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Last Resort Remedies
To prove that second-hand smoke has caused a loss of quiet enjoyment, evidence must be strong and compelling. The onus is on tenants (or landlords if they evict the smoking tenant) to provide proof that the amount of smoke is frequent, on-going and significantly interfering with the use and quiet enjoyment of the unit. This is not always easy to do, as there are no guidelines for what amount of smoke entering a home is considered significant and unreasonable.
So what are some last resort remedies?
Apply for a Dispute Resolution Hearing
If you’ve taken all steps possible to try and resolve the problem of smoke infiltrating your home, and you are not satisfied that the landlord has taken reasonable steps to correct it, you have the option of applying to the Residential Tenancy Branch (RTB) for an order requiring the landlord to provide quiet enjoyment and/or compensate you for your loss of quiet enjoyment.
Dispute resolution is the formal process for
resolving landlord tenant disputes and is similar to a court proceeding. Although arbitrators prefer to be consistent, their decisions are not bound by precedent. Decisions are made using the "balance of probabilities" standard of proof, which essentially comes down to a question of credibility--arbitrators must decide whose side of the story is more likely to be truthful.
In some cases, if your health is at risk and you don’t want to continue to expose yourself or your family to a hazardous substance on a frequent and prolonged basis, moving may be the best decision to protect your family. Keep in mind that you have up to two years after moving to make an application to the RTB to recover your moving costs – so keep your bills.
It is possible that a tenant could apply to the Human Rights Tribunal on the basis that the landlord did not take reasonable steps to resolve a problem of second-hand smoke infiltrating the home from a neighbouring unit. A tenant who suffers from a disability that is exacerbated by second-hand smoke, such as asthma or allergies, could take the position that the landlord has a responsibility to limit or ban smoking in order to accommodate the tenant’s disability.