Section 47 of the Ontario Residential Tenancies Act, 2006 states that a tenant may terminate a tenancy by giving notice of termination to the landlord in accordance with section 44. Section 44 sets out the period of notice required for different types of tenancies. Tenants on a monthly or yearly tenancy must give their landlords at least 60 days notice of their intention to terminate the lease.

If you cannot or are unwilling to remain in your apartment for the required notice period, you can try asking your landlord (in writing) to be released from your lease without penalty. Section 88 of the Act states that:

If a tenant abandons or vacates a rental unit without giving notice of termination in accordance with this Act and no agreement to terminate has been made or the landlord has not given notice to terminate the tenancy, a determination of the amount or arrears of rent owing by the tenant shall be made…

In other words, you can’t just leave because you are still on the hook to pay the rent.

Draft an unemotional letter to your landlord explaining the situation and describing all the steps you have taken to try to rectify the problem. Limit the letter to 4 paragraphs on one page.

Paragraph #1: Detail factual information including your address and unit number, how much you pay in rent and how long you have lived in the unit.

Paragraph #2: Explain the nature of the problem and how you have tried to fix it (what you have tried, who you have spoken with, etc.). Be sure to describe how your involuntary exposure to second-hand smoke is affecting your health or the health of your family, and how its presence is breaching your right to reasonable enjoyment.

Paragraph #3: Request to be released from your lease without penalty, and indicate the date you would like to move out.

Paragraph #4: Request a response from the landlord within a reasonable time frame such that you can move forward knowing his or her position. Sign and date the letter.

Your request may carry more weight if you attach a doctor’s letter or a letter from your public health unit. Make yourself a copy and then send or hand-deliver the letter. Hopefully your landlord will not want the bother of fighting you over your chosen termination date and will agree to your request. If so, try to get his or her consent in writing.

If your landlord refuses your request, you will need to file a T2 application (Application about Tenant Rights) citing breach of reasonable enjoyment at the Landlord and Tenant Board. On this form you can request an order for your landlord to terminate the tenancy on a certain date.

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