The Non-Smokers Rights Association (NSRA) conducted an in-depth review of dispute resolution decisions across Canada, including BC. The purpose of the review was to:

1. Identify key issues for tenants who are applying for hearings at Residential Tenancy Branches across Canada, and
2. Influence policy at these Branches by offering guidelines for Dispute Resolution Officers (DRO).

The report documents a number of issues and challenges for tenants who want to apply to the RTB for compensation for their loss of quiet enjoyment. This review may also be useful for landlords, as it highlights some of the criteria used to determine what constitutes a breach of quiet enjoyment when it comes to second-hand smoke disturbances.

This section lists a number of British Columbia RTB dispute resolution decisions on second-hand smoke in multi-unit dwellings. The first four decisions highlighted below were taken from the NSRA review. This list is not an exhaustive list, and is only a sample of decisions that have been made at the BC RTB.

Victoria File # 233968 - BC Residential Tenancy Office, 2005
The tenant alleged she entered into the tenancy agreement on the basis that the building was non-smoking. Upon being exposed to second-hand smoke (SHS) from neighbouring units, the tenant moved out and was seeking financial compensation from the landlord for her moving and other expenses. The DRO ruled that the building manager had misrepresented the building as being non-smoking and that the tenant had been exposed to SHS. The DRO further stated that it was unnecessary to determine with certainty where the smoke was coming from, noting that arbitrators are not required to comply with the rules of evidence known to courts of law. The adjudicator ordered that the tenant be awarded compensation of over $1,000 for a variety of expenses related to moving, as well as for chiropractic treatments and massage therapy needed for her health problems caused by SHS exposure. The landlord was further ordered to pay the tenant’s filing costs.

Burnaby File No. 175294 - BC Residential Tenancy Office, 2006
The tenant applied for damages for loss of use and enjoyment of her suite due to the landlord’s failure to remedy the smell of SHS. The tenant vacated the premises prior to the end date of the one-year fixed term rental agreement due to the SHS infiltration. The DRO found that the landlord took reasonable steps to rectify the problem on a number of occasions. The DRO also found that the tenant failed to mitigate the loss of enjoyment by failing to report the problem was ongoing. Further, while the tenant had an air quality test performed and the tests were strongly indicative of SHS, the research associate admitted that region in question has one of the worst quality air in the province. The DRO found no proof that the tenant suffered any physical damages due solely to the air quality in her unit.

The DRO found that the landlord took prompt and reasonable steps to rectify the problem and the tenant failed to report ongoing problems after these steps were taken. She gave the landlord insufficient time to rectify the problem before giving notice. Since the tenant did not take reasonable steps to mitigate loss, she is not entitled to recover compensation for the losses claimed, as they could reasonably have been avoided.

Burnaby File # 188052 - British Columbia Residential Tenancy Office, 2006
A subsidized tenant with disabilities including asthma testified that SHS from her neighbour and her neighbour’s boyfriend negatively affected her health and breached her quiet enjoyment. The tenant testified she had been hospitalized as a result of the exposure. The tenant requested a reduction in rent until the landlord repaired the unit to stop the smoke from entering. The Dispute Resolution Officer (DRO) ordered the complainant’s unit to be investigated and sealed, with the repairs to be made within 30 days. The decision stated that if the repairs were not completed within 30 days, the tenant would be permitted to deduct $100.00 per month from her rent until they were finished.

Burnaby File # 186676 - BC Residential Tenancy Office, 2006
A different tenant in the same building as above testified that SHS from a lower floor neighbour was entering her apartment and breaching the covenant of quiet enjoyment. The tenant sought orders: (a) that the landlord comply with the Residential Tenancy Act to ensure she is free from unreasonable disturbance; (b) that the landlord repair her unit to prevent smoke from entering; and (c) that the landlord reduce her rent until the repairs are completed. The DRO accepted that exposure to SHS is a health risk and ordered the landlord to caulk or seal the tenant’s unit but did not order a rent reduction. The DRO stated that the landlord had not breached the covenant of quiet enjoyment, explaining that the covenant does not assure a tenant of no inconvenience, disruption, nuisance or disturbance by another tenant.

