Holy Smokes - You Could Be Evicted For Smoking In Your Own Apartment
What has been described as a "war on smokers" continues as the space where smoking is allowed decreases. A recent Divisional Court appeal decision illustrates that a residential tenancy could potentially be terminated and the tenant evicted solely for smoking in his own apartment.
The case involved the appeal of a Landlord Tenant Board ("LTB") decision which dismissed a landlord's application to terminate the tenancy of a lifetime smoker. The smoker had lived in the apartment for 22 years, most of which had been problem free. Smoking was not prohibited by the rental agreement and the tenant testified that he chose the building because it allowed smoking.
In August 2013, the tenant's neighbour complained to the landlord that cigarette smoke and odour was substantially interfering with her use and enjoyment of her apartment. The landlord and the tenant both made efforts to resolve the issue. Various technicians were hired to block air vents, baseboards and thresholds of doors were sealed, and larger fans were installed on the roof. The smoker tenant cooperated fully with the landlord and even personally attempted to resolve the issue by purchasing an air purifier, installing a fan in the window and, at times, smoking on the balcony. The problem persisted and the complaining neighbour moved out.
Two weeks after the complaining neighbour moved, the landlord served the tenant with notice to terminate the tenancy on the grounds that he was causing a substantial interference with the reasonable enjoyment of the residential complex.
The landlord testified that he was unable to sell or rent the vacated unit. The tenant argued that the landlord had not made any attempts to rent the unit because the building was being converted from apartments to condominiums. The LTB dismissed the application. It found that the smoking substantially interfered with the neighbour's reasonable enjoyment of her apartment. However, the LTB exercised its discretion not to evict the smoker because:
(1) the Respondent has lived and smoked in his unit for 22 years;
(2) the Respondent’s tenancy agreement does not prohibit smoking in his unit;
(3) there is only one unit on the same floor as the Respondent’s unit, and it is currently vacant; and
(4) the evidence did not establish that the Respondent’s smoking is preventing or will prevent the Appellant from re-renting or selling the neighbouring unit.
On appeal, Divisional Court ruled that the LTB had erred by failing to consider the landlord's responsibility to maintain a residential complex in a state of good repair, fit for habitation and for complying with health, safety, housing and maintenance standards. Specifically, the landlord must ensure that units are fit for habitation. The landlord has a lawful interest in protecting itself against future claims by future tenants.
The matter was then sent back to the LTB for another hearing.
As noted, this case appears to be another battle in the war on smokers as Divisional Court overlooked the fact that only one neighbour complained during 22 years of tenancy. Potential for eviction now exists merely if a landlord believes that s/he might have future problems with complaints.
North Avenue Road Corporation v Travares, 2015 ONSC 6976 https://www.canlii.org/en/on/onscdc/doc/2015/2015onsc6986/2015onsc6986.pdf
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