The Tribunal administratif du logement terminates the lease of a tenant who does not comply with a ban on smoking in the dwelling

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

The landlady asks for the termination of the lease, the eviction of the tenant and provisional execution despite the appeal. The lease between the parties is from October 1, 2020 to September 30, 2021 at a monthly rent of $1571. An annotation to the lease states: “The building is a 100% smoke-free environment from cigarettes and cannabis (apartment, balcony, terrace).” The initial lease signed in 2018 with the previous tenant also had a smoking ban in the dwelling, on the balcony and the indoor and outdoor common areas.

The landlady’s evidence
The landlady’s rental agent testifies that she receives complaints from other tenants in the vicinity of the defendant tenant’s unit. In December 2020, the rental agent allegedly received a complaint from a tenant about the smell of cigarettes coming from the tenant’s dwelling. She notices herself the smell of cigarettes in the corridor coming from the offending tenant. She knocks on her door. The tenant tells her that she has difficulty quitting smoking, but that she is taking steps to do so. The rental agent reminds her that smoking is prohibited in the dwelling and on the balcony and she then decides to send a notice to all tenants to remind them of the smoking ban included in the lease and also to the tenant concerned.

On February 25, 2021, following other complaints, a formal notice is given to the tenant to stop smoking in her dwelling and on her balcony. The manager of the building testified that she had received a complaint of the smell of cigarettes from the tenant’s dwelling on November 18, 2020. On December 15, 2020, she received yet another complaint. She goes to the tenant’s dwelling. As soon as the tenant opens the door of her housing, she detects a strong smell of cigarettes and finds that the tenant has an air purifier. The tenant explains that she had difficulty quitting smoking. The manager informs the tenant that this is the last warning. Despite this last warning, the manager once again noticed a strong smell of cigarettes emanating from the dwelling in February 2021. According to her, the last complaint brought to her attention was dated March 29, 2021.

A tenant testified that she moved into her unit because the building was non-smoking. As of October 24, 2020, she occasionally smells the odour of cigarettes coming from the tenant’s housing. She says she is very intolerant of the smell of cigarettes, which causes her headaches and nausea. She decides to keep a logbook on the subject since she on various occasions smelled the odour of cigarettes emanating from the said dwelling. The last mention in her logbook is dated March 2, 2021.

The offending tenant’s immediate neighbour smelled a strong cigarette odour emanating from the tenant’s dwelling on two occasions in April 2021. She maintains that the smell is more intense when she opens her window. She said she was disturbed to see that some did not respect the ban on smoking in the building. She moved into the building because he is a non-smoker. She does not feel well when she perceives the smell of cigarettes, because she has trouble breathing and the smoke makes her eyes sting.

Evidence from the tenant

The tenant testifies that she moved into the unit in October 2018 and she knew that the building was non-smoking. She should not smoke, as she suffers from emphysema. She is assisted two to three times a week by a nurse to help her quit smoking. She is also monitored by a pulmonologist and other specialists. With the pandemic, cigarettes have become her best friend. She feels isolated and very lonely. She is ashamed of disturbing others and she is very sorry for it. Should the Tribunal give her a chance, she says and promises that she will not do it again.

The applicable law

Section 976 of the C.c.Q. stipulates that neighbours must accept the normal inconveniences of the neighbourhood which do not exceed the limits of the tolerance they owe themselves. In a multi-unit building, each resident must adjust his behaviour to take into account the use of the premises. To constitute a neighbourhood disturbance, it must be a situation which, by its repetition, insistence and seriousness, constitutes an excessive or unreasonable serious interference.

The jurisprudence of the Tribunal du logement has established the following:

“In this regard, neighbouring tenants must suffer the normal inconveniences that may arise from occupation in a multi-unit building.
There is general agreement in the jurisprudence that cannabis odours or smoke, when recurrent and invasive, can be a source of abnormal harassment.
The rules of good neighbourliness in terms of residential rental can be modulated on those that arise from the property. Everyone must exercise their right while respecting the rights of the other.”1
In Koreski v. Fowler, the Court of Québec held that the right of a smoker is limited by the right of the other occupants of a building to enjoy their dwelling peacefully. 2

The Tribunal’s decision
According to the Tribunal, several verbal warnings were given to the tenant to stop smoking in her dwelling and on her balcony. A formal notice was sent to this tenant on February 25, 2021 asking her to comply with the smoking ban in the lease. On a regular basis, despite warnings, the formal notice and the ban on smoking in the lease, the tenant continues to smoke in the dwelling and on the balcony. Two other tenants testified to the smell of cigarettes emanating from the offending tenant’s dwelling. Smoke circulates in the building and it is a major irritant for them that prevents them from enjoying their housing and the building.

The tenant admitted to the Court that she smoked in her dwelling. Unsuccessfully, she bought an air purifier to hide the cigarette odours and break the smoking ban on the lease. She wants to quit smoking and is taking steps to do so, but her efforts have been in vain so far.

The Tribunal concludes:

“Based on the evidence presented at the hearing, the Tribunal is of the opinion that the problem caused by smoke emanating from the tenant’s dwelling is of concern, as it constitutes an abnormal, excessive inconvenience that persists over time.
It has been shown that the tenant smokes in such a way as to annoy other tenants in the building.
Thus, the tenant, by her behaviour, disturbs the enjoyment of the premises of the other occupants of the building, despite the prohibition in the lease, which is likely to cause serious harm to the landlady and the other tenants. 3

The Tribunal terminates the tenant’s lease. The tenant was unable to quit smoking despite the landlady’s numerous warnings. The persistence of the disorder led the Tribunal to conclude that it is unnecessary to use its discretion to substitute for the termination of the lease an order of last chance to comply with the lease and to respect the smoking ban.

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