Burnaby File # 194712 - British Columbia Residential Tenancy Office, 2007
This case was filed following the case above (Burnaby File # 188052) in which the DRO ordered the landlord to investigate and seal the apartment to prevent SHS from entering the tenant’s unit. In the previous hearing the tenant had been awarded rent abatement if the repairs were not completed within 30 days. In this case the same tenant maintained that the repairs had not worked and requested that the landlord provide rent abatement until the SHS stopped infiltrating her apartment. The tenant’s application was dismissed.

The DRO found SHS was not severe enough to qualify as an “unreasonable disturbance”. In denying her claim that SHS was interfering with the reasonable enjoyment of her premises, the officer stated: “I am satisfied that Ms. XX is “stressing” the applicant with her smoking, but I am not persuaded, based upon the evidence presented, that the amount of smoke entering the applicants suite has resulted in an unreasonable disturbance.”

The officer also discussed a prior decision in which she had found that SHS constituted an unreasonable disturbance and stated: “I raise this case only to show that a tenancy can be ended where cigarette smoke is unreasonably disturbing other tenants.”

Source: Clean Air Coalition of BC

Young v Saanich Police Department, et al 2003 BCSC 926 (Victoria Supreme Court) Dispute of BC Residential Tenancy Branch decision.

The landlord delivered a Notice to Terminate Tenancy to the petitioners (the Youngs) that stated the odour of medically approved marihuana emanating from their suite constituted a breach of the tenancy agreement in that it disturbed, harassed or annoyed other tenants and that the petitioners had failed to remedy the breach.  Mr. Young filed an application for arbitration setting aside the Notice.  The arbitrator held that the landlord had sufficient cause to terminate the tenancy. Mr. Young challenged the arbitrator’s decision that the landlord had sufficient cause to terminate his tenancy, but the BC Supreme Court dismissed his petition. Accommodating Mr. Young’s disability required the landlord to deprive many other tenants of the enjoyment of their suites and was likely to cause the landlord to continue to lose tenants, undermining the legitimate objectives of subsidized housing.  To force the landlord and its tenants to tolerate Mr. Young’s marihuana smoke constituted undue hardship.

A BC Labour Relations Board found that Cominco’s policy banning smoking on the entire plant site was discriminatory to smokers. While the Board found that heavily addicted smokers were disabled, it also recognized that the employer’s no-smoking policy was reasonable and adopted to protect non-smokers from a known hazard.  The matter was referred back to the parties to resolve how to accommodate the heavily addicted smokers; Cominco’s smoking ban remains in effect today. 

Read the following for more information on Cominco Decision.

Manitoba Residential Tenancies Branch 2007:
Decision concerning Beverly E Reeves v. Globe General Agencies.

A provincial mediator ruled that Globe General Agencies – one of Winnipeg’s largest rental agencies – was not unreasonable when it banned smoking in its apartments for all new tenants.

Globe adopted a no-smoking policy for all their new tenancies in all buildings in the province. All existing tenants were grandfathered for the length of their tenancy. When a tenant appealed this policy, the Manitoba Residential Tenancy Branch held:

“The LL’s argument is persuasive, and 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.”

The Arbitrator determined that the landlord’s policy was reasonable and dismissed the application.

Quebec Provincial Court April 2008:
Quebec Court overturned a rental board ruling and ordered the tenant to never smoke again in her apartment that she had occupied since August 1, 2006. The landlord who is asthmatic, took the tenant to the Quebec Rental Board, but lost. The board ruled last July 4th, 2007, that the tenant could smoke in her unit, because the official lease did not contain a no-smoking clause. The landlord appealed the decision to the Quebec Courts. The landlord claimed that he had spelled out the no smoking policy in bold letters in the rental application form. The tenant claimed that she had not noticed the no smokers rule, but the Judge found that the tenant was not credible.

Relevant Documents:
The Non-smokers Rights Association has conducted a review of emerging Canadian case law on second-hand smoke in multi-unit dwellings, as well as a review of decisions made at Landlord and Tenant Tribunals across the country. These reports are provided below for your review. We have also provided a report conducted by Shelley on the emergence of case law concerning quiet enjoyment.

PDF Downloads:
Quiet Enjoyment
Canadian Case Law on Drifting Second-Hand Smoke in Multi-Unit Dwellings
Review of Second-Hand Smoke Decisions Made by Adjudicators of Landlords and Tenant Boards