unit in the building into which the tenants could move, but the rent is higher. The tenants do not want to pay the higher rent, and have changed the arrangement of their unit so that the room in which they smoke is not next to the landlord’s unit.

The adjudicator ruled that if there is an airflow issue, the landlord should address that instead of terminating the tenants’ tenancy. The application was dismissed.

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Ontario Rental Housing Tribunal, 2003 (File # TSL-52189)

The landlord, who had recently bought a house with a pre-existing basement tenant who smoked, claimed that her tenant’s second-hand smoke was substantially interfering with her reasonable enjoyment of the house. There was no written lease and no oral agreement that addressed the issue of smoking.

The adjudicator ruled that, despite the tenant having a prima facie right to smoke owing to the lack of a no-smoking rule, the landlord’s reasonable enjoyment of the house had indeed been interfered with and that she had a right to be free of the risks of smoking in her unit. The adjudicator ordered that the landlord would be able to obtain an eviction order for non-compliance.

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Ontario Rental Housing Tribunal, 1999 (File # TEL-04742)

The landlord applied to evict the tenant from her basement apartment claiming that rent payments were in arrears, and that the tenant had seriously impaired her safety and/or had interfered with her reasonable enjoyment by smoking. The tenancy agreement was oral and there was no reference to a ban on smoking. The landlord gave evidence that she had allergies, and her adult daughter stated that the smoke caused the landlord some skin dryness and discolouration, sleeplessness and anxiety. No medical evidence was provided to support this claim.

In his determinations the adjudicator stated that a serious allergic reaction suffered by the landlord in these circumstances may justify termination, but that in this case there was an absence of evidence (no medical report or letter from a doctor). He further commented that the symptoms described are not generally known to the public as a consequence of exposure to second-hand smoke. He also noted that:

  • The Act provides for termination where an animal causes a serious allergic reaction, which is a limitation on the right of a tenant to otherwise keep a pet; and
  • By analogy, it is arguable that a landlord should be able to terminate for smoking even when the tenant otherwise has a right to smoke in his unit, if it causes a serious allergic reaction.

The adjudicator ruled that the tenancy be terminated unless the tenant paid the landlord back rent and costs for filing the application. If the tenant paid the costs as described within the time-frame stated, the order for eviction would be void and the tenant could remain.

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Ontario Rental Housing Tribunal 1998 (File # TEL-01084 & 2000 File # TEL-14875)

The landlord made 2 applications to terminate a tenancy and evict the tenants over a two-year period. In 1998 the landlord applied for an order to terminate the tenancy and evict the tenant because second-hand smoke from the tenant’s rental unit traveled into the landlord’s living quarters and impaired the safety of her daughter. Her daughter suffers from an undisputed medical condition and is highly sensitive to smoke.

This application had been re-opened because the tenant failed to meet the terms of a mediated settlement. It was now ordered that smoking be strictly prohibited in the rental unit, and that any non-compliance would result in the landlord being at liberty to apply to the Tribunal, without notice to the tenant, to terminate the tenancy and evict the tenant.

In 2000 the landlord applied for an order to evict the tenants because they had failed to meet the condition issued in the above ruling that stated ‘smoking in the rental unit is strictly prohibited.’ The landlord failed to present evidence that the tenants had breached the condition and that the smell of smoke came from their apartment, not from where the landlord allowed smoking on the front and back porches. The adjudicator dismissed the landlord’s application.

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