Legal Precedents

It is recommended that arbitration should be your last resort. It is time-consuming, pits neighbour against neighbour and there are no guarantees in the end. By the time a tenant appears before an arbitrator, they must be able to demonstrate that they have exhausted every other possible avenue.

There are numerous laws affecting the rights and responsibilities of both tenants and landlords of multi-unit dwellings. Provincial/territorial residential tenancy legislation details the rights and responsibilities of landlords and tenants of residential premises and provides a means of settling disputes. Most residential tenancy Acts stipulate that tenants are entitled to "quiet enjoyment" of their property, which includes the right to be free from unreasonable disturbances by other tenants. While these laws usually do not specify second-hand smoke as grounds for breach of quiet enjoyment, there is emerging case law to support a claim that second-hand smoke unreasonably interferes with "quiet enjoyment".

People are voicing concerns that the tobacco smoke produced by neighbours is seeping into their apartments, causing annoyance, discomfort, and sometimes, illness. When concerns cannot be resolved between neighbours and building mangers through discussion, further action may be needed. This includes applying to your provincial residential tenancy office for a hearing to resolve the matter.

The following are possible legal options available to you if you are exposed to second-hand smoke against your will:

• Tenants can initiate an arbitration hearing under what is termed "common law" against a landlord for breach of the covenant of "quiet enjoyment". Be sure to ask for a specific remedy, including breaking your lease, having the landlord eliminate the smoke, or a reduction in the rent until the problem is resolved.
• Tenants with respiratory illness or other disabilities exacerbated by continued exposure to second-hand smoke may consider applying under the provincial Human Rights Act to bring legal action against landlords for not making reasonable accommodations to protect tenants from second-hand smoke infiltrating their homes.

See the document created by the Non-Smokers' Rights Association - Canadian Case Law on Drifting Second-hand Smoke in Multi-Unit Dwellings

**Some of the information in this section was taken from documents created by the Non-Smokers Rights Association - When Neighbours Smoke.