Laws & Legal Issues > Case Law
There is an emerging body of Canadian case law concerning second-hand smoke in multi-unit dwellings. Based on past Residential Tenancy Branch (RTB) dispute resolution decisions in BC and across Canada however, it appears there is no consistency in the criteria used for determining what amount of smoke infiltrating a home constitutes an “unreasonable disturbance.”.
The British Columbia RTB has developed Policy Guidelines on the Right to Quiet Enjoyment. These Guidelines do not include second-hand smoke as an example of the type of disturbance that could result in a loss of quiet enjoyment. The guidelines do, however, include other examples of what could be considered a loss of quiet enjoyment – such as “unreasonable and on-going noise.”
While second-hand smoke is not specifically mentioned in the Policy Guidelines, past decisions at the RTB confirm that second-hand smoke can indeed constitute a breach of quiet enjoyment. The Guidelines state that evidence of a breach of quiet enjoyment must show that the disturbance is frequent, on-going and a significant interference with the use and enjoyment of the tenant’s home. Regarding second-hand smoke disturbances, the test often comes down to whether a tenant or a landlord can prove that the amount of smoke migrating into a unit is too much smoke - or “unreasonable” according to the average person. It is unclear however, as to what evidence is required in order to meet this test.
This section lists a number of BC Residential Tenancy Branch dispute resolution decisions on second-hand smoke in multi-unit dwellings. It also highlights a BC Supreme Court decision, a Labour Relations Board decision, as well as recent case law emerging in other jurisdictions across Canada.
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:
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
Burnaby File No. 175294 - BC Residential Tenancy Office, 2006
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
Burnaby File # 186676 - BC Residential Tenancy Office, 2006
Burnaby File # 194712 - British Columbia Residential Tenancy Office, 2007
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:
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: