Smoking By Tenant Involves Substantial Interference Concerns Including Landlord Liability Risk IssuesPage last modified: July 08 2021
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Can a Tenant Be Evicted For Smoking That Interferes With the Enjoyment of Other Residents?
When a Landlord Takes Reasonable Steps to Resolve the Impact of a Smoking Tenant Upon Other Residents and Yet Other Residents Remain Affected and May Bring Legal Proceedings Against the Landlord and Thereby Expose the Landlord to Liability Risks the Landlord May Be Able to Evict Due to a Substantial Interference.
Understanding When a Smoking Tenant May Be Evicted For Interfering With the Rights of a Landlord
When the smoking by a tenant is interfering with the enjoyment of another resident within the residential complex, such can pose an awkward, and seemingly rock-and-a-hard-place, situation for a landlord. In this situation, a landlord may be subjected to competing legal duties, being the legal requirement to take reasonable steps to accommodate the tenant who is a smoker, while also being legally required to take reasonable steps to protect the affect tenant, or tenants, from the smoke and the potential health affects and quality of life disruption occurring due to the smoke and odor caused by the smoking tenant. Whereas the landlord is legally required to maintain the residential complex, which includes shared spaces, and is legally required to maintain each rental unit, in a fit and habitable state, the landlord may be subjected to risk of legal action from various directions.
Evicting a Tenant For Smoking That Is Disruptive to Others
In Ontario, the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, governs many issues that may arise within the relations between a landlord and tenants. The many issues that may arise include concerns relating to the duty of maintenance as prescribed upon a landlord per section 20 of the Residential Tenancies Act, 2006 as well as the right to seek eviction of a tenant that substantially interferes with the reasonable enjoyment of the landlord, the reasonable enjoyment of another tenant, or substantially interferes with the landlords legal rights, among other things, per section 64 of the Residential Tenancies Act, 2006. Specifically, the Residential Tenancies Act, 2006 states:
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
Additionally, previous legal decisions made by the Landlord Tenant Board as well as appeals to the Divisional Court confirm these viewpoints whereas such views were well explained within the prior cases of C M H A v. J-p T, TSL-09248-19 (Re), 2020 CanLII 31379 and D.I.I. v. C.C., SOL-70129-16 (Re), 2016 CanLII 44391 whereas it was stated:
4. A tenant is entitled to quiet enjoyment of their rented premises, which includes the right not to be regularly subjected to second-hand smoke. When a neighbouring tenant interferes with the right of quiet enjoyment, a tenant has no recourse against the neighbouring tenant but must rely on the landlord to restore quiet enjoyment. In the case of Hassan v Niagara Housing Authority, 2001 CarswellOnt 4890, the Divisional Court held that where a landlord receives a complaint about another tenant, a landlord has a positive obligation to investigate and to take reasonable steps, in a timely manner, to resolve the problem. Reasonable steps may include commencing an eviction proceeding against the offending tenant. A landlord’s failure to take adequate steps against the offending tenant may leave them vulnerable to applications filed by the effected tenants.
5. In the case of North Avenue Road Corporation v. Tom Travares, 2015 ONSC 6986 (Div. Ct.), the Divisional Court dealt with a very similar case regarding smoking, in which the Court found that the implications of smoking within an apartment building where other tenants are impacted is a matter of public interest. The Court found the landlord has a lawful interest in protecting itself against future claims by tenants and future tenants based on a failure to comply with the Act. Further the Court found that “the landlord has an obligation to take reasonable actions against a tenant that denies a neighbouring tenant enjoyment of the premises. I am of the view, knowledge of the existing smoking problem simply sets the landlord at legal risk of having an application brought for failing to comply with section 20 of the Act.”
6. On the evidence before the Board, I am satisfied on the balance of probabilities, that the Tenant’s smoking has substantially interfered with the reasonable enjoyment and lawful right, privilege or interest of the Landlord. The smoke emanating from the Tenant’s unit puts the landlord at legal risk from other tenants in the complex and substantially interferes with other tenants.
