All tenants are entitled to reasonable enjoyment in their home regardless of whether or not a lease was signed. Despite the fact that some tenants have successfully argued at the Ontario Landlord and Tenant Board that second-hand smoke constituted a breach of reasonable enjoyment, there are no guarantees that future similar applications will be accepted. It is not enough for smoke to be simply entering your apartment to be considered a breach of the covenant of reasonable enjoyment. You must convince the adjudicator that its presence is having such a negative effect that you are not able to use your apartment in a normal way, or that all or parts of your unit are uninhabitable because of the smoke.
In order to increase your chances of success, you must provide evidence that the smoke is frequent, on-going and substantially interfering with your normal use and enjoyment of the unit. Temporary discomfort or inconvenience does not constitute a breach of reasonable enjoyment.
Unfortunately, there are no guidelines in Ontario that dictate the quantity of smoke required to constitute an unreasonable disturbance. It is therefore somewhat unclear regarding the evidence required to meet this test.
This is why it is so important to document the extent, severity and impact of the problem and to collect as much evidence as possible to argue your case. Further, if your landlord refuses to take steps to address the problem and you choose to apply to the Ontario Landlord and Tenant Board for adjudication, you will need ample evidence to successfully argue your case.
Consider using this sample tenant log to track your efforts to address the problem.
- Identify how the smoke is entering your unit i.e. from your bedroom window, from the bathroom or kitchen fan, from the electrical outlets, etc.
- Try to determine where the smoke is coming from i.e. neighbour’s balcony, neighbour’s inside unit, outside smoking area or some other channel. Note that the movement of air in a building can be complex and that smoke can travel considerable distances between floors.
- Identify how often the smoke enters your unit on a daily or weekly basis. Do you smell the smoke all the time, or at certain times of the day? List the dates, times and frequency of occurrence.
- Identify how much smoke is entering your unit. This is difficult to assess, but is the smell overwhelming, or is there just a whiff of smoke? Does the smoke stay in one area or does it permeate other areas of the home? Does the smoke remain or does it subside after a time?
- Identify when the problem started. Did you start smelling the smoke as soon as you moved into your unit? Did you notice the smoke when a new resident moved in?
- Document symptoms or illnesses caused by the smoke infiltrating your home. Symptoms may include asthma attacks, headaches, burning and watery eyes, sore throats, chronic coughing, bronchitis, ear infections and heart problems, to name just a few.
- Indicate if the smoke is worsening a pre-existing health problem such as asthma, allergies, heart disease, high blood pressure, fibromyalgia, cancer, etc.
- Indicate whether the smoke seeping into your home is causing anxiety or fear due to the potential or actual health impacts on you or your family members.
- Indicate if you have an infant in the family. Babies who are exposed to second-hand smoke have a higher risk of dying from Sudden Infant Death Syndrome (SIDS).
- Has the smoke resulted in a reduction in the value of your tenancy agreement? In other words, have parts or all of your home become uninhabitable at times?
- Are you forced to stay out of certain rooms because of the smoke?
- Are you unable to open your windows or balcony door?
- Are you unable to use your balcony because of the smoke?
- Are you unable to use your fans or heating system?
- Are you unable to use certain cupboards, drawers or closets?
- Have you been forced to leave your home on certain days or at specific times to avoid the smoke?
- Are friends and family with health conditions unable to visit you because of the smoke seeping into your unit?
- Did your landlord misrepresent the tenancy with assurances that the building was smoke-free?
- Do you have any witnesses to verify this discussion? Was the building advertised as smoke-free or non-smoking?
- Do you have a copy of the classified newspaper advertisement?
- Obtain written proof from neighbours, friends and family concerning the amount and frequency of smoke entering your home. The more people who can verify your complaint, the stronger your case.
- Obtain a letter from your physician to verify that exposure to second-hand smoke is making you or your family members sick, or is aggravating an existing condition or illness.
- If the smoke is excessive, try contacting your local Public Health Unit. They may send someone out to ensure there are no violations of the Smoke-Free Ontario Act causing the smoke to enter your unit – i.e. smoking in common areas.