9. The Landlord also submitted a text exchange between the Tenant and the superintendent on May 8, 2017 as Exhibit 23. In the exchange, the Tenant reports on people smoking outside the building and the superintendent repeats that she can only ask people not to smoke there, but cannot force them to stop.
10. Section 22 of the Act sets out that a landlord may not substantially interfere with a tenant’s reasonable enjoyment of the rental unit or residential complex. The Tenant did not prove, on a balance of probabilities, that the Landlord has substantially interfered with her reasonable enjoyment by failing to adequately respond to the Tenant’s complaints about second-hand smoke coming from outside the building.
11. The Landlord has demonstrated that she is taking reasonable steps to follow up on the Tenant’s complaints by sending reminder letters to residents, posting no-smoking signs and by having her superintendent speak to people when the Tenant complains. The evidence does not establish that the Landlord is entitled to forbid residents from smoking outside of the residential complex. While the Tenant provided a copy of the Smoke-Free Ontario Act, it does not speak to smoking outside apartment buildings. The Tenant did not provide any relevant municipal by-laws that provide more enforcement options. On the other hand, the Landlord provided hearsay evidence that a municipal employee has advised her staff that the Landlord cannot enforce a no-smoking rule outside the apartment building.
10. The Landlord says that the Tenants are constantly smoking in the stairwell underneath the Landlord’s window which causes second-hand smoke to be blown into the Landlord’s house.
11. The Landlord says that the second-hand smoke is so bad in their house that their 4 year old daughter vomits in the morning and evening at least twice each week. Their daughter also pukes when she smells the smoke. In addition, the Landlord says they constantly feel dizzy, they cough and are getting sick from the smoke.
12. The Landlord says she has asked the Tenants repeatedly to smoke further away from the house, but they have refused.
13. In support of her position, the Landlord provided the Board with a picture of a lawn chair that is surrounded by approximately 60 cigarette butts at the bottom of a set of outside steps. The Tenants do not dispute that they smoke exclusively outside the rental unit and provided no evidence to suggest that they smoke far away from the house.
14. As a result, I am satisfied on the balance of probabilities that the Tenants are habitual smokers who choose to smoke regularly in a small stairwell underneath the Landlord’s window.
15. This is causing second-hand smoke to be blown into the Landlord’s house which is seriously affecting the health of their small daughter to the point where she is vomiting multiple times each week.
16. I am therefore convinced that the Tenants have breached their obligations under the Act because their second-hand smoke is seriously impairing the safety of the Landlord’s household.
1. The Landlord failed to prevent second hand marijuana smoke from infiltrating into the Tenant’s unit. Therefore, I find that the Landlords failed to meet the Landlords' obligations under subsection 20(1) of the Act to repair or maintain the rental unit and failed to comply with health standards and substantially interfered with the Tenant’s reasonable enjoyment of the premises.
19. Since it was the Landlord’s failure to remedy the problem of second hand marijuana smoke in the Tenant’s unit that caused him to decide to move, he is entitled to be compensated for his moving costs. His estimate of $300.00 is reasonable.
20. The Tenant testified that inhaling second hand smoke at first made him stoned, then when the intensity was reduced it just made him tired. However, he still worries about the health consequences. Under the circumstances that the Tenant was able to live in the premises but at a significantly reduced level of enjoyment, I am satisfied that the Tenant is entitled to an abatement of rent of 25% from April 1, 2018, when he first told the Landlord about the problem, to September 30, 2018. (6 months X $700.00 X 25% = $1,050.00)