1. The Landlord served a Notice to End your Tenancy For Interfering with Others, Damage or Overcrowding with termination date of April 25, 2016 (N5). The N5 claimed that the Tenant has substantially interfered with another tenant’s or the Landlord’s reasonable enjoyment of the residential complex and/or lawful rights, privileges or interests. The N5 stated that the Tenant is consistently smoking in his rental unit which is interfering with the health and enjoyment of other tenants in the building. The N5 stated that the Tenant could avoid eviction by stopping the activity or correcting the behaviour described.
2. EK started managing the 19-unit residential complex in July 2015. She and her husband reside in the building. She stated that as of July 1, 2015, the Landlord made the residential complex a non-smoking building. She stated that the Tenant as a long-term tenant has been “grand-fathered”. However, in or about February 2016, she started receiving complaints from other tenants about cigarette smoke and tobacco smell from the Tenant’s unit.
3. EK described the Tenant’s unit as a basement apartment with no balcony and which is close to the laundry room. She testified that there is a tenant on the same floor as the Tenant (who does not wish to be identified) who has to put a towel under their door and keep the fire door open with a wedge. She stated that tenants have told her that they cannot stand the smoke and that they refuse to go to the laundry room. One tenant’s mother has COPD and cannot visit her because of the “breathing issue”. EK submitted letters from other tenants.
4. One tenant wrote:
…every time I go down stairs to do my laundry, I have to pass by unit 102 and the smell of cigarettes (smoke) hits me like a ton of bricks when open the door to that floor. Not to be gross but I went by the other units as well to see if I could smell cigarette smoke from those units…was just 102.
This smell is absolutely nasty and I don’t appreciate that I or my kids have to deal with this units ignorance. I’m sure it wouldn’t kill him to walk outside to smoke as much as smoking would.
5. Another tenant wrote:
…when I go too do my laundry on the first floor there is a strong presence of smoke. This has been going on for quite a long time. I have spoke with the owner and supt. And they have been trying too get this resolve. Also my son has allergies too smoke and has asthma also.
6. Unit #305 tenants wrote:
…the stench of smoking in the hallways is becoming unbearable…my husband and I are terribly sensitive to cigarette smoke and this situation is making our lives a misery. It’s gotten to the point where we’ve had to put a Febreeze soaked towel underneath our door to try and keep the smell out, but it still manages to seep in and get into everything. We’ve been suffering migraines and terrible sinus pain as a result of this issue.
7. EK stated that because the Tenant’s smoking is affecting other tenants, the Landlord instructed her to communicate with the Tenant about discontinuing his smoking inside the building.
8. The Tenant did not dispute that he smokes inside his unit. He has lived in the residential complex for close to fourteen (14) years. He has always smoked freely inside his unit. He smokes daily in the early morning before he leaves for work, and has a couple more cigarettes when he gets home from work. He sits in his living room and smokes, to relax. He opens his windows and puts a towel under his door to block the smoke.
9. The Tenant argued that the non-smoking policy effective July 1, 2015 is a unilateral alteration of the terms of his lease. He argued that the Landlord should not be able to change the conditions of his lease and prevent him from smoking in the building, just because they want to make the building a non-smoking building. He argued that he is not breaking any law by smoking inside his unit. He stated that there is no by-law and nothing in the Residential Tenancies Act, 2006 (the “Act”) which prohibits his smoking inside his unit.
10. Section 64 of the Act provides:
A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
11. I accept the Landlord’s evidence, by way of EK’s testimony and the letters submitted by other tenants, in regard to how the Tenant’s smoking has negatively affected other tenants. The Tenant did not challenge the Landlord’s evidence in regard to the complaints made by other tenants. The Tenant’s evidence focused on his having smoked freely in the building throughout his tenancy, for close to fourteen (14 years). The Tenant urged the Board to consider that the Landlord should not be able to unilaterally change the terms of his lease.
12. I understand the Tenant’s point. However, while the Tenant is not breaking any law and while the Landlord’s policy on non-smoking many not be binding, I find that the Tenant’s smoking inside the residential complex substantially interferes with the reasonable enjoyment of other tenants. There is no requirement under Section 64 that the act complained of be illegal or contrary to policy or to terms of the tenancy agreement. Section 64 covers any act which substantially interferes with the reasonable enjoyment of the residential complex by other tenants. In this case, the Tenant’s consistent smoking inside his unit, has caused other tenants to experience an unbearable stench of cigarette smoke, causing allergies, migraines and terrible sinus pains. It has caused other tenants to find excuses to be out of their own home. It has caused other tenants to avoid the laundry room. It has caused other tenants to miss out on visits from family members who suffer from inhalation of the Tenant’s cigarette smoke (such as the tenant whose mother has COPD). The negative effects on other tenants of the Tenant’s smoking inside the building, furnish basis for termination of this tenancy.
Interestingly, even where the complaining tenant moves out, the issue remains a concern whereas the landlord remains legally obligated to offer and provide a rental unit that is "fit for habitation" to any future tenant. Accordingly, per the Divisional Court case of North Avenue Road Corporation v Travares, 2015 ONSC 6986, a smoking tenant whose emanations may affect others, including others who may become tenants in the future, may be evicted for substantially interfering in the rights and duties of the landlord. In the North Avenue Road case, the Divisional Court specifically stated:
 The Board’s decision requires the landlord to rent, or sell, a unit that is not in a good state of repair or, more importantly, “fit for habitation”. With the responsibility that is imposed on the landlord by s. 20, that finding puts the appellant in “legal jeopardy”. I accept that the landlord may be able to rent this unit, but as set out by this court in Morguard Residential v. Peters, 2010 ONSC 2550, the landlord has a lawful interest in protecting itself against future claims by future tenants based on a failure to comply with s. 20 of the RTA.
 Furthermore, as set out in Hassan v. Niagara Housing Authority,  O.J. No. 5650, the landlord has a positive obligation to provide the (future) tenant with quiet enjoyment and take reasonable actions against a tenant that denies a neighbouring tenant enjoyment of the premises. I am of the view, knowledge of the existing smoking problem simply sets the landlord at legal risk of having an application brought for failing to comply with section 20 of the RTA.
Also interesting, the Landlord Tenant Board has said that smoking inside the residential unit, or outside the residential unit such as on a balcony, may result in a substantial interference. This issue of smoking on a balcony, and the view of the Landlord Tenant Board was addressed within the case of D.R.L.H.C. v. D.H., TEL-74017-16-RV (Re), 2016 CanLII 100370 wherein it was said:
5. At the outset I would observe that there is no distinction in the Residential Tenancies Act, 2006 (the 'Act') between a disturbing activity that occurs inside the walls of a rental unit or outside on a private balcony as the balcony forms part of the rental unit.
What Rights Does a Landlord Have When Prescribed Marijuana Is Affecting Others
Furthermore, and while this issue and area of law is constantly evolving, the use of medically prescribed marijuana may interfere in the reaonable enjoyment of others and therefore be a cause for eviction despite that such use is the result of a medical condition. In this regard, it appears that the law leans in favour of the interests of those who are adversely affected by the smoke and fumes from marijuana smoking than in favour of those who benefit or even require marijuana smoking as a remedy to illness. Indeed, it appears that the law views that tenants, among others, should be free from interferences caused by others even when the interference arises from a necessity. This view seems to accord with the ideal of majority rules as well as principles from nuisance law in that what is good thing for the one is unacceptable if such a thing is bad for the many, even when the thing in question is an otherwise legal thing. The case of Y.A., Y.E., S.A. & B.A. v Regina Housing Authority, 2017 SKORT 75; albeit a case from Saskatchewan, well summarizes this very point wherein it was said:
 In Raith v. Coles,  B.C.J. No 772, a nuisance case involving drifting second-hand smoke from one condominium unit to another, the applicants’ doctor considered it reasonable to suggest that the presence of cigar smoke in the apartment could have been a significant factor in the appearance of the physical symptoms of persistent upset stomach, with associated indigestion, heartburn, nausea, an extremely sore throat and the emotional strain of anxiety. The judge granted an injunction to prevent the smoke from continuing to bother the plaintiffs stating:
This is not a simple dislike of the smell – there is concern based on medical grounds. While the individual must be expected to put up with some inconvenience in today's world there comes a point where the perpetrator of a problem must curtail his actions when they become demonstrably harmful to others... There are many things a person may not do in his house or castle – …one of these things now is that he may not allow there to be emitted or discharged a noxious substance, in this case, cigar smoke and odour, from his premises...
 In Young v. Saanich Police Department, 2003 BCSC 926, the Supreme Court of British Columbia found that the legal medicinal marijuana smoke in a social housing project, the equivalent of one cigarette per day, unreasonably disturbed other tenant’s quiet enjoyment, because of the noxious smell and perceived health concerns, establishing that even a minimal amount of smoke is sufficient to constitute a breach of the covenant of quiet enjoyment and the right of the landlord to terminate a tenancy: “...Did the tenants disturb other tenants?...It is inconceivable that the tenant's right, indeed his need to smoke marijuana in order to treat his disease, could be used to defeat the rights of other occupants to peaceful enjoyment of their homes….” (para. 41)
 The Supreme Court of British Columbia went on to note:
I cannot ignore…the interests of the numerous tenants who were found to have been adversely affected by the marijuana smoke….The evidence suggests that the odour has made their suites virtually unliveable….In my view, the state interest in protecting tenants from unreasonably disturbing odours must prevail….To hold otherwise would permit a single apartment-dweller to dramatically impair the quality of life of his fellow tenants. One need only look to the lengthy history of the common law tort of nuisance to recognize that it has been a long-standing principle of our justice system that an individual's freedom to do as he wishes on his property is subject to the caveat that he not unreasonably disturb his neighbour's enjoyment of her property. (para. 127-128)
 The Supreme Court of British Columbia stressed that “the feelings and sensibilities of the other occupants are important factors to consider as those feelings and sensibilities may be central to their enjoyment of their home.” (para. 41)
 In Beverly E. Reeves v. Globe General Agencies (7 February 2007) Manitoba, Order # W2007-000506. (M.R.T.B.), a case involving a landlord instituting a non-smoking policy, the arbitrator stated:
I conclude that the rule will improve people's access to peaceful enjoyment of their units and of the complex, it will improve the safety, comfort and welfare of tenants, their guests, and workers at the complex, and it will reduce and eventually eliminate cleaning and replacement expenses brought on by the prevalence of tobacco smoke....
 In SOL-70129-16 (Re), 2016 CanLII 44391 (ON LTB), an offending tenant was a long-standing tenant of 14 years who had always smoked freely in his rental unit before and after work, until the landlord made the building smoke free; thereafter, as he was grandfathered in, the tenant continued to smoke but opened his window to let the smoke out and placed a towel under his door in an effort to block the smoke. The landlord received complaints from other tenants, concerning the smell of cigarette smoke negatively affecting others’ sensitivities and allergies, which included causing migraines and sinus pain. The landlord offered the offending tenant the option to avoid eviction by stopping the activity and correcting the behaviour. In applying the Ontario Residential Tenancies Act, the Ontario Landlord and Tenant Board found:
While the tenant is not breaking any law and while the Landlord’s policy on non-smoking may not be binding, I find that the Tenant’s smoking inside the residential complex substantially interferes with the reasonable enjoyment of other tenants. There is no requirement under Section 64 that the act complained of be illegal or contrary to policy or to terms of the tenancy agreement. Section 64 covers any act which substantially interferes with the reasonable enjoyment of the residential complex by other tenants. In this case, the tenant’s consistent smoking inside his unit, has caused other tenants to experience an unbearable stench of cigarette smoke, causing allergies, migraines and terrible sinus pains. It has caused other tenants to find excuses to be out of their own home….It has caused other tenants to miss out on visits from family members who suffer from inhalation of the tenant’s cigarette smoke….The negative effects on other tenants of the Tenant’s smoking inside the building, furnish basis for termination of his tenancy. (para. 12)
 The Board concluded:
The Tenant’s smoking inside the building provides ‘cause’ for eviction…because it disturbs other tenants and substantially interferes with their reasonable enjoyment of the residential complex, as provided by…the Act. (para. 13)
What Rights Does the Landlord Have When the Complaint Is By a Neighbour
The possibility also exists that a landlord could face legal action initiated by a person without a landlord tenant relationship such as a person living in a neighbouring property or unit owned by someone other than the landlord. This type of situation could arise where a person without a tenancy relationship with the landlord brings a claim against the landlord for substantial interference in reasonable enjoyment of the neighbouring premises due to the conduct of the tenant and where the landlord permitted the interfering conduct, such as smoking or other emanations. In this scenario, the neighbour without tenancy relations could bring a nuisance case against the landlord due to the conduct of the tenant. In the case of Deumo v. Fitzpatrick, 2008 O.J. No. 3015 smoke or fumes, albeit from a woodstove rather than smoking, were deemed a tortious nuisance and in the case of Fiuza v Creekside Real Estate Group Inc., 2019 CanLII 45625 it was held that a landlord may be liable for conduct by a tenant that interferes with the reasonable enjoyment of the property of a neighbour. Specifically, within the Deumo and Fiuza cases it was said:
18 The smoke caused Mrs. Deumo some pain and suffering by aggravating her existing sensitivities. These symptoms were reported to health caregivers contemporaneously and for that reason I accept her evidence and her husband's evidence about their complaints at the time. I find that they had these symptoms.
19 I find that they both suffered physically from the smoke. You do not have to be a doctor to draw that conclusion but without medical evidence in both cases I cannot say to what extent. I really think in any event that the pain and suffering was part of the annoyance and loss of use and enjoyment of the property and any relief on account of that should be subsumed in that head. The symptoms were not of the most serious, although they were certainly long lasting and annoying and disconcerting. They would not add much money to the claim but they are part of the loss of use and enjoyment of the property. There may well be long term risks from second hand smoke but the plaintiff was not in a position to prove that.
23 The acts of the defendant, Travers Fitzpatrick, which were permitted by Valerie Fitzpatrick were reckless, destructive, persistent, pervasive and heedless of their neighbours' physical integrity and property rights. The decision to burn all day and all night all weekend between the adjournment of the motion for an interim injunction and the hearing of that motion was nothing less than contumelious. In my view, punitive damages are appropriate.
 Generally, a landlord is not liable in nuisance if his property is in the control of a tenant. A landlord may be liable if he permits the creation of a nuisance in the tenancy agreement, or if the landlord continues to exercise a degree of control over the premises leased, such that a failure to abate the tenants’ nuisance was unreasonable. A landlord may be liable in situations where he leases property and the intended use conflicts with the neighbours, or is likely to cause a disturbance, such as a night club in a residential area or an asphalt plant in a subdivision. This is not the situation here.
As shown, per Fiuza, a landlord may be liable to a neighbour in circumstances where the landlord permitted a tenant to engage in conduct that is deemed a tortious nuiance; and per Deumo, smoke or fumes may be deemed a tortious nuisance. Accordingly, in addition to a landlord being exposed to legal risks arising where smoke from a tenant interferes with another tenant, a landlord may also be exposed to legal risks where smoke from a tenant interferes with a neighbouring property. With this said, the exact case scenario of a landlord bringing proceedings to the Landlord Tenant Board in an effort to evict a tenant for causing actual or potential legal risks to the landlord because of interference with a third party neighbour, appears as yet to happen.
Where a tenant smokes, either inside or outside, and substantially interferes in the reasonable enjoyment of another tenant living within the residential complex, or perhaps even substantially interfering with the reasonable enjoyment of a property owned by a third party person without tenancy relations to the landlord, the landlord may be subjected to liability risks. Where the conduct of the tenant exposes the landlord to liability risks, the landlord may apply to the Landlord Tenant Board and seek an under section 64(1) of the Residential Tenancies Act, 2006 to evict the tenant.Learn More About
Smoking By Tenant