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Case Law Summaries
This section highlights a few case law decisions made by the BC Supreme Court, the BC Residential Tenancy Branch as well as emerging case law in other jurisdictions across Canada. This is not an exhaustive list, and we are currently in the process of updating this list to provide more recent decisions.
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. Effective November 2008, the BC Residential Tenancy Branch now posts all dispute resolution decisions which can be accessed by the public. (For a review of RTB decisions made across Canada, refer to the NSRA review.)
BC RTB Decisions: (Source: NSRA Review)
1. BC Residential Tenancy Office, 2005 (Victoria File # 233968)
The tenant alleged she entered into the tenancy agreement on the basis that the building was non-smoking. Upon being exposed to 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.
2. British Columbia Residential Tenancy Office, 2006 (Burnaby File # 188052)
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.
3. BC Residential Tenancy Office, 2006 (Burnaby File # 186676)
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.
4. British Columbia Residential Tenancy Office, 2007 (Burnaby File # 194712)
This case was filed following the case above (Burnaby File # 188052) in which the adjudicator 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 a 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 a rent abatement until the SHS stopped infiltrating her apartment. The tenant’s application was dismissed. The adjudicator ruled that the complainant failed to provide objective evidence proving that her neighbour’s smoking constituted an “unreasonable disturbance.” The adjudicator noted that the landlord (a municipal, community housing organization) had already gone to some length to address the problem, including establishing a smoke-free building as well as offering the tenant alternative accommodation (albeit reportedly moldy). The adjudicator implied that the tenant was hypersensitive and that any amount of SHS would be too much.
Source: Clean Air Coalition of BC
5. BC Residential Tenancy Office, 2006 (Burnaby File No. 175294) 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.
Lawrence v. Kaveh, 2010 BCSC 1403 (CanLII)
A tenant applied for a judicial review of the decision made by the Residential Tenancy Branch (RTB) in 2008 claiming that the decision was incorrect.
The tenant applied to the RTB to recover rent due and for an order allowing her to retain the security deposit. She had rented an apartment that was advertised as a “no smoking, no pets” building, however, the no-smoking term was not added to the tenancy agreement. Upon moving in, the tenant smelled cigarette smoke in her unit coming from the unit downstairs, and complained to the landlord to resolve the problem. After a few weeks of continued exposure to second-hand smoke, the tenant advised the landlord she was moving out because of the adverse effects of the second-hand smoke on her and her children. She stopped payment on the rent cheque and asked for the return of her security deposit.
RTB Dispute Resolution Officer Decision
The DRO ordered in favour of the landlord requiring the tenant pay damages of $5,345 for breach of contract, and the security deposits be retained with the landlord.
Decision of the Judge
- That the DRO’s decision was patently unreasonable in two ways:
- The fact that the tenant negotiated an express exception to the implied term in the tenancy agreement prohibiting pets does not support a finding that the tenant could not therefore rely on an implied term prohibiting smoking;
- That while the tenancy agreement did not contain a no-smoking term, the tenant is entitled to quiet enjoyment and freedom from unreasonable disturbance.
- That the DRO did not consider these terms or refer to the Residential Tenancy Brancy policy guidelines on the “Right to Quiet Enjoyment.”
- That it is conceivable that the exposure of a tenant and her children to second-hand smoke, with all of the associated health risks, could interfere with quiet enjoyment or breach the tenant’s right to be free from unreasonable disturbance.
- That the DRO’s failure to consider the above terms, and her basis for rejecting the existence of an implied term prohibiting smoking in the unit constitute errors that are patently unreasonable. As the DRO at the second hearing relied on that flawed decision, those orders too must fall. I therefore set aside the decisions of the Residential Tenancy Branch and remit both the landlord’s and the tenant’s underlying disputes for rehearing.
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.
The issue of whether smoking is considered a disability has been considered numerous times over the years, and consistently Canadian courts have ruled – with one exception – that addiction to nicotine is not a disability. The one exception was a BC Labour Relations Board decision in an employment context. Cominco had banned smoking on the entire plant site and the union claimed that the policy was discriminatory because employees didn’t have time during their breaks to leave the premises to smoke. 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.
It is emphasized that this decision applied to an employment situation. In a housing situation, it is highly likely that a no-smoking policy would be found to be justified to protect the health of other tenants. (See 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 a 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 Fowler 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 smoking tenant was not credible.
The following documents have been written by various other sources to explore the emerging law on the issue of second-hand smoke in multi-unit dwellings in BC and other jurisdictions across Canada:
- Environmental Tobacco Smoke as a Breach of the Covenant
for Quiet Enjoyment, Jacob J. Shelley, University of Alberta
- Canadian Case Law on Drifting Second-Hand Smoke in Multi-Unit Dwellings, Non-Smokers’ Rights Association
- Review of Second-Hand Smoke Decisions made by Adjudicators of Landlords and Tenant Boards,
Non-Smokers’ Rights